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HomeMy WebLinkAboutCOM 0737.000 2002-2004 Y~y AL KONISHI ~9 CONSTANCE R. KIRILJ County Clerk Legislative Auditor JAY MENDE ; Deputy County Clerk ~ ••a.;,y~ County of Hawai `i Office of the County Clerk 25 Aupuni Street Hilo, Hawaii 96720 Telephone: (808) 961-8255 Facsimile: (808) 967-8912 i August 17, 2004 = Honornble James Y. Arakaki Chair, Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 , Dear Mr. Arakaki: ~ J Subject: Resolution for multi-year lease Attached for your favorable consideration is a proposed resolution authorizing the payment of funds for more than one fiscal year for a copy machine for the County Clerk's Office -Reprographics Division (Machine Room). Since the current contract for the 265ST copier has expired, we would like to secure the option to lease a newer model, which is on the County's bid list. The advantages of the newer model, Xerox WorkCentre Pro 90, are [he increased speed from 65 pages per minute to 90 pages per minute, increased document feeder capacity, increased paper capacity from 5,100 sheets to 7,100 sheets, increased processor speed, and increased hard drive and RAM. Beside all of the benefits, this transition will save the County approximately $92.00 per month given the current copy volume. A cost comparison of the 265ST with the newer model, WCP90 is shown below: MODEL MONTHLY MONTHLY AVERAGE COPIES/PRINTS PER COPY MONTHLY TOTAL MONTHLY LEASE MAINTENACE MONTHLY INCLUDED CHARGE COPIES AMOUNT AMOUNT VOLUME CHARGE DC265ST $ 1,260.00 included 64,567 (last 50,000 $0.0105 $ 153.90 $1,413.90 (Current 6 months) plus 4% tax Model TOTAL $1,470.46 WCP90 $ 1,378.87 included 64,657 100,000 $0.0084 $-0- $1,378.87 (New includes 4% tax Model TOTAL $1,378.87 Attached is a copy of the lease contract for 60 months. If there aze any questions, please do not hesitate to call Duplicating Machine Operator Supervisor Margaret Lucas. Sincerely, Alan S. Konishi County Clerk Att. ASK/smc l~'tS. L2`l'C`f' Comm. No. Hawaii County is an Equal Opportunity Provider and Employuer Ref. TO• Raf. Cate 7HF, IkH:UMF.NT COMPANY LEASE AGREEMENT X E ROXm Full Legal Name Customer Name Bi0 to) COUNTY OE HAWAII Check all that apply DBAMame OverBow COUNTY CLERK ? Assoc./Coop. Name: Strezt Address 25 AUPUNI ST ©Negotiated Contract #:01(k175916 ? DSA Contract - Box#/Routing ROOM 208 ?Value Added Services: City, State HILO, HI ? Attached Customer P.O. #s: Supplies: 7_ip Code 967204245 Lease: Tax ID# ©Sate or Local Government Customer Customer Name (Install) COUNTY OF HAW All In[. Rate: 7% Total Int. Pa able: $ 6 492.20 DBAMame Overflow rf d COUNTY CLERK Replacemenf/Modification of Prior Xerox Agreement ( ~ ) A reemenl coverin Xeroz Installed at Street Address 25 AUPUNI ST 8 g Equipment Serial# (or 95#): is hereby ? modified ? replaced Effective Date: FloorBoom/Routing 2ND FLR MACHINE RM Comments: City, S[a[e HILO. HI Lease WormaGon Lease Term : 60 months Zip Cnde 96720-4245 ?x Supplies included in Base/Print Charges County Installed In Hilo ?Refin. of Prior AgrmL Xemx (95#): ? 3rd Party F,q. Customer Requested lnstall Date IN/152001 Amt Refin: $ Int Rate: % Total Int Payable: $ Lease Pa meat Information Product Purchase Down Prev Fin'I Min. Lease Payment Frea (with serial number, if in place equipment) O tion Pa en[ Install Interm (~1c. e.mad~as e.ceas me~o charge I WCP90C WORK CENITRE PR090 1000 ? Monthly ?Quarterly D90PWRCONV 1)DLXSCAN IILYV ?Serni-Annual ?Annual I)SCANEMAIL IISECURE110 11STAPLER ? Other Consul[ine Services Customer Education Min. Lease Pavment Mode S 1,325.84 : MBVIMIIM LEASE PAYMENT (excl. of applic. taxes) ?Advance ? Arrears Price Information ? Adjustment Perirxl Pennd A -Mos. Affected: Period B -Mos. Affected: Periodic Base Charge $ 1,325.84 Periodic Base Charge Periodic Base Charge Print Charge Meter l : , Print Charge Meter l: p~4 Print Charge Meter l : D a 9.ili" . Prints I - 125000 $ Prints I - $ Prints I - Prints 125001 - + $ 0.0084 Prints - $ Prints - PrinK - Prints - Prints - Pdnl Charge Meter 2: .t W~„„~+- Print Charge Meter 2: , Print Charge Meter 2: _'~:.e Prints I - Prints 1 - $ Prints I - Prints - Prints - Prints - Periodic Min.# of Prints Periodic Min.# of Prints Periodic Min.