HomeMy WebLinkAboutLease Agreement with Xerox for WWTP Fax Equipment
LEASE AGREEMENT
Full Legal Name
Customer Name (Bill to) CITY OF MERIDIAN
DBA/Name Overflow
Slreet Address 3401 NO TEN MILE
Box#/RoUling
City, State MERIDIAN, ID
Zip Code 83642~5409
Tax ID# x
Customer Name (Install) CITY OF MERIDIAN
DBA/Name Over.flow (ifreq'd)
Installed at Street Address 3401 NO TEN MILE RD
Floor/Room/Routing
City, Stale MERIDIAN, lD
Zip Code 83642-5409
County Installed In ada
Customer Requested Install Date 05/1512007
L P tInt f
XEROX~I
Check all that apply
o Assoc.lCoop. Name:
I&lNegotiated Contract #:07144fi7Oi
DValue Added Services:
o Attached Customer P.O. #s:
Lease:
~ State or Local Government Customer
lnt. Rate: % Total Int. Payable: $
o ReplacementIModification of Prior Xerox Agreement
Agreement covering Xerox Equipment Serial# (or 95#):
is hereby 0 modified 0 replaced Effective Dale:
Comments:
Lease Information Lease Term :
~Supplies included in Base/Print Charges
o Refin. of Prior Agrmt. : 0 Xerox (95#):
Amt Refin: $ Int Rate: %
o DSA Contract #: -
Supplies:
60 months
o 3rd Party Eq.
Totallnt Payable: $
ease aymen orma Ion
Product Purchase Down Prey Fin'l
(with serial number, if in place equipment) Option Payment Install .lnterm
W5050PH W5050 PRNT WIHCF $FMV 1$
1 l550FCFIN 1 lCONVST APL 1 )WSCNPK
Customer Ed
Analvst Services
Min. Lease PaYment FreQ.
(periodic. excluding excess meter charges)
o Monthly o Quarterly
o Semi-Annual o Annual
o Other
$
230.68
: MINIMUM LEASE PAYMENT (excl. of applic. taxes)
o Adiustment Period
Period A - Mos. Affected: Period B - Mos. Affected:
Periodic Base Charge Periodic Base Charge
Print Charge Meter 1: Print Charge Meter 1:
Prints 1 Prints 1 -
Prints Prints
Prints Prints
Print Charge Meter 2: Print Charge Meter 2:
Prints 1 - Prints I -
Prints Prints
Periodic Min.# of Prints Periodic Min.# of Prints
(based on Meter 1 Print Charges) (based on Meter 1 Print Charges)
o A Iication Software
Software Title
Min. Lease Payment Mode
o Advance 0 Arrears
Price Information
Periodic Base Charge
Print Charge Meter 1:
Prints 1
Prints
Prints
Print Charge Meter 2:
Prints I -
Prints
Periodic Min.# of Prints
(based on Meter I Print Charges)
+
DPu h eelS
r
o
OF'd
rc as UDD les Cash ill
Reorder # Qty Descrintion 'rice
Total Price '"
itial License Fee
o Cash 0 Finance
XEROX
ModeV
Serial #
NM9140794
Final Allowance
Princi al Pa ment #:
Total Initial License Fees '"
o K-16 Billing
Susoension
(check I as required)
Months affected
o June only
o July only
o August only
o JUIle - July
o July - August
Additional Options (check all that apply)
o Run Length Plan ~Fixed Price Plan
o Per-Foot Pricing
o Extended Service Hours:
Description: / $ 0 mo.
o Attached Addenda:
~ Trade-In Allowance
Manufacturer
Total Allowance Applied to:
Total Allowance '"
DTrade-In Equip. Balance:
OPrice of Replcmnt. Equip.: $
o Other Addenda:
Tille-
Worksheet: H24637
Unit: I
Dale:
'ffJ0I2007 J 1:28:26
Signature:
\\tJ
Agreement Presented By:
Xerox Name' Michelle Barsness Phone:(20SB84-5954
FOR AUTHOHIZED HQ INTERNAL USE ONLY:
Accepted: Xerox Corporat.ion
By:
(Siglu.l1uy(~ (~rAl/lh()l'i~~(!d ,S'igner)
www.xerox.com
Xerox Form# 51860 (05/2005)
GENERAL TERMS: The following terms apply to all lease transactions:
I. PRODUCTS. The term "Products" shall refer collectively to all equipment (the
"Equipment"), software, and supplies ordered UIlder this Agreement. You represent
that the Products are being ordered for your own business use (rather than resale)
and that they will not be used for personal, household or family purposes.
2. NON-CANCELABLE LEASE. THIS AGREEMENT IS A LEASE AND IT
CANNOT BE CANCELED OR TERMINATED EXCEPT AS EXPRESSLY
PROVIDED HEREIN, AND YOUR OBLIGATION TO MAKE ALL PAYMENTS
DUE OR TO BECOME DUE SHALL BE ABSOLUTE AND UNCONDITIONAL
AND SHALL NOT BE SUBJECT TO ANY DELAY, REDUCTION, SET-OFF,
DEFENSE COUNTERCLAIM OR RECOUPMENT FOR ANY REASON
WHATSOEVER, IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER. ANY CLAIM AGAINST XEROX MAY BE
ASSERTED SOLELY AGAINST XEROX IN A SEPARATE ACTION.
