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-1- § 4.12 Form: Equipment Maintenance Agreement with an Independent Sales Organization AGREEMENT made this ____ day of ________ by and between Seller and Buyer. WHEREAS Buyer has agreed to purchase from Seller the equipment more fully described in the Approved Equipment Schedule (the "Equipment") annexed to the Equipment Sales Agreement between the parties hereto and Seller has agreed to provide maintenance services for certain of the Equipment pursuant to the following terms and conditions: 1. Covered Equipment This agreement shall apply to the equipment identified in the Approved Equipment Schedule, unless specifically excluded by an appropriate notation on said Schedule. This agreement shall not apply to the maintenance of accessories, attachments, machines or other devices not provided by Seller. 2. Term This agreement shall be effective as of the date of execution by Seller and, unless sooner terminated in accordance with the terms hereof, shall be for an initial term of one year, commencing on the date of acceptance of the Equipment covered by the Equipment Sales Agreement, unless an alternate commencement date is specified. Upon the expiration of the initial term, this agreement shall be automatically renewed for successive one year terms. Maintenance service may be terminated at the expiration of the initial one-year term and at any time thereafter by either party upon ninety (90) days' prior written notice. 3. Regular Business Hours All the services provided pursuant to this agreement shall be during Regular Business Hours. Regular Business Hours are between the hours of 9:00 a.m. and 5:30 p.m., Monday through Friday, excluding Seller holidays. 4. Maintenance Service Seller shall make all necessary adjustments and repairs to keep the Equipment in good operating condition during regular business hours, and in accordance with Seller's policies then in effect. Seller's -2- representatives shall have full access to the equipment in order to effect the necessary adjustments and repairs. Seller shall determine the preventive maintenance service required for the Equipment. All remedial maintenance service shall be provided during regular business hours after notification that the equipment is inoperative.Buyer shall provide adequate storage space for spare parts, test equipment and adequate work space, heat, light, ventilation, electric current and outlets for use by Seller's maintenance representatives. All spare parts, until incorporated in the Equipment, all test and maintenance equipment, tools and maintenance documentation shall remain the property of Seller and may be removed by Seller at any time. Replacement parts shall be installed on an exchange basis at no additional charge to Buyer when such replacement is effected at Buyer's premises by Seller's maintenance representatives. Parts removed on an exchange basis become the property of Seller. Buyer agrees that it shall not move, or permit to be moved, the Equipment without Seller's prior written consent. Maintenance service does not include providing supplies or equipment; or refinishing of the equipment; or maintenance of accessories, attachments, machines or other devices not provided by Seller; or making specification changes; or performing service connected with the relocation, insulation or reinsulation of equipment; or adding or removing accessories, attachments and other devices. Any maintenance resulting from other than the normal operation of the Equipment, including Buyer's fault or misuse of the Equipment or Buyer's failure to provide the necessary facilities or specified operating supplies or to meet Seller's site specifications shall be invoiced to Buyer as an additional charge. 5. Price and Payment Buyer shall pay to Seller the monthly maintenance charges set forth on the approved Equipment Schedule. These charges are applicable to Buyer's equipment located within one hundred (100) miles of Seller service center. Charges for the monthly service beyond 100 miles of a Seller service center shall include the cost of reasonable travel expenses which shall be billed separately. It is agreed that if after the effective date of this Agreement, there is an increase in Seller's maintenance charges and Seller gives Buyer ninety (90) days' written notice of such increase, then Seller, one year after the effective date of this Agreement and at any time thereafter may implement such increase. -3- Monthly maintenance charges for new systems shall be waived for the initial ninety (90) days of this Agreement when the commencement for the term of this Agreement is simultaneous with the acceptance date of the Equipment. The monthly maintenance charge and any additional monthly charges shall be invoiced in advance on the first day of each month commencing with the date equipment maintenance service is first provided and shall be payable by Buyer within thirty (30) days after date of invoice. Any additional or other charges shall be invoiced to Buyer as incurred and shall be due and payable upon receipt of invoice. 6. Taxes Buyer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, Buyer shall promptly pay to Seller an amount equal to any such taxes actually paid, or required to be collected or paid by Seller. 7. Conditions of Service This agreement is contingent upon proper use of the Equipment and does not cover equipment which has been modified without Seller's approval, or which has been subjected to unusual physical or electrical stress, or in which the original identification marks have been removed or altered. Seller shall not be responsible to Buyer for loss of use of the Equipment or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the Equipment by other than authorized representatives of Seller. If, in the opinion of Seller, any such alterations, additions, adjustments or repairs adversely affect Seller's ability to render maintenance service to the Equipment, Seller reserves the right to terminate this Agreement upon thirty (30) days' prior written notice to Buyer. Any service performed by Seller outside the scope of this Agreement when the cause is determined to be unrelated to equipment identified on the Approved Equipment Schedule shall be provided at Seller's then prevailing time and material rates and terms. 8. Disclaimer of Warranty SELLER MAKES AND BUYER RECEIVES NO WARRANTY, EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED -4- ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WITH RESPECT TO THIS AGREEMENT AND THE SERVICES PROVIDED.9. Indemnification Buyer shall indemnify and hold harmless Seller from any loss, cost or expense to persons or property, other than the Equipment, suffered or incurred in connection with any claim, suit or proceeding brought against Seller to the extent that it arises out of this Agreement or Buyer's possession or use of the Equipment and services provided. This indemnity shall survive the termination of this Agreement, provided that such loss, cost or expense was not caused solely by the fault of Seller. 10. Termination Seller shall have the right to terminate this Agreement upon thirty (30) days' written notice in the event that Buyer, its officers or employees violates any provision of this Agreement including, but not limited to, payment. 11. General 11.1 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. 11.2 Governing Law This Agreement and performance thereunder shall be governed by and construed in accordance with the laws of the State of New York. Any and all proceedings relating to the subject matter hereof shall be maintained in the courts of the State of New York of the Federal District Courts sitting in New York, which courts shall have exclusive jurisdiction for such purpose. -5- 11.3 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. 11.4 Force Majeure Seller shall not be liable for any delay in performance under this agreement caused by any Act of God or any other cause beyond its reasonable control. 11.5 Assignment The Buyer may not assign its rights, duties or obligations under this agreement, without the prior written consent of Seller, to any person or entity, in whole or in part. 11.6 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. BUYER By: _____________________ SELLER By: _____________________