# of Prints (based on Meter I Print Charges) 125000 (based on Meter I Print Charges) (based on Meter 1 Print Charges) ? Purchased Sn lies ? Cash ? Fin'd ? A licalion Software Reorder # Descri [ion rice Software Title nitial License Fee nnual Renewal Fee ? Cash ? Finance ? Su ort Onlv Total Price = Total Initial License Fees = © Trade•[n Allowance ? K-16 Billing Additional Options (check all that apply) Manufacturer ModeV Final Allowance Suspension ? Run Length Plan ~Fized Price Plan Serial # Principal Pavment (check I as required) ? per-Foot Pacing XEROX 3UP062285 55 Monms affecmA ? Ez[ended Service Hours: $ ? June only Description: / $ 0 mo. ? July only ? Attached Addenda: Total Allowance = ? August only Total Allowance Applied to: ?Tmde-In Equip. Balance: ? June -July ? Other Addenda: ? July -August ?Price of Replcmnt. EouiD.: Agreement Presented B}': CUSTOMER ACKNOWLEDGES RECEIPT OF THn' TERM ON' THIS Xerox Name: Susanne Snuza Phonr.(608193 3-7007 AGREEMENT (CONSISTING OF 6 PAGES INCLUDIN . THIS FA PAG 1 %~''-R I IIUIt I/i I~ Ih) 11"11 NV U t ~L t~A'7l Auth. Signer Name: x 1. , rni :I Corm (l., p~ n.v n ~n (P/eave PrnV Name n/Arrchnri;rd SiFaerl n. „ t c~i ~ Sign^lure: X Dalc: I I~ ~rNG iFnnmrc rr Aul maze .rgnerJ Aulh. Signer Tidc: x Phone (808)961-8358 o , ..h.:-, I'r'0. I vr~ ~-I li n~~R ~ a~n~ ~,x~ E-Mail: WwW.Xerox.CDm ? Tax F.xcmpt (*Must atmch tiales Tar Eremptinn Cerri~icate) Xerox Fonn# 51 RGO (07/2004) 8/I 121X14 Page I of 6 GENERAL TERMS: The following terms apply to all lease tmnsactions: Prescribed by Xeroz. If you do no[ provide Xerox with meter readings as required. Xerox may estimate them and bill you accordingly. I. PRODUCTS. The term "Products" shall refer collectively to all equipment (the D. EQUIPMENT REPLACEMENT. V Xerox is unable to maimain the "Equipment"), software, and supplies ordered under this Agreement. You represent Equipment as described above, Xerox will, as your exclusive remedy for Xerox's that the Products are being ordered for your own business use (rather than resale) failure to provide Basic Services, replace [he Equipment with an identical product and that they will not be used for personal, household or Family purposes. or, at Xerox's option, another product of equal or greater capabilities. I( a 2. NON-CANCELABLE LEASE. THIS AGREEMENT IS A LEASE AND IT replacement product is provided pursuant to this Section, it shall be subject [o the CANNOT BE CANCELED OR TERMINATED EXCEPT AS EXPRESSLY terms and conditions of this Agreement, there will not be an additional charge for PROVIDED HEREIN. YOUR OBLIGATION TO MAKE MINRvtUM LEASE [he replacement product and, except as se[ forth in Section 10 below, there will not PAYMENTS AND TO PAY ANY OTHER AMOUNTS DUE HEREUNDER be an additional charge for Basic Services during the then-curent term during SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE which Basic Services are being provided. SUBJECT TO ANY DELAY, REDUCTION, SET-OFF, DEFENSE, E. CARTRIDGE PRODUCTS. If Xerox is providing Basic Services for COUN'T'ERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER, Equipment utilizing cartridges designated by Xerox as customer replaceable IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATTONS ("Cartridges"), you agree to use only unmodified Cartridges purchased directly HEREUNDER, INCLUDING PURSUANT TO SECTIONS 4 AND 23 HEREOF. from Xerox or its authorized resellers in the United States. ANY CLAIM THAT YOU MAY HAVE AGAINST XEROX MAY BE p PC/WORKSTATION REQUIREMENTS. In order to receive Basic Services ASSERTED SOLELY AGAINST XEROX [N A SEPARATE ACTION. and/or Software Support for Equipment requiring connection to a PC or 3. LEASE COMMENCEMENT, PAYMENT, TAXES & CREDIT HISTORY. workstation, you must utilize a PC or workstation [hat either (I) has been provided A. The lease term for this Agreement shall commence upon installation of the by Xerox or (2) meets Xerox's published specifications. Equipment; provided, however, for customer-installable Equipment, [he lease term G. DELIVERY AND REMOVAL. Xerox will be responsible for all standard (or this Agreement shall commence upon delivery of [he Equipment. delivery and removal charges. You will only be responsible for any non-standard B. You agree to pay Xerox each Minimum Lease Payment, all Print Charges and delivery or removal expenses incurred. all amounts due hereunder within thirty (30) days of the invoice date or on the due 5. WARRANTY DISCLAIMER .