3. LEASE COMMENCEMENT, PAYMENT, TAXES & CREDIT HISTORY.
A. The lease term for this Agreement shall commence upon installation of the
Equipment; provided, however, for customer-installable Equipment, the lease term
for this Agreement shall commence upon delivery of the Equipment.
B. Invoices are payable upon receipt and you agree to pay Xerox each Minimum
Lease Payment, all Print Charges and all other sums due as follows: (i) if the
invoice displays a due date, payment is due and must be received by Xerox on or
before said due date, or (ii) if the invoice does not display a due date, payment is
due and must be received by Xerox no later than thirty (30) days after the invoice
date. Reslrictive covenants on instruments or documents submitted for or with
payments you send to Xerox will not reduce your obligations.
C. You shall be responsible for any and all applicable Taxes, which will be
included in Xerox's invoice UIlless you provide proof of your tax exempt status.
"Taxes" shall mean any tax, assessment or charge imposed or collected by any
governmental entity or any political subdivision thereof, however designated or
levied, imposed on this Agreement or the amoUllts payable to Xerox by you for the
billing of Products, Print Charges, services and maintenance of any kind; Taxes
include, bul are not limited to, sales and use, rental, excise, gross receipls and
occupational or privilege taxes, plus any interest and/or penalty thereon, but
excluding any personal property taxes and taxes on Xerox's net income. If a taxing
aUlhority determines that Xerox did not collect all applicable Taxes, you shall
remain liable to Xerox for such additional Taxes.
D. You, to the extent required by applicable law, authorize Xerox (or its agent) to
obtain credit reports, make such other credit inquiries as Xerox may deem necessary
at any time, furnish payment history information to credil reporting agencies, and
release to prospective assignees of this Agreement or any rights hereunder credit-
related information Xerox has about you and this Agreement.
4. BASIC SERVICES. As a mandatory part of a lease, Xerox (or a designated
servicer) will provide the following Basic Services UIlder this Agreement (unless
you are acquiring Equipment for which Xerox does not offer Basic Serviccs; such
Equipment to be designated as "No Syc."):
A. REPAIRS & PARTS. Xerox will make repairs and adjustments necessary to
keep Equipment in good working order (including such repairs or adjustments
required during initial installation). Parts required for repair may be new,
reprocessed, or recovered.
B. HOURS & EXCLUSIONS. Unless otherwise stated, Basic Services will be
provided during Xerox's standard working hours (excluding Xerox-recognizcd
holidays) in areas within the United States, its territories, and possessions open for
repair service for the Equipment at issue. You agree to give Xerox reasonable
access to the Equipment. Basic Services shall coyer repalTS and adjustments
required as a result of normal wear and tear or defects in materials or workmanship
(and shall exclude repairs or adjustments Xerox determines to relate to or bc
affected by the use of options, accessories, or other connected products not serviced
by Xerox, as well as any non-Xerox alterations, relocation, service, supplies, or
consumables). You agree to use Equipment in accordance with, and to perform all
operator maintenance procedures for Equipment as set forth in, the applicable
manuals provided by Xerox.
C. INSTALLATION SITE & METER READINGS. The Equipment installation
site must confotm to Xerox's published requirements throughout the term of this
Agreement. If applicable, you agree to provide meter readings in the manner
prescribed by Xerox. If you do not provide Xerox with meter readings as required,
Xerox may estimate them and bill you accordingly.
D. EQUIPMENT REPLACEMENT. If Xerox is UIlable to maintain the
Equipment as described above, Xerox will, as your exclusive remedy for Xerox's
failure to provide Basic Services, replace the Equipment with an identical product
or, at Xerox's option, another product of equal or greater capabilities. If a
replacement product is proyided pursuant to this Section, there will not be an
Xerox Form# 51860t&e (0512005)
additional charge for the replacement product and, except as set forth in the section
ofthis Agreement titled "MAINTENANCE COMPONENT PRICE INCREASES",
there will not be an additional charge for Basic Services during the then-current
term during which Basic Services are being provided.
E. CARTRIDGE PRODUCTS, If Xerox is providing Basic Services for
Equipment utilizing cartridges designated by Xerox as customer replaceable UIlits,
including copy/print cartridges and xerographic modules or fuser modules
("Cartridges"), you agree to use only unmodified Cartridges purchased directly
from Xerox or its authorized resellers in the United States and the failure to use
such Cartridges shall void any warranty applicablc to such Equipment.
F. PCIWORKSTATION REQUIREMENTS, In order to receive Basic Services
and/or Software Support for Equipment requiring connection to a PC or
workstation, you must utilize a PC or workstation that either (1) has been provided
by Xerox or (2) meets Xerox's published specifications.
G. DELIVERY AND REMOVAL. Xerox will be rcsponsible for all standard
delivery and removal charges. You will be responsible for any non-standard
delivery or removal charges incurred.
5, WARRANTY DISCLAIMER & WAIVERS. XEROX DISCLAIMS, AND
YOU WAIVE, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE. The parties intend this Agreement to
be a "finance lease" under Article 2A of the Uniform Commercial Code. Except to
the extent expressly provided, herein and to the extent permitted by applicable law,
you waive all rights and remedies conferred upon a lessee by said Article.
