Agreement for Sale of Goods, Equipment and Related Software

Agreement for Sale of Goods, Equipment and Related Software

This Equipment Sales Agreement made this day of , 20,

between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Seller, and

, a corporation organized and existing under the laws of the state of , with its principal office located at ,

, referred to herein as Customer.

I. Sale of Equipment

Customer agrees to purchase from Seller the equipment described in the attached Exhibit A, the Equipment. Reference in this Agreement to Equipment shall be deemed to include Software except where otherwise indicated, and reference to Equipment or Software shall be deemed to include any Services to be performed.

II. Price

The price and time of payment for the Equipment (the Contract Price) is as follows:

A. $ shall be due on ;

B. $ shall be due upon receipt of shipment.

Any amounts payable by Customer under this Agreement which remain unpaid after delivery shall be subject to a late charge equal to % per month from the due date until such amount is paid.

III. Delivery

Seller shall use its reasonable efforts to deliver the Equipment to Customer between and days following order. Delivery shall be made to a domestic location designated by Customer and all transportation, shipping and handling charges shall be paid by Seller.

IV. Acceptance

The criterion for acceptance of Equipment is the successful operation of the Equipment using Seller's standard test procedures and diagnostic test programs applicable to the Equipment involved. All acceptance tests will be conducted prior to delivery and will be run by Seller personnel.

V. Title and License

Title and risk of loss to the Equipment shall pass to Customer at the time the Equipment is delivered to Customer. All Software is made available in accordance with the terms and conditions of this Agreement and Seller's Individual End User Software License Agreement.

VI. Variations and Extras

The Equipment and Services provided by Seller shall be those specified in this Agreement as accepted in writing by Seller. Extra costs caused by variations, delays, incorrect instructions, or lack of instructions may be charged by Seller and shall be paid for by Customer.

VII. Specifications and Performance

The Equipment supplied will be substantially in accordance with the specifications provided to Customer, subject to reasonable variations plus or minus.

VIII. Operation of the Equipment

Customer shall be responsible for operation of the Equipment and shall comply with all applicable rules, laws, and regulations in connection with operation of the Equipment.

IX. Infringement Indemnity

Seller will defend and indemnify Customer against a claim that the Equipment infringes a United States copyright or patent, provided that:

A. Customer notifies Seller in writing within days of the claim;

B. Seller has sole control of the defense and all related settlement negotiations; and

C. Customer provides Seller with the assistance, information and authority necessary to perform Seller's obligations under this Section IX.

(i) Modify the Equipment to be non-infringing;

(ii) Obtain for Customer a license to continue using the Equipment; or

(iii) Refund the fees paid for the Equipment.

X. Warranty and Disclaimer

A. The warranty given by Seller means that the Equipment sold by the Seller will be free from defects in workmanship and materials and will conform to applicable specifications for a Period of months from the date of shipment or hours of operation of the Equipment, whichever comes first.

Customer gives written notice to Seller of any defect within the Warranty Period or within days after the end of the Warranty Period.

B. In the event that FSE or subcontractors cannot perform the necessary diagnostics, maintenance or repair at Customer's facilities, Customer will be required to return defective Equipment to Seller's designated repair facility at no cost within days after notice.

C. Customer will pay Seller the cost of all charges if the returned Equipment proves not to be defective or if work exceeds Seller's obligations under this Warranty.

D. This Warranty extends only to the original Customer of the Equipment from Seller and does not apply to damage or defects due to misuse, improper installation, accident, neglect, modification, repair by Customer, adverse conditions, or unauthorized parts.

E. The liability of Seller shall be limited solely to correcting defects or providing replacement parts and is limited to the period of the Warranty.

IN NO EVENT SHALL TOTAL LIABILITY EXCEED THE TOTAL CONTRACT PRICE.

F. Nondisclosure

Customer agrees to hold Confidential Information in confidence during the term of this Agreement and for a period of years after termination of this Agreement.

XII. Rights in Data

Seller retains full ownership of all inventions, designs, copyrights, processes and data already made or evolved by Seller in the preparation of or during the course of any work under or resulting from this Agreement.

XIII. Limitation of Liability

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, OR USE INCURRED BY CUSTOMER OR ANY THIRD PARTY.

XIV. Indemnity

Customer shall indemnify and hold harmless Seller from and against any and all liability, damages, costs, losses and expenses arising out of or in connection with any personal injury or damage to property or business except for the negligent acts of Seller.

XV. Miscellaneous

A. If this Agreement is terminated or cancelled, Customer shall accept delivery of finished or ready for shipping Equipment and reimburse Seller for costs incurred.

B. Seller retains title to the Equipment and a security interest in the Equipment until payment in full and performance by Customer of all obligations under this Agreement.

C. Seller is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

XVI. The invalidity of any portion of this Agreement will not affect the validity of any other provision.

XVII. The failure of either party to insist upon performance shall not be construed as a waiver of any term.

XVIII. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

XIX. Any notice provided for or concerning this Agreement shall be in writing and sent by certified or registered mail to the respective address of each party.

XX. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party shall pay a reasonable sum for the successful party's attorney fees.

XXII. Any dispute under this Agreement shall be resolved by binding arbitration.

XXIII. This Agreement shall constitute the entire agreement between the parties.

XXIV. Any modification of this Agreement shall be binding only if placed in writing and signed by each party.

XXV. The rights of each party under this Agreement are personal and may not be assigned without prior written consent.

XXVI. This Agreement may be executed in counterparts.

XXVII. All applicable governmental laws, regulations, orders, and other rules will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.

Attach Exhibits