Fill and Sign the 11 Form Equipment Maintenance Agreement with a

-1- § 4.11 Form: Equipment Maintenance Agreement with a Manufacturer Agreement made this _____ day of _________ by and between Seller and Buyer. WHEREAS the Seller desires to keep the Buyer's equipment in satisfactory and efficient operation and the Buyer desires to keep its equipment in satisfactory and efficient operation. NOW THEREFORE in consideration of the promises made herein, the parties hereto agree as follows: 1. Scope The Seller shall provide maintenance services to the Buyer for the equipment identified in the Equipment Schedule attached hereto (the "Equipment"), at the specified site in the Equipment Schedule and in accordance with the terms and conditions of this agreement. 2. Equipment Maintenance Services2.1 Preventive Maintenance The Seller shall install mandatory and optional engineering changes and provide preventive maintenance and parts to maintain the Equipment in good operating condition, as determined by the Seller. 2.2 Remedial Maintenance The Seller shall provide remedial maintenance, as required, during the days of the week and hours of the days identified in the Equipment Schedule. All components located at the same site and interconnected by power cables are required to be subject to the same designated remedial hours. If additional machines are added to the Equipment listed in the Equipment Schedule and are to be maintained, such additions shall be accepted by the Seller at the then current maintenance rates. 2.3 Other Hours If remedial maintenance is requested by the Buyer outside the remedial maintenance hours, the Seller shall provide such remedial maintenance subject to the availability of its field engineers, at it s hourly rates then in effect. Travel time to and from the Buyer's premises shall be included in those charges. -2- 2.4 Parts Parts necessary to insure the proper functioning of the equipment shall be furnished at no additional cost. Parts replaced under preventive or remedial maintenance shall become the property of the Seller. 2.5 Relocation of Equipment The Seller shall be obligated to provide maintenance service only at the specified site. If the customer desires to relocate any Equipment, the customer shall give appropriate notice to the Seller of its intention to relocate the equipment and maintenance arrangements shall be negotiated between the parties. 3. Term The term of this maintenance agreement shall commence on the date that the Equipment is installed at the Buyer's premises. This maintenance agreement shall have an initial term of one year for each unit of Equipment. Thereafter, the term of this maintenance agreement shall continue until terminated by either party upon ninety days' prior written notice. 4. Principal Period The Seller shall provide the Buyer with on-call remedial maintenance service during the Principal Period of Maintenance. The Principal Period of Maintenance shall consist of eight consecutive hours per day between the hours of 8:30 a.m. and 5:30 p.m., for five days per week, Monday thru Friday, with the exception of Seller holidays. The frequency and duration of preventive maintenance shall be determined by the Seller. 5. Buyer Responsibilities 5.1 Field Engineering Space The Buyer shall provide adequate working space within a reasonable distance of the Equipment for use by the Seller's field engineering personnel and facilities for storage and safekeeping of test equipment and spare parts. 5.2 Care of Equipment -3- The Buyer shall be responsible for use, care and cleaning of the Equipment in accordance with instructions provided by the Seller. 5.3 Additional Devices The Buyer agrees not to employ additional attachments, features, or devices to the Equipment, make alterations to the Equipment, or permit the maintenance of the Equipment by other than the Seller's personnel without the written consent of the Seller. The Seller shall not be liable for loss or damage to the Buyer resulting from unauthorized additional attachments, and the Buyer shall be liable to the Seller for any repair or damage costs incurred by the Seller as a result of the addition of unauthorized attachments. 5.4 Notification When maintenance services are required, the Buyer shall promptly notify the Seller's maintenance personnel and allow full access to the Equipment to the Seller for maintenance services. 6. Charges 6.1 Invoices The Buyer agrees to pay the maintenance charges upon submission of the Seller's invoice. Invoices shall be submitted monthly on the first day of each month in advance. 6.2 Commencement The monthly maintenance charge for each unit of Equipment shall commence on the date each such unit is installed and certified ready for use by the Seller. 6.3 Exclusion The monthly maintenance charges under this agreement do not include and the Buyer specifically assumes the cost of the following: (a) supplies such as ribbons, cards, paper tape, magnetic tape and disks; (b) refinishing or painting of the Equipment; (c) installation or moving of any unit of Equipment; (d) repair of Equipment damage attributable to the fault or negligence of the Buyer; (e) repair of Equipment which was -4- not under an equipment maintenance contract from the Seller immediately prior to the commencement date of maintenance.6.4 Suspension This agreement may be suspended by the Seller without notice if payment is thirty days in arrears or it may be terminated by the Seller without notice if payment is ninety days in arrears. 6.5 Taxes Any applicable local, state or federal taxes shall be added to any of the charges specified. 6.6 Changes The monthly maintenance charges hereunder are subject to change by the Seller on thirty days' prior written notice to the Buyer after the expiration of the one-year initial term. 7. Warranty 7.1 Normal Use The Seller warrants that under normal use and service, all Equipment which is continuously maintained in accordance with this agreement from the date of its installation shall remain in satisfactory operating condition. The Seller's sole obligation under this warranty shall be to repair any item of equipment that is repairable or at its option, refurbish, overhaul, rebuild, or replace any item of Equipment that has been promptly reported as defective in material or workmanship by the Buyer to the Seller and which has been determined by the Seller to have been defective. 7.2 Disclaimer THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY THE SELLER. THE SELLER MAKES AND THE BUYER RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SELLER SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR FOR LOSS OF -5- PROFITS OR FOR ANY OTHER SIMILAR DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY A DELAY IN THE FURNISHING OF MAINTENANCE SERVICES UNDER THIS AGREEMENT.8. General 8.1 Entire Agreement Each party acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this agreement. This agreement may not be modified or altered except by a written instrument duly executed by both parties. 8.2 Governing Law This agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New York. 8.3 Enforceability If any provision of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. 8.4 Force Majeure Seller shall not be liable for any delay in performance under the agreement covered by an Act of God or any other cause beyond its reasonable control. 8.5 Assignment The Buyer may not assign this agreement without the prior written consent of Seller. 8.6 No Waiver The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. -6- BUYER By: ______________________ SELLER By: _____________________ _