@ WANERS. XEROX DISCLAIMS, AND date listed on the invoice, whichever is earlier. Restrictive covenants on YOU WANE, THE IMPLIED WARRANTY OF FITNESS FOR A instruments or documents submitted for or with payments you send to Xerox will PARTICULAR PURPOSE. The parties intend this agreement [o be a "finance not reduce your obligations. lease" under article 2a of the uniform commercial code ("uce"). Except to the C. You shall be responsible for any and all applicable Taxes, which will be extent expressly provided herein, you waive, to the extent permitted by applicable included in Xerox's invoice unless you provide proof of your tax exempt status. law, all rights and remedies conferred upon a lessee by article 2a of the uce. "Taxes" shall mean any [ax, assessment or charge imposed or collected by any 6. [NTELLECT'UAL PROPERTY INDEMNITY. Xerox will defend and governmental entity or any political subdivision thereof, however designated or indemnify you if any Product is alleged [o infringe someone else's U.S. intellectual levied, imposed on this Agreement or [he amounts payable to Xerox by you for the property rights provided you promptly notify Xerox of the alleged infringement and billing of Products, Print Charges, services and maintenance of any kind; Taxes permit Xerox to direct the defense. Xerox is not responsible for any non-Xerox ineWde, but are not limited [o, sales and use, rental, excise, gross receipts and litigation expenses or settlements unless i[ preapproves them in writing. To avoid occupational or privilege [axes, plus any interest and/or penalty thereon, but infringement, Xerox may modify or substitute an equivalent Product, refund the excluding any personal property taxes and taxes on Xerox's net income. If a taxing price paid for the Product (less the reasonable rental value for the period it was authority determines that Xerox did not collect all applicable Taxes, you shall available to you), or obtain any necessary licenses. Xerox is not liable for any remain liable to Xerox for such additional Taxes. infringement-related liabilities outside the scope of this Section including, but nut D. You, [o the extent required by applicable law, authorize Xerox (or its agent) to limited [o, infringement based upon a Product being modified to your specifications obtain credit reports (including in connection with credit analysis or subsequent or being used or sold with products not provided by Xerox. review, collection or enforcement of your obligations hereunder), make such other 7. LIMITATION OF LIABILITY. Xerox shall not be liable to you for any direct credit inquiries as Xeroz may dcem necessary, Cornish payment history information damages in excess of $10,000 or [he amounts paid hereunder, whichever is greater, to credit reporting agencies, and release to prospective assignees of this Agreement and neither party shall be liable to the other for any speciah indirect, incidental. or any rights hereunder information Xerox has about you and this Agreement Even consequenfial or punitive damages arising out of or relating to this Agreement, i( Products have been delivered, Xerox may, within sixty (60) days following its whether the claim allegac tortious conduct (including negligence) or any other legal acceptance oC this Agreement revoke the Agreement if your credit approval is theory. Any action you take against Xerox must be commenced within two (2) denied. years after the event that caused i[. 4. BASIC SERVICES. As a mandatory part of a Lease, Xerox (or a designated R. ASSIGNMENT. servicer) will provide the following Basic Services under [his Agreement (unless A If you wish to assign any rights or obligations under this Agreement, you shall you are acquiring Equipment for which Xerox does not offer Basic Services; such provide a written notice [o Xerox of such request for consent, with said notice Equipment to be designated as "NO Svc."): including the name of the proposed assignee. Your request to assign this A. REPAIRS & PARTS. Xerox will make repairs and adjustments necessary to Agreement will be granted by Xerox if: (1) you are not in default under this keep Equipment in good working order (including such repairs or adjustments Agreement or under any other agreement with Xerox; (2) the proposed assignee required during initial installation). Parts required for repair may be new, agrees [o Section 3.D. of this Agreement titled "LEASE COMMENCEMENT. reprocessed, or recovered. PAYMENT, TAXES & CREDIT HISTORY" as applicable to it, for the purposes B. HOURS & EXCLUSIONS. Unless otherwise stated, Basic Services will be of the proposed assignment; (3) the proposed assignee meets Xerox's then curtent provided during Xerox's standard working hours (excluding Xerox-recognized creAif criteria for similar transactions as detemrined by Xerox in its sole discretion; holidays) in areas within the United States, its territories, and possessions open for and, (4) you and the proposed assignee execute a writing, in a form acceptable to repair service for the Equipment at issue. You agree to give Xerox reasonable Xerox, confirming said assignment. access to the Equipment. Basic Services shall cover