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<br />THE DOCUMENT COMPA~T
<br />XEROX
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<br />and features to a product previously disassembled to a Xerox predetermined
<br />standard, and contains both new components and recycled components that are
<br />reconditioned; or (c) "Remanufactured", which has been factory produced
<br />following disassembly to a Xerox predetermined standard and contains both new
<br />components and recycled components that are reconditioned.
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<br />16. PURCHASE OPTIONS. You may purchase the Equipment at the end
<br />of the lease term for the Purchase Option indicated in this Agreement (i.e., either
<br />a set dollar amount or the Fair Market Value of the Equipment at the lease term's
<br />conclusion ["FMV"]). You may purchase the Equipment at any time during the
<br />lease by paying (a) all amounts then due; (b) the remaining Minimum Lease
<br />Payments in the Agreement's term [less any unearned finance, maintenance, and
<br />supply charges]; (c) a reasonable disengagement fee calculated by Xerox [the
<br />amount of such fee to be available from Xerox at any time upon request]; and (d)
<br />the applicable Purchase Option. When these amounts have been fully paid, title
<br />to the Equipment will transfer to you.
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<br />17. PROTECTION OF XEROX' RIGHTS. Unless and until you purchase
<br />the leased Equipment, you hereby authorize Xerox or its agents to execute on
<br />your behalf all documents necessary to protect Xerox' rights as the Equipment
<br />Lessor (including the perfection of Xerox' purchase money security interest that
<br />shall attach to all Equipment for which the Purchase Option is a set dollar
<br />amount).
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<br />18. MISCELLANEOUS. This Agreement constitutes the entire
<br />agreement as to its subject matter, supersedes all prior and contemporaneous oral
<br />and written agreements, and shall be construed under the laws of the State of
<br />New York (without regard to conflict-of-law principles). Xerox may retain a
<br />reproduction (e.g., electronic image, photocopy, facsimile) of this Agreement
<br />which shall be considered an equivalent to the original; in addition, Xerox may
<br />accept this Agreement either by its signature or commencing performance (e.g.,
<br />Equipment delivery). All changes to this Agreement must be made in a writing
<br />signed by both parties; accordingly, any terms on your ordering documents shall
<br />be of no force or effect. In any action to enforce this Agreement, the parties
<br />agree to waive their right to a jury trial and to pay the prevailing party's costs and
<br />expenses, including reasonable attorneys' fees.
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<br />SOFTWARE TERMS: The following additional terms apply only to transactions
<br />covering Application Software and/or Xerox-brand Printing System, DocuTech,
<br />Color, High-Volume and Digital Copier-Duplicator, or Document Centre
<br />Products:
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<br />19. SOFTWARE LICENSE. The following terms apply to copyrighted
<br />software and the accompanying documentation, including but not limited to
<br />operating system software, provided with or within the Equipment ("Base
<br />Software") as well as software specifically set out as "Application Software" on
<br />the face of this Agreement. This license does not apply to any Diagnostic
<br />Software nor to any software and accompanying documentation made subject to a
<br />separate license agreement.
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<br />A. Xerox grants you a non-exclusive, non-transferable license to use the
<br />Base Software within the United States, its territories, and possessions (the
<br />"United States") only on or with the Equipment with which (or within which) it
<br />was delivered. For Application Software, Xerox grants you a non-exclusive, non-
<br />transferable license to use this software within the United States on any single
<br />unit of equipment for as long as you are current in the payment of any indicated
<br />software license fees (including any Annual Renewal Fees). You have no other
<br />rights to the Base or Application Software and, in particular, may not (I)
<br />distribute, modify, create derivatives of, decompile, or reverse engineer this
<br />software; (2) activate any software delivered with or within the Equipment in an
<br />unactivated state; or (3) allow others to engage in same. Title to the Base and
<br />Application Software and all copyrights and other intellectual property rights in it
<br />shall at all times reside solely with Xerox and/or its licensors (who shall be
<br />considered third-party beneficiaries of these software provisions).
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<br />B. Xerox may terminate your license for any Base Software (I)
<br />immediately if you no longer use or possess the Equipment or are a lessor of the
<br />Equipment and your first lessee no longer uses or possesses it or (2) upon the
<br />termination of any agreement under which you have rented or leased the
<br />Equipment.
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<br />C. If you transfer possession of the Equipment, Xerox will offer the
<br />transferee a license to use the Base Software within the United States on or with
<br />it, subject to Xerox' then-applicable terms and license fees, if any, and provided
<br />the transfer is not in violation of Xerox' rights.