6. INTELLECnJAL PROPERTY INDEMNITY. Xerox, at its expense, will
defend you from, and pay any settlement agreed to by Xerox or any final judgment
for, any claim that a Xerox-brand Product infringes a third party's U.S. intellectual
property rights, provided you promptly notify Xerox of the alleged infringement
and permit Xerox to direct the defense. Xerox is not responsible for any non-Xerox
litigation expenses or settlements UIlleSS it preapproves them in writing. To avoid
infringement, Xerox may modify or SUbslitute an equivalent Xerox-brand Producl.
refund the price paid for the Xerox-brand Product (less the reasonable rental value
for the period it was available to you), or obtain any necessary licenses. Xerox is
not liable for any infringement-related liabilities outside the scopc of this Section
including, but not limited to, infringement based upon a Xerox-brand Product being
modified to your specifications or being used or sold with products not proyided by
Xerox.
7. LIMITATION OF LIABILITY. Xerox shall not be liable to you for any direct
damages in excess of $ 10,000 or the amoUllts paid hereUllder, whichever is greater,
and neither party shall be liable to the other for any special, indirect, incidental,
consequential or punitive damages arising out of or relating to this Agreement,
whether the claim alleges tortious conduct (including negligence) or any other legal
theory. The above-stated limitation of liability shall not be applicable to any
specific indemnification obligations set forth in this Agreement. Any action you
take against Xerox must be commenced within two (2) years after the event that
caused it.
8. ASSIGNMENT.
A. If you wish to assign any rights or obligations UIlder this Agreement, you shall
provide a written notice to Xerox of such request for consent, with said notice
including the name of the proposed assignee. Your request to assign this
Agreement will be granted by Xerox if: (1) you are not in default under this
Agreement or any other agreement with Xerox; (2) the proposed assignee agrees to
the section of this Agreement titled "LEASE COMMENCEMENT, PAYMENT,
TAXES & CREDIT HISTORY" as applicable to it, for the purposes of the
proposed assignment; (3) the proposed assignee meets Xerox's then current credit
criteria for similar transactions as determined by Xerox in its sole discretion; and,
(4) you and the proposed assignee execute a writing, in a form acceptable to Xerox,
confirming said assignment. Assignment by you requires the written consent of
Xerox and may not be accomplished by operation of law.
B. Xerox may assign this Agreement, in whole or in part, to a parent, subsidiary or
affiliate of Xerox, or to a person or entity for the purposes of securitizing a pool of
assets or as part of a third party [mancial transaction without pri?r notic.e to (?u;
provided, however, any proposed assignment to a person or entity not Identified
previously in this sentence shall require your prior written consent. In the event of
an assignment permitted by the preceding sentence, Xerox, without notice to you,
may release informalion it has about you related to this Agreement.. ~ach
successive assignee of Xerox shall have all of the rights but none of the obligatIOns
of Xerox hereUllder. You shall continue to look to Xerox for performance of
Xerox's obligations, including the provision of Basic Services, and you hereby
waive and release any assignees of Xerox from any such claim relating to or arising
from the performance of Xerox's obligations hereUllder. You shall not assert :my
defense, cOUllterclaim or setoff that you may have or claim against Xerox agamst
4/3012007
Page 2 of 6
any assignees of Xerox. In the event of an assignment by Xerox, you shall remit
payments due in accordance with remittance instructions of the assignee.
9. MINIMUM LEASE PAYMENTS. Each Minimum Lease Payment (which
may be billed on more than one invoice) includes a Periodic Base Charge, and may
include a Periodic Minimum Number of Prints. The Minimum Lease Payments,
along with any additional Print Charges for prints made in excess of the Minimum
Number of Prints, cover your cost for the use of the Equipment and its maintenance
(provided as Basic Services).
10. MAINTENANCE COMPONENT PRICE INCREASES. Xerox may armually
increase that amoUllt of the Minimum Lease Payment and Print Charges you are
charged for maintenance of the Equipment (the "Maintenance Component"), each
such increase not to exceed 10%. (For state and local goyernment customers, this
adjustment shall take place at the commencement of each of your annual contract
cycles. )
J 1. TITLE, RISK & REWCATION. Title to the Equipment shall remain with
Xerox UIltil you exercise your option to purchase it. Until you exercise your option
to purchase the Equipment, you agree that: (a) it shall remain personal property; (b)
you will not attach any of it as a fixture to any real estate; (c) you will not pledge,
sub-lease or part with possession of it or file or permit to be filed any lien against it;
and, (d) you wjJJ not make any permanent alterations to it. The risk of loss due to
your fault or negligence, as well as theft, fire or disappearance, shall pass to you
upon shipment from a Xerox controlled facility. The risk of loss due to all other
causes shall remain with Xerox unless and UIltil you exercise your option to
purchase the Equipment. Until title passes to you, all Equipment relocations must
be arranged (or approved in advance) by Xerox and shall be at your expense. While
Equipment is being relocated, you are responsible for all payments required to
Xerox under this Agreement. Equipment carmot be relocated outside of the United
States, its territories or possessions UIltil you haye exercised the Purchase Option
indicated in this Agreement. If you acquire tille to the Equipment, you must comply
with all applicable laws and regulations regarding the export of any commodity,
technology and/or software. All parts/materials replaced, including as part of an
upgrade, will become Xerox's property.
12. DEFAULT & REMEDIES; LATE CHARGES & COLLECTION COSTS.
A. For any payment not received by Xerox within ten (10) days of the due date as
set forth herein, Xerox may charge, and you agree to pay, a late charge equal to the
higher of five percent (S%) of the amOUllt due or $25 (not to exceed the maximum
amoUllt permined by law) as reasonable collection costs.