repairs and adjustments R. Xerox may assign this Agreement, in whole or in part, without prior notice to required as a result of normal wear and [ear or defects in materials or workmanship you and may release information it has about you related to [his Agreement. Each (and shall exclude repairs or adjustments Xerox deternines to relate to or be successive assignee of Xerox shall have all of [he rights but none of the obligations affected by the use of options, accessories, or other connected products no[ serviced of Xerox hereunder. You shall continue to look to Xerox for performance of by Xerox, as well as any non-Xerox alterations, relocation, service, supplies, or Xemz's obligations, including the provision of Basic Services, and you hereby consumables). You agree to use the Equipment in accordance with all applicable waive and release any assignees of Xerox from any such claim. To the extent That manuals and instructions. You also agree to perform all operator maintenance Xerox notifies you of any such assignment, you shall make all payments due procedures for the Equipment and to purchase all referenced parts, tools, and hereunder in accordance with [he instructions of such assignees of Xerox. You supplies needed to perform those procedures that are described in the applicable shall not assert any defense, counterclaim or setoff that you may have or claim manuals and instructions. against Xerox against any assignees of Xerox. C INSTALLATION SITE Rc METER READINGS. The Equipment installation 9 MINAIUM LEASE PAYMENT'S. Each Minimum Lease Payment (which site must conform to Xerox's published requirements throughout the term of this may be billed on more than one invoice) includes a Periodic Base Charge, and may Agreement If applicable, you agree to provide meter readings in the manner include a Periodic Minimum Number of Prints. The Minimum Lease Payments. Xerox Form# 51860(&c (07/2004) R/1 I/2004 Page 2 of 6 along with any additional Print Charges for prints made in excess of the Minimum # Cartridges; you agree [hat these cartridges remain the property of Xerox and you of Prints, cover your cost for the use of the Equipment and its maintenance shall return them to Xerox for remanufacmring once they cease functioning. (provided as Basic Services). I5. E UB'MENT STATUS. to su Q pptM of Xerox's environmental leadership goals. 10. MAINTENANCE COMPONENT PRICE MCREASES. Xerox may annually and unless you are acquiring Previously Installed Equipment Equipment will he increase that amount of the Minimum Lease Payment and Print Charges you are either (a) "Newly Manufacmed", which may contain some recycled components charged for maintenance of the Equipment (the "Maintenance Component"), each [ha[ ate reconditioned; ro) "Factory Produced New Model", which is manufacmred such increase not to exceed 10%o. (For state and local government customers, this and newly serialized al a Xerox factory, adds functions and features to a product adjustment shall take place at the commencement of each of your annual contract previously disassembled to a Xerox predetermined standard, and contains both new cycles.) components and recycled components [hat are reconditioned; or, (e) 11. TITLE, RISK & RELOCATION. Title to the Equipment shall remain with "Remanufacmred", which has bcen factory produced following disassembly to a Xerox unless and until you exercise your option [o purchase the Equipment. If you Xerox predetermined standard and conmins both new components and recycled acquire title to the Equipment, you must comply with all applicable laws and components that are reconditioned. regulations regarding [he export of any commodity, technology and/or software. 16. PURCHASE OPTIONS. You may purchase the Equipment "AS IS, WHERE- You agree thaC (a) the Equipmem shall remain personal property; (h) you will not 1S" and WITHOUT ANY WARRANTY AS TO CONDR7ON OR VALUE, at the attach any of the Equipment as a fixture m any real estate; (c) you will not pledge, end of, or doting, the lease term. You may purchase the Equipment at [he end of sub-lease or part with possession of [he Equipment or file or permit ro be filed any the lease term for the Purchase Option indicated in this Agreement (i.e., either a set lien against the Equipment and. (d) you will not make any permanent alterations to dollar amount or the Fair Market Value of the Equipment at the lease term's the Equipment The risk of Toss due ro your fault or negligence, as well as chef[ or conclusion ["FMV"]), plus any applicable Taxes. You may purchase the disappearance, shall pass to you upon shipment from a Xerox