Hardware Purchase Agreement

Hardware Purchase Agreement With a Manufacturer

AGREEMENT made this day of by and between and :

1. Purchase of Equipment

Buyer agrees to purchase from Seller, and Seller by its execution of this agreement agrees to sell to Buyer, on the terms and conditions set forth herein, all of the equipment and computer systems as set forth in the Equipment Schedule attached hereto (hereinafter referred to individually and collectively as the "Equipment"). All orders are subject to acceptance at Seller's plant in New York, and Seller reserves the right to reject any order. Upon acceptance of this agreement by the Seller, the parties will be bound by the terms of this agreement.

2. Price and Payment

The Buyer agrees to pay the purchase price for the Equipment as set forth in the Equipment Schedule upon the date of installation. Buyer shall deposit with the Seller an amount equal to ten percent (10%) of the purchase price of the Equipment upon acceptance of this agreement, which amount shall be applied to the purchase price of the Equipment. The prices in the Equipment Schedule are F.O.B. the Seller's plant in New York. All transportation, rigging, draying, insurance, license fees and any other such charges shall be paid by the Buyer.

3. Title and Security Interest

Title to the Equipment shall vest in the Buyer upon date of shipment of the Equipment to Buyer. Seller shall retain a security interest in the Equipment until the entire balance of the Equipment price and all other monies payable hereunder are paid in full. The Buyer shall execute, upon request by the Seller, financing statements deemed necessary or desirable by the Seller to perfect its security interest in the equipment. Buyer authorizes Seller to file a copy of this security agreement or a financing statement with the appropriate state authorities at any time thereafter as a financing statement in order to perfect Seller's security interest. A financing statement may be filed without Buyer's signature on the basis of this security agreement where allowed by law. Buyer shall keep the Equipment in good order and repair until the purchase price has been paid in full and shall promptly pay all taxes and assessments upon the Equipment or use of the Equipment.

4. Risk of Loss

Risk of loss or damage to the Equipment shall pass to the Buyer upon delivery of the Equipment to the common carrier, regardless of whether the purchase price has been paid in full. Unless advised otherwise, the Seller may insure the Equipment shipped to full value and all such insurance costs shall be for the Buyer's account. The Buyer shall inspect the Equipment immediately upon receipt and shall promptly file any applicable claims with the carrier when there is evidence of damage during shipping.

5. Installation

The installation shall be performed by the Seller during the Seller's normal working hours at no additional charge to the Buyer. The Equipment shall be installed and placed in good working order by the Seller.

The Buyer shall provide a suitable installation environment and shall prepare the site to meet the Seller's installation specifications which have been provided to the Buyer and the site shall be ready to receive the Equipment at the time scheduled for delivery. It shall be the Buyer's responsibility to maintain the environmental conditions meeting the Seller's specifications. The Buyer shall provide adequate working space within reasonable distance of the Equipment for use by the Seller's personnel.

The first business day following that on which (a) the Equipment has been placed in good working order or (b) the Equipment is delivered and the Buyer fails to provide a suitable installation environment shall be considered the date of installation of the Equipment.

6. Warranty

SELLER WARRANTS TO THE BUYER THAT THE EQUIPMENT SHALL BE IN GOOD WORKING ORDER ON THE DATE OF INSTALLATION AND THAT THE EQUIPMENT SHALL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AT THE TIME OF DELIVERY. THE SELLER'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED SOLELY TO THE SELLER MAKING, AT SELLER'S COST AND EXPENSE, SUCH REPAIRS AND REPLACEMENTS AS ARE NECESSARY TO PLACE THE EQUIPMENT IN GOOD WORKING ORDER AND TO CONFORM THE EQUIPMENT TO THE SELLER'S PUBLISHED SPECIFICATIONS. ANY ADDITIONAL WARRANTY PROTECTION IS AVAILABLE ONLY IN ACCORDANCE WITH THE SELLER'S STANDARD SERVICE AND MAINTENANCE AGREEMENT FOR MAINTENANCE OF EQUIPMENT. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Limitation of Liability

In no event shall Seller be liable for loss of profits, indirect, special, incidental, or consequential damages arising out of any breach of this agreement or obligations under this agreement. Seller shall not be liable for any damages caused by delay in delivery, installation, or furnishing of the Equipment hereunder. The Buyer shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which the equipment is to function. No action arising out of any claimed breach of this agreement or transactions under this agreement may be brought by either party more than two years after the cause of action has accrued. Seller's liability under this agreement shall in no event exceed the purchase price of the Equipment.

8. Default

The failure of the Buyer to perform its obligations under this agreement including but not limited to payment in full of the purchase price for the Equipment, or the filing of any voluntary or involuntary petition under the Bankruptcy Code, insolvency, assignment for the benefit of creditors, or liquidation of the Buyer's business shall constitute a default under this agreement and shall afford the Seller all the remedies of a secured party under the Uniform Commercial Code. In the event of default, Seller may, with or without demand or notice to Buyer, declare the entire unpaid amount immediately due and payable, enter the premises where the Equipment is located and remove it, and sell any or all the Equipment as permitted under applicable law. The Seller may, in addition to any other remedies which the Seller may have, refuse to provide service on the Equipment under any applicable maintenance agreement relating to the Equipment then in effect between the parties at the time of the default.

9. Taxes

Buyer shall pay to Seller any tax on the Equipment or the equipment's use, however designated, levied or based by any taxing authority whenever the Seller must pay the tax from the Buyer according to applicable law, except any tax based on net income.

10. Indemnity

Seller shall defend or settle any suit or proceeding brought against Buyer based on a claim that Equipment sold hereunder constitutes an infringement of any existing United States patent, copyright or trade secret providing that Seller is notified promptly in writing and is given complete authority and information required for the defense. Seller shall pay all damages and costs awarded against Buyer, but shall not be responsible for any cost, expense or compromise incurred or made by Buyer without the Seller's prior written consent. If any Equipment is in the opinion of the Seller likely to or does become the subject of a claim for patent infringement, the Seller may, at its sole option, procure for the Buyer the right to continue using the Equipment or modify it to become non-infringing. If the Seller is not reasonably able to modify or otherwise secure the Buyer the right to continue using the Equipment, the Seller shall remove the Equipment and refund the Buyer the amounts paid in excess of a reasonable rental for past use.

The Seller shall not be liable for any infringement or claim based upon use of the Equipment in combination with other equipment or with software not supplied by the Seller or with modifications made by the Buyer.

11. General

11.1 Force Majeure

Seller shall not be liable for Seller's failure to perform or for delay in performance of Seller's obligations under this agreement if such performance is prevented, hindered or delayed by reason of any cause beyond the reasonable control of the Seller.

11.2 Assignment

This agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other.

11.3 Attorney's Fees

Buyer agrees to pay to Seller any reasonable attorney's fees and other costs and expenses incurred by Seller in connection with the enforcement of this agreement.

11.4 Governing Law

This agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New York.

11.5 Entire Agreement

Each party acknowledges that it has read this agreement, fully 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 the subject matter of this agreement. This agreement may not be modified or altered except by a written instrument duly executed by both parties.

11.6 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.

11.7 No Waiver

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.