B . You will be in default UIlder this Agreement if (l) Xerox does not receive any
payment within fitieen (IS) days after the date it is due or (2) if you breach any
other obligalion hereunder. If you default, Xerox, in addition to its other remedies
(including the cessation of Basic Services), may require immediate payment, as
liquidated damages for loss of bargain and not as a penalty, of: (a) all amounls then
due, plus interest on all amounts due from the due date until paid at the rate of one
and one-half percent (1.S%) per month (not to exceed the maximum amoUllt
permitted by law); (b) the remaining Minimum Lease Payments in the Agreement's
term less any UIleamed fmance, maintenance, and supply charges (as reflected on
the lessor's books and records); (c) a reasonable disengagement fee calculated by
Xerox that will not exceed fifteen percent (lS%) of the amoUllt in (b) above (said
amount is available from Xerox upon request); and (d) all applicable Taxes. You
also shall either (1) make the Equipment available for removal by Xerox when
requested to do so by Xerox and, at the time of removal, the Equipment shall be in
the same condition as when deliyered (reasonable wear and tear excepted), together
with any related software, or (2) purchase the Equipment "AS IS, WHERE IS" and
WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE by paying
Xerox the Purchase Option and all applicable Taxes. Xerox's decision to waive or
forgive a particular default shall not prevent Xerox from declaring any other
default. In addition, if you default under this Agreement, you agree to pay all of the
costs Xerox incurs to enforce its rights against you, including reasonable attorneys'
fees and actual costs.
13. CARTRIDGES. Cartridges packed with Equipment and replacement
Cartridges may be new, remanufactured or reprocessed. Remanufactured and
reprocessed Cartridges meet Xerox's new Cartridge performance standards and
contain new and/or reprocessed components. To enhance print quality, the
Cartridge(s) for many models of Equipment have been designed to cease
fUllctioning at a predetermined point. In addition, many Equipment models are
designed to function only with Cartridges that are newly manufactured original
Xerox Cartridges or with Cartridges intended for use in the U.S. Equipment
configuration that permits use of non-newly manufactured original Xerox
Cartridges may be available from Xerox at an additional charge. Cartridges sold as
Enyironmental Partnership ("EP") Cartridges remain the property of Xerox_ You
agree that you shall return all EP Cartridges and may return other Cartridges to
Xerox, at Xerox's expense when using Xerox-supplied shipping labels, for
remanufacturing once such Cartridges cease functioning.
Xerox Form# 51 860t&c (05/2005)
4/3012007
14. EQUIPMENT STATUS. Unless you are acqumng Previously Installed
Equipment, Equipment will be either (a) "Newly Manufactured", which may
contain some recycled components that are reconditioned; (b) "Factory Produced
New Model", which is manufactured and newly serialized at a Xerox factory, adds
functions and fealures to a product previously disassembled to a Xerox
predetermined standard, and contains both new components and recycled
components that are reconditioned; or, (c) "Remanufactured", which has been
factory produced following disassembly to a Xerox predetermined standard and
contains both new components and recycled components that are reconditioned.
15. LEASE OPTIONS. The following options are available for Equipment subject
to this Agreement.
A. PURCHASE OPTION. If not in default, you may purchase the Equipment, "AS
IS, WHERE~IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR
VALUE: (i) at the end of the lease term for the Purchase Option indicated on the
face of this Agreement (i.e. either a set dollar amOUllt or the Fair Market Value of
the Equipment at the lease term's conclusion ["FMV"]), plus all applicable Taxes,
or (ii) any time during the lease term by paying: (1) all amoUllts then due; (2) the
remaining Minimum Lease Payments in the Agreement's tcrm less any UIleamed
finance, maintenance, and supply charges (as rellected on the lessor's books and
records); (3) a reasonable disengagement fee calculated by Xerox that will nOI
exceed fifteen percent (1S%) of the amount in (2) aboye (said amount is available
from Xerox upon request); (4) the applicable Purchase Option; and (5) all
applicable Taxes.
B. RENEWAL. Unless either party proyides notice at least thirty (30) days before
the end of the lease term of its intention not to renew this Agreement, it will be
renewed automatically on a month-to-month basis at the same price, terms and
conditions and billing frequency as the original Agreement. During this renewal
period, either party may terminate this Agreement upon at least thirty (30) days
notice.
C. LEASE TERMINATION. Upon termination pursuant to B. aboye, and if you
have not purchased the Equipmenl, you shall make the Equipment available for
removal by Xerox when requested to do so by Xerox and, at the time of removal,
the Equipment shall be in the same condition as when delivered (reasonable wear
and tear excepted), together with any related software.
16. PROTECTION OF XEROX'S RIGHTS. You hereby authorize Xerox or its
agents to file, by any permissible means, financing statements necessary to protect
Xerox's rights as the Equipment Lessor. Xerox, on your behalf and at your
expense, may take any action required to be taken by you under this Agreement thaI
you fail to take.
17. REPRESENTATIONS, WARRANTIES & COVENANTS. Each party
represents that, as of the date of this Agreement, it has the lawful power and
authority to enter into this Agreement, the individuals signing this Agreement are
duly authorized to do so on ilS behalf and, by entering this Agreement, it will not
yjolate any law or other agreement to which it is a party. You are not aware of
anything that will have a material negative effect on your ability to satisfy your
payment obligations UIlder this Agreement and all fmancial information you have
provided, or will provide, to Xerox is true and accurate and provides a good
representation of your financial condition. Each party agrees that it will promptly
notify the other party in writing of a ehange in ownership, if it relocates its principal
place of business or changes the name of its business.