controlled facility. Equipment at any time during [he lease term by paying: (a) all amounts then due: The risk of loss due to all other causes shall remain with Xerox unless and until you (b) [he remaining Minimum Lease Payments in the Agreement's term less any exercise your option to purchase the Equipment. Unless and until [isle passes to unearned finance, maintenance, and supply charges (as reflected on the lessor's you, all Equipment relocations must he arranged (or approved in advance) by books and records); (c) a reasonable disengagement fee calculated by Xerox (the Xerox. Equipment cannot be relocated outside of the United States, its territories or amount of such fee (o be available from Xerox at any time upon requesQ; (d) the possessions until you have exercised the Purchase Option indicated in this applicable Purchase Option; and, (e) all applicable Taxes. Agreement. All parts/materials replaced, including as pan of an upgrade, will 17 PROTECTION OF XEROX'S RIGHTS. You hereb authorize Xerox or its become Xerox's property. Y agents to file, by any permissible means, all documents necessary m protect Xerox s 12. RENEWAL. Unless either parry provides notice at least thirty (30) days before rights as the Equipment Lessor (including any Uniform Commercial Code [he end of the lease term of its intention not [o renew the lease, it will he renewed protective filings in favor of Xerox). You agree [ha[ Xerox can, but shall not be automatically on a month-[o-month basis at the same price and on the same terms obligated lo, take on your behalf and at your expense any action required to he and conditions. Billing will occur at [he same frequency as the original ]ease. taken by you under this Agreement and which you fail to take. During [his renewal period, either side may terminate [his Agreement upon al leas[ Ig REPRESENTATIONS, WARRANTIES & COVENANTS. You re resent as thirty (30) days notice. of the dale of [his Agreement [hat: (a) you have the lawful power and authority to 17, BREACH & REMEDIES; LATE CHARGES Nc COLLECTION EXPENSES. enter into this Agrcemenp (b) the person(s) signing this Agreement have been duly A. If any payment is not received by Xerox on or before the due date, Xerox may authorized to do so on your behalf, (c) by entering into this Agreement you will riot charge you, and you agree to pay, a late charge to cover Xerox's costs of collection violate any law or other agreement to which you are a party, (d) you are not aware equal to $25.00 (or if less, the maximum amount permitted bylaw), of anything that will have a material negative effect on your ability to satisfy your B. You will be in defauh under this Agreement if (I) Xerox does not receive any obligations under this Agreement; and, (e) all financial information you have payment within fifteen (I S) days after the date it is due or (2) i(you fail to cure any Provided to Xerox is tme and accurate and provides a good tepresemmtion of your other breach hereunder within fifteen (IS) days after receiving of notice of said 5nancial condition. breach. If you default Xerox, in addition to its other remedies (including the In addition to the other provisions of this Agreement, you agree that during the term cessation of Basic Services), may require immediate payment, as liquidated of this Agreement, you will promptly notify Xerox in writing if you move your damages for loss of bargain and not as a penalty, of: (a) all amounts then due, plus principal place of business, i(you change the name of your business or if there is a interest on all amounts due from the due date until paid al the rate of one and one- change in ownership. half percent (L5%) per month (not to exceed [he maximum amount permitted by Ig. NOTICES. Notices must be in writing and will he deemed given five (5) days law); (b) the remaining Minimum Lease Payments in the Agreement's term less any aker mailing, or two (2) days after sending by nationally recognized overnight unearned finance, maintenance, and supply charges (as reflected on the lessor's courier, [o your (or our) business address, or to such other address designated by bunks and records); (c) a reasonable disengagement fee calculated by Xerox, that either parry m the other by written notice given pursuant to this sentence. For will not exceed fifteen percent (I5'7o) of the amount in (b) above (said amount is purposes of the foregoing sentence, the term "business address" shall mean, for you, available from Xerox at any time upon requesQ; and, (d) all applicable Taxes. In the "8111 [o" address listed on [he first page of this Agreement and, for Xerox, our