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<br />DocuBroker Form# 51 860T&C (12/1999)
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<br />D. Xerox warrants that the Base and Application Software will perform
<br />in material conformity with its published specifications for a 90-day period from
<br />the date it is delivered or, for software installed by Xerox, the date of software
<br />installation. Neither Xerox nor its licensors warrant that the Base or Application
<br />Software will be free from errors or that its operation will be uninterrupted.
<br />
<br />20. SOFTWARE SUPPORT. During the period that Xerox provides
<br />Basic Services for the Equipment, Xerox will also provide software support for
<br />the Base Software under the following terms. For Application Software, Xerox
<br />will provide this same level of support provided you are current in the payment of
<br />all Initial License and Annual Renewal Fees (or, for programs not requiring
<br />Annual Renewal Fees, the payment of the Initial License Fee and the annual
<br />"Support Only" Fees):
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<br />A. Xerox will assure that Base and Application Software performs in
<br />material conformity with its published specifications and will maintain a toll-free
<br />hotline during standard business hours to answer related questions.
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<br />B. Xerox may make available new releases of the Base or Application
<br />Software that primarily incorporate coding error fixes and are designated as
<br />"Maintenance Releases". Maintenance Releases are provided at no charge and
<br />must be implemented within six (6) months after being made available to you.
<br />Each new Maintenance Release shall be considered Base or Application Software
<br />governed by these Software Terms. . New releases of the Base or Application
<br />Software that are not Maintenance Releases, if any, may be subject to additional
<br />license fees at Xerox' then-current pricing and shall be considered Base or
<br />Application Software governed by these Software Terms (unless otherwise
<br />noted).
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<br />C. Xerox will use reasonable efforts, either directly and/or with its
<br />vendors, to resolve codiOg errors or provide workarounds or patches, provided
<br />you report problems in the manner specified by Xerox.
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<br />D. Xerox shall not be obligated (a) to support any Base or Application
<br />software that is two or more generations older than Xerox' most current release or
<br />(b) to remedy coding errors if you have modified the Base or Application
<br />Software.
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<br />E. Xerox may annually adjust the Annual Renewal and Support-Only
<br />Fees, each such increase not to exceed 10%. (For state and local-government
<br />customers, this adjustment shall take place at the commencement of each of your
<br />annual contract cycles.)
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<br />2 I. DIAGNOSTIC SOFfW ARE. Software used to maintain the
<br />Equipment and/or diagnose its failures or substandard performance (collectively
<br />"Diagnostic Software") is embedded in, resides on, or may be loaded onto the
<br />Equipment. The Diagnostic Software and method of entry or access to it
<br />constitute valuable trade secrets of Xerox. Title to the Diagnostic Software shall
<br />at all times remain solely with Xerox and/or Xerox' licensors. You agree that (I)
<br />your acquisition of the Equipment does not grant you a license or right to use the
<br />Diagnostic Software in any manner and (2) that unless separately licensed by
<br />Xerox to do so, you will not use, reproduce, distribute, or disclose the Diagnostic
<br />Software for any purpose (or allow third parties to do so). You agree at all times
<br />(including subsequent to the expiration of this Agreement) to allow Xerox to
<br />access, monitor, and otherwise take steps to prevent unauthorized use or
<br />reproduction of the Diagnostic Software.
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<br />GOVERNMENTAL TERMS: The following additional terms apply only to state
<br />and local government customers:
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<br />22. GOVERNMENT CUSTOMER TERMS
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<br />A. FUNDING. You state that it is your intent to make all payments
<br />required under this Agreement. In the event that (I) through no action initiated by
<br />you your legislative body does not appropriate funds for the continuation of this
<br />Agreement for any fiscal year after the first fiscal year and has no funds to do so
<br />from other sources and (2) you have made a reasonable but unsuccessful effort to
<br />find a viable assignee within your general organization who can continue this
<br />Agreement, this Agreement may be terminated. To effect this termination, you
<br />shall, 30 days prior to the beginning of the fiscal year for which your legislative
<br />body does not appropriate funds, send Xerox written notice stating that your
<br />legislative body failed to appropriate funds and that you have made the required
<br />effort to find an assignee. Your notice must be accompanied by payment of all
<br />sums then owed Xerox under this Agreement and must certify that the canceled
<br />Equipment is not being replaced by equipment performing similar functions
<br />during the ensuing fiscal year. In addition, you agree at your expense to return
<br />the Equipment in good condition to a location designated by Xerox and that,
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