18. NOTICES. Notices must be in writing and will be deemed given five (5) days
after mailing, or two (2) days after sending by nationally recognized oyemight
courier, to the other party's business address, or to such other address designated by
either party to the other by written notice given pursuant to this sentence. The term
"business address" shall mean, for you, the "Bill to" address listed on the first page
of this Agreement and, for Xerox, our inquiry address set forth on the most recent
invoice to you.
19. FORCE MAJEURE. Xerox shall not be liable to you during any period in
which its performance is delayed or prevented, in whole or in part, by a
circumstance beyond its reasonable control, which circumstances include, but are
not limited to, the following: act of God (e.g., flood, earthquake, wind); fire; war;
act of a public enemy or terrorist; act of sabotage; strike or other labor dispute; riot;
misadventure of the sea; inability to secure materials and f or transportation; or, a
restriction imposed by legislation, an order or a rule or regulation of a goyemmental
entity. If such a circumstance occurs, Xerox shall UIldertake reasonable action to
notify you of the same.
20. MISCELLANEOUS. This Agreement constitutes the entire agreement as to its
subject malter, supersedes all prior and contemporaneous oral and written
agreements, and shall be construed UIlder the laws of the State of New York
(without regard to conflict-of-law principles). You agree to the jurisdiction and
venue of the federal and state courts in Monroe COUllty, New York. In any action to
enforce this Agreement, the parties agree to waive their right to a jury trial. If a
Page 3 of 6
court finds any term of this Agreement to be UIlenforceable, the remaining terms of
this Agreement shall remain in effect. Both parties may retain a reproduction (e_g.,
electronic image, photocopy, facsimile) of lhis Agreement which shall be
admissible in any action to enforce it, but only the Agreement held by Xerox shall
be considcred an original. Xerox may accept this Agreement either by its
authorized signature or by commencing performance (e.g., Equipment delivery,
initiating Basic Services, etc.). All changes to this Agreement must be made in a
writing signed by both parties; accordingly, any terms on your ordering documents
shall be of no force or effect. The following fOUT sentences control over every other
part of this Agreement and over all other documents now or later pertaining to this
Agreement. We both intend to comply with applicable laws. In no event will
Xerox charge or collect any amoUllts in excess of those allowed by applicable law.
Any part of this Agreement that would, but for this Section, be read UIlder any
circumstances to allow for a charge higher than that allowed under any applicable
legal limit, is limited and modified by this Section to limit the amoUllts chargeable
UIlder this Agreement to the maximum amount allowed UIlder the legal limit. If, in
any circumstances, any amoUllt in excess of that allowed by law is charged or
received, any such charge will be deemed limited by the amoUllt legally allowed
and any amount received by Xerox in excess of that legally allowed will be applied
by us to the payment of amoUllts legally owed under this Agreement, or refunded to
you.
SOFTWARE TERMS: The following additional terms apply only to transactions
covering Application Software and/or Xerox-brand Equipment:
21. SOFTWARE LICENSE. The following terms apply to copyrighted software
and the accompanying documentation, including, but not limited to, operating
system software, proyided with or within the Xerox-brand Equipment acquired
hereunder ("Base Software") as well as software specifically set out as "Application
Software" on the face of this Agreement. This license does not apply to any
Diagnostic Software or to any software / documentation accompanied by a
c1ickwrap or shrinkwrap license agreement or otherwise made subject to a separate
license agreement.
A Xerox grants you a non-exclusive, non~transferable license to use the Base
Software within the United States, its territories, and possessions (the "United
States") only on or with the Equipment with which (or within which) it was
delivered. For Application Software, Xerox grants you a non-exclusive, non-
transferable license to use this software within the United States on any single UIlit
of equipment for as long as you are current in the payment of any indicated
software license fees (including any Annual Renewal Fees). You have no other
rights to the Base or Application Software and, in particular, may not: (1)
distribute, copy, modify, create derivatives of, decompile, or reyerse engineer this
software; (2) activate any software delivered with or within the Equipment in an
unactivated state; or, (3) allow others to engage in same. Title to the Base and
Application Software and all copyrights and other intellectual property rights in it
shall at all times reside solely with Xerox and/or its licensors (who shall be
considered third-party beneficiaries of this Agreement's software and limitation of
liability provisions). Base and Applicalion Software may contain, or be modified to
contain, computer code capable of automatically disabling proper operation or
functioning of the Equipment. Such disabling code may be activated if: (a) Xerox
is denied reasonable access to the Base or Application Software to periodically reset
such code; (b) you are notified of a default UIlder any term of this Agreement; or,
(c) your license is terminated or expires.
B. Xerox may tenninate your license for any Base Software (I) immediately if
you no longer use or possess the Equipment or are a lessor of the Equipment and
your first lessee no longer uses or possesses it, or (2) upon the termination of any
agreement UIlder which you have rented or leased the Equipment.
C. If you transfer possession of the Equipment after you obtain title to it, Xerox
will offer the transferee a license to use the Base Software within the United States
on or with it, subject to Xerox's then-applicable terms and license fees, if any, and
provided the transfer is not in violation of Xerox's rights.
D. Xerox warrants that the Base and Application Software will perform in material
eonfonnity with its user documentation for a ninety (90) day period from the date it
is delivered or, for software installed by Xerox, the date of software installation.
Neither Xerox nor its licensors warrant that the Base or Application Software will
be free from errors or that its operation will be uninterrupted.
22. SOFTWARE SUPPORT. During the period that Xerox (or a designated
servicer) provides Basic Services for the Equipment but in no event longer than five
(S) years after Xerox stops taking orders from customers for their acquisition of the
subject model of Equipment, Xerox (or a designated servicer) will also provide
software support for the Base Software under the following terms. For Application
Software licensed pursuant to this Agreement, Xerox will provide software support
UIlder the following terms provided you are current in the payment of all Initial
License and Annual Renewal Fees (or, for programs not requiring Annual Renewal
Fees, the payment of the Initial License Fee and the annual "Support Only" Fees).
Xerox Form# S1860t&c (OSI200S)
4/3012007
A Xerox will assure that Base and Application Software performs in material
confonnity with its user documentation and will maintain a toll-free hotline during
standard business hours to answer related questions.
B. Xerox may make available new releases of the Base or Application Software
that primarily incorporate coding error fixes and are designated as "Maintenance
Releases". Maintenance Releases are provided at no charge and must be
implemented within six (6) months after being made available to you. Each new
Maintenance Release shall be considered Base or Applicalion Software governed
by these Software Terms. New releases of the Base or Application Software that
are not Maintenance Releases, if any, may be subject to additional license fees at
Xerox's then-current pricing and shall be considered Base or Application Software
goyerned by these Software Terms (UIlIeSS otherwise noted). Xerox: will not be in
breach of its software support obligalions hereunder if, in order to implement, in
whole or in part, a new release of Base or Application Software provided or made
available to you by Xerox, you must procure, at your expense, additional hardware
and/or software from Xerox or any other entity. You agree to return or destroy all
prior releases.
C. Xerox will use reasonable efforts, either directly and/or with its yendors, to
resolve coding errors or provide workarounds or patches, provided you report
problems as specified by Xerox.
D. Xerox shall not be obligated (I) to support any Base or Application Software
that is two or more releases older than Xerox's most current release or (2) to remedy
coding errors if you have modified the Base or Application Software.
E. For Application Software, Xerox may annually increase the Annual Renewal
and Support~Only Fees, each such increase not to exceed 10%. (For state and local-
government customers, this adjustment shall take place at the commencemenl of
each of your annual contract cycles.)
23. DIAGNOSTIC SOFTWARE. Software used to maintain the Equipment and/or
diagnose its failures or substandard performance (collectively "Diagnostic
Software") is embedded in, resides on, or may be loaded onto the Equipment. The
Diagnostic Software and method of entry or access to it constitute yaluable trade
secrets of Xerox. Title to the Diagnostic Software shall at all times remain solely
with Xerox and/or Xerox's licensors. You agree that (a) your acquisition of the
Equipment does not grant you a license or right to use the Diagnostic Software in
any manner, and (b) that unless separately licensed by Xerox to do so, you will not
use, reproduce, distribute, or disclose the Diagnostic Software for any purpose (or
allow third parties to do so). You agree at all times (including subsequent to the
expiration of this Agreement) to allow Xerox to access, monitor, and otherwise take
steps to prevent unauthorized use or reproduction of the Diagnostic Software.
GOVERNMENT CUSTOMER TERMS: The following additional terms apply
only to lease transactions with state and local government customers:
24. REPRESENTATIONS & WARRANTIES, FUNDING, TAX TREATMENT &
PAYMENT.
A REPRESENT A nONS & W ARRANTlES_ You hereby represent and warrant,
as of the date of this Agreement, that: (I) you are a Statc or a fully constituted
political subdivision or agency of the State in which you are located and are
authorized to enter into, and carry out, your obligations UIlder this Agreement and
any other documents required to be delivered in cOllllection with the Agreement
(collectively, the "Documents"); (2) the Documents have been duly authorized,
executed and delivered by you in accordance with all applicable laws, rules,
ordinances and regulations (including, but not limited to, all applicable laws
governing open meetings, public bidding and appropriations required in cOllllection
with this Agreement and the acquisition of the Equipment) and are valid, legal,
binding agreements, enforceable in accordance with their terms and the person(s)
signing the Documents have the authority to do so, are acting with the full
authorization of your governing body and hold the offices indicated below their
signatures, each of which are genuine; (3) the Equipment is essential to the
immediate performance of a governmental or proprietary fUllction by you within the
scope of your authority and shall be used during the lease lerm only by you and
only to perform such function; and, (4) your obligations to remit payments UIlder
this Agreement constitute a current expense and not a debt UIlder applicable state
law and no provision of this Agreement constitutes a pledge of your tax. o~ g~n~al
reyenues and any provision that is so construed by a court of compelenl JUTIsdicllon
is void from the inception of this Agreement.
B. FUNDING. You represent and warrant that all payments due and to become
due during your current fiscal year are within the fiscal budget of such year and are
included within an unrestricted and unencumbered appropriation currently available
for the lease/purchase of the Equipmenl, and that it is your intent to use the
Equipment for the entire lease term and to make all payments required UIl~er ~s
Agreement. In the event that (I) through no action initiated by you your legislatIve
body does not appropriate funds for the continuation of this Agreement for any
fiscal year after the first fiscal year and has no funds to do so from other .sources,
and (2) you have made a reasonable but UIlsuccessful effort to find a creditworthy
Page 4 of 6
assignee acceptable to Xerox in its sole discretion within your general organization
who can continue this Agreement, this Agreement may be terminated. To effect this
termination, you shall, thirty (30) days prior to the beginning of the fiscal year for
which your Iegislatiye body does not appropriate funds for such upcoming fiscal
year, send Xerox written notice staling that your legislative body failed to
appropriale funds and that you have made the required effort to find an assignee.
Your notice must be accompanied by payment of all sums then owed through the
current year to Xerox UIlder this Agreement and must certify that the canceled
Equipment is not being replaced by equipment performing similar fUllctions during
the ensuing fiscal year. In addition, you agree at your expense to return the
Equipment in good condition to a location designated by Xerox and that, when
returned, the Equipment will be free of all liens and encumbrances. You will then
be released from your obligations to make any further payments to Xerox beyond
those due for the current fiscal year (with Xerox retaining all sums paid to date).
C. TAX TREATMENT. This Agreemenl has been accepted on the basis of your
representation that Xerox may claim any interest paid by you as exempt from
federal income tax UIlder Section 1 03( c) of the Code. You agree to comply with the
information reporting requirements of Section 149(e) of the Code. Such compliance
shall include, but not be limited to, the execution of S03S-G or S03S-GC
Information Returns. You hereby appoint Xerox as your agent to maintain, and
Xerox agrees to maintain, or cause to be maintained, a complete and accurate record
of all assignments of this Agreement in form sufficient to comply with the book
entry requirements of Section 149(a) of the Code and the regulations prescribed
thereunder from time to time. Should Xerox lose the benefit of this exemption as a
result of your failure to comply with or be coyered by Section 103(c) or its
regulations, then, subject to the availability of fUllds and upon demand by Xerox,
you shall pay Xerox an amOUllt equal to its loss in this regard. At the time of
execution of this Agreement, you shall provide Xerox with a properly prepared and
executed copy of US Treasury Form S038 or S03S-GC.
D. PAYMENT. Your payment is due within thirty (30) days of our invoice date.
ADDITIONAL TERMS: The following additional terms apply only to the extent
that you have agreed 10 one or more of the options described below:
2S. CONSUMABLE SUPPLIES INCLUDED IN BASFJPRINT CHARGES. If
this option has been selected, Xerox (or a designated servicer) will provide you with
black toner (excluding highlight color toner), black devcloper, copy Cartridges, and,
if applicable, fuser ("Consumable Supplies") throughout the term of this
Agreement. For full-color Equipment, Consumable Supplies shall also include, as
applicable, color toner and developer. You agree that the Consumable Supplies are
Xerox's property until used by you, that you will use them only with the Equipment,
that you will return all Cartridges to Xerox for remanufacturing once they have
been run to their cease-function point (at Xerox's expense when using Xcrox-
supplied shipping labels), and that at the end of the term of this Agreement eilher
(a) you will return any UIlused Consumable Supplies to Xerox (at Xerox's expense
when using Xerox-supplied shipping labels)or (b) destroy them in a manner
permitted by applicable law. Should your use of Consumable Supplies exceed
Xerox's published yields for these items by more than 10%, you agree that Xerox
shall have the right to charge you for any such excess usage. When requested by
Xerox, you agree to provide meter readings and inventory of Consumable Supplies
in your possession.
26. REPLACEMENT / MODIFICATION OF PRIOR XEROX AGREEMENT. If
this option has been selected, this Agreement will replace or modify a prior
agreement between you and Xerox coyering the specified equipment. If it is a
replacement agreement, the prior agreement shall be null and void. If it is a
modification, the prior agreement shall remain in effect except that any terms
presented in this modification agreement that conflict with, or are additive to, any of
the terms in the prior agreemenl shall take precedence Oyer the terms in the prior
agreement for the balance of the Agreement. In addition, modifications requiring a
rcamortization of your payments may include a one-time administrative/processing
charge that will appear on your first bill under this revised arrangement.
27. XEROX AS FINANCIAL INTERMEDIARY. If this option has been selected,
you are leasing specifically identified products that were selected by you and that
are not sold by Xerox in the normal course of its business. If you have signed a
purchase contract for such products, by signing this Agreement you assign your
rights but none of your obligations under such purchase contract to Xerox. With
regard to these products, you agree that Xerox is leasing them to you "AS IS,
WHERE IS" and that XEROX HAS NOT MADE, AND YOU HEREBY WAIVE,
ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (a) ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR
PURPOSE OR NON-INFRINGEMENT, and (b) ANY REPRESENTATION OR
WARRANTY REGARDING THE PRODUCTS' SUITABILITY, DESIGN,
CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR
WORKMANSHIP, OR COMPLIANCE WITH SPEClFICA TlONS OR
APPLICABLE LAW. Xerox assigns to you, to the exlent assignable, any warranty
Xerox Form# 5 I 860t&c (OSI200S) 4/30/2007
rights it has to these products (which rights shall revert to Xerox if you breach this
Agreement). You agree (I) that these products are not coyered by Xerox's
obligation to provide Basic Services; (2) 10 maintain a service agreement for these
products with a service provider acceptable to Xerox throughout this Agreement's
term; (3) to pay all personal property taxes related to these products; and (4) to
assign to Xerox any rights you have to these products UIltil title passes fTOm Xerox
to you (which, subject to any software licenses surroUllding the acquisition of these
products, shall occur when you obtain title to all Xerox-brand Equipment coyered
by this Agreement).
28. FINANCED SOFTWARE TOTAL. If this option has been selected, the initial
license fees for any Application Software set forth in this Agreement shall be paid
for through your Minimum Lease Payments. If you breach this license or any of
your obligations regarding the Equipment, the full amount of the initial license fees
shall be immediately due and payable.
29. FINANCED SUPPLIES TOTAL. If this option has been selected, the cost of
any supplies you have purchased UIlder this Agreement shall be paid for through
your Minimum Lease Payments. If you breach any of your obligations regarding the
Equipment, the full amount of the supply costs shall become immedialely due and
payable.
30. REFINANCE OF PRIOR AGREEMENT. If this option has been selected, the
balance of your prior indicated agreement with Xerox or a third party shall be paid
for through your Minimum Lease Payments. If your prior agreement is with a third
party, you hereby acknowledge that you have the right to terminate the agreement
and agree to provide a statement from the third-party identifying the equipment at
issue and the amounl to be paid off (as well as a statement from you identifying the
payee and mailing address for your payoff check). If your prior agreement was
with Xerox, the use of this refinance option shall render your prior agreement null
and void. If you breach this Agreement, the full amoUllt of your prior agreement
balance shall be immediately due and payable.
31. ADJUSTMENT PERIOD. If this option has been selected, your Minimum
Lease Payment and/or Print Charges shall be adjusted in accordance with the
information contained in the Adjustment Period portion of this Agreement; as a
result, your initial payment(s) shall be different from those payable during the
balance of this Agreement.
32. K~16 BILLING SUSPENSION. If this option has been selected, the
Maintenance Componenl of your Minimum Lease Payment and Print Charges will
be suspended each year during the months indicated. During these months, you
agree that you will not use the Equipment and that Xerox shall not be responsible
for proyiding Basic Services on it. If Xerox provides Basic Services during the K-
16 Billing Suspension period, you will be billed at Xerox's then-current Time and
Materials ("T&M") rates for such Basic Services.
33. TRADE-IN EQUIPMENT. If this option has been selected, you are providing
equipment 10 Xerox as part of this Agreement ("Trade-In Equipment") and the
following shall apply:
A TITLE TRANSFER. You warrant that you haye the right 10 transfer title to the
Trade-In Equipment and that it has been installed and performing its inlended
function. Title and risk of loss to the Trade-In Equipment shall pass to Xerox when
Xerox removes it from your premises.
B. CONDITION. You warrant that the Trade-In Equipment is in good working
order, has not been modified from its original configuration (other than by Xerox),
and has a UL label attached. You agree to maintain the Trade-In Equipment at its
present site and in substantially its present condition UIltil removed by Xerox.
C. ACCRUED CHARGES. You agree to pay all accrued charges for the Trade-In
Equipment (up to and including payment of the Final Principal Payment Number)
and to pay all maintenance, administrative, supply and finance charges for this
equipment through the date title passes to Xerox.
34. RUN LENGTH PLAN. If this option has been selected, the first ten prints of
each original (per run) are recorded and billed on both meters with all subsequent
prints recorded and billed on Meter A only.
3S. FIXED PRICE PLAN. If this option has been selected, Xerox will forego its
right to increase the Maintenance Component throughout the initial term of this
Agreement.
36. PER-FOOT PRICING. If this option has been selected, all Print Charges will
be billed on a per -foot basis, with each linear or square foot, as applicable, equal to
one print.
37. EXTENDED SERVICE HOURS. If this option has been selected, Xerox will
proyide Basic Services during the hours indicated, with the first number
establishing the number of eight-hour shifts covered and the second establishing the
days of the week (e.g., 2 x 6 would provide service from S:OO AM. to 11 :59 P.M..
Monday through Saturday). The cost of this enhanced service coverage will be
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billed separately and, as such, is not included in your Minimum Lease Payment or
Print Charges.
38. ATIACHED ADDENDA. If this option has been selected, you acknowledge
that one or more spccified addenda (as indicated) haye been provided to you. These
addenda, which provide additional terms relevant to the transactiollS covered
hereunder, are hereby fully integrated into this Agreement.
39. NEGOTIATED CONTRACT. If this option has been selected, the Products
identified in this Agreement are subject solely to the terms contained in (a) either
(1) the idcntified Negotiated Contract for a lease transaction or (2) if there are no
such terms in the Negotiated Contract, the terms set forth in this Agreement, and, if
applicable and notwithstanding anything to the contrary sel forth in the Negotiated
Contract, (b) the "Additional Terms" portion of this Agreement for the selected
option or options to the extent the subject matter of any such selected option is not
addressed in the Negotiated Contract.
40. DSA CONTRACT NUMBER. If a DSA Contract Number has been inserted,
the Equipment and/or software identified in this Agreement are associated with the
Services being provided UIlder the referenced Document Services Agreement
("DSA"), bul such Equipment and/or software are subject solely to the terms
contained in this Agreement.
For customer support tools to manage your account online,
visit your Account Management link @ www.xerox.com
Xerox Form# 5 I 860t&c (OS/200S)
4/30/2007
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