addition to paying the amounts required in the preceding sentence if you default, inquiry address set forth on the most recent invoice to you. yon shall either t q remm the Equipment [o Xerox in [he same condition as when delivered. reasonable wear and tear excepted, when requested to do so by Xerox, or 20. FORCE MAJEURE. Xerox shall not be liable to you during any period in (2) purchase the Equipment by paying Xerox the Purchase Option therefor and ell which its performance is delayed or prevented, in whole or in part, by a applicable Taxes. If you elect to purchase the Equipment title to the Equipment circumstance beyond its reasonable controh which circumstances include, but are shall pass to you "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO not limited to, the following: act of God (e.g, flood, earthquake, wind); fire; war; CONDITION OR VALUE after Xerox receives payment of the amounts required ac[ of a public enemy or terorist act of sabotage; epidemic; strike or other labor under (a), (b), (c), (d) and (2) above in this Section and the Purchase Op[iom. dispute; riot; piracy or other misadventure of [he sea: embargo; inability to secure Xerox s decision to waive or forgive a particular default shall not prevent Xerox materials and / or Vansporta[ion; or, a restriction imposed by legislation, an order or from declaring any other default. In addition, if you default under this Agreement a rule or regulation of a governmental entity. If such a circumstance occurs. Xerox you agree to pay all of the costs Xerox incurs to enforce its rights against you, shall undertake reasonable action to notify you of the same. including reasonable auomeys' fees and actual costs. 21. MISCELLANEOUS. This Agreement constitutes [he entire agreement as to its 14. CARTRIDGES. In support of Xerox's environmental leadership goals, subject matter, supersedes all prior and contemporaneous oral and writen cartridges packed with Equipment and replacement cartridges may he new, agreements, and shall be construed under the laws of the State of New York remanufacmred or reprocessed. Remanufaemred and reprocessed cartridges meet (wnhou[ regard to conflict-of-law principles). YOU CONSENT TO THE Xerox's new cartridge performance standards and contain new and/or reprocessed JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS IN components. To enhance print quality, the cartridge(s) for many models of MONROE COUNTY, NEW YORK. If a court finds any term of this Agreement m Equipment have been designed to cease functioning at a predetermined point. In be unenforceable, the remaining teens of this Agreement shall remain in effect. addition, many Equipment models are designed to function only with cartridges that Xerox may retain a reproduction (e.g., electronic image, photocopy, or facsimile) of are newly manufactured original Xerox cartridges or with cartridges intended for this Agreement which shall be considered an original and shall be admissible in any use in the U.S. Pquipment configuration that permits use of non-newly action [o enforce [his Agreement Xerox may accept this Agreement either by its manufactured original Xerox cartridges may be available from Xerox at an authorized signaNre or by commencing performance (e.g., Equipment delivery). additional charge. Certain cartridges are also sold as Environmental Partnership All changes to this Agreement must he made in a writing signed by both parties; accordingly, any terms on your ordering documents shall be of no Force or effect. IN ANY ACTION TO ENFORCE THIS AGREF.MF,NT, THE PARTIES AGREE Xerox Form# 51860tFce (07/2004) 8/I 12004 Page 3 Of 6 TO WAIVE THEIR RIGFTf TO A JURY TRIAL. The following four sentences by these Software Terms. New releases of the Base or Application Software that control over every other pan of [his Agreement and over all other documents now are not Maintenance Releases, if any, may be subject to additional license fees at or later pertaining to this Agreement We both intend to comply with applicable Xerox's then-current pricing and shall be considered Base or Application Software laws. In no event will Xerox charge or collect any amounts in excess of those governed by these Sokwere Tenns (unless otherwise noted). Xerox will not be in allowed by applicable law. Any part of this Agreement [hat would, but for this breach of its sofiware support obligations hereunder iF, in order to implement, in Section, he read under any circumstances to allow for a charge higher than that whole a in part, a new release of Base or Application Software provided or made allowed under any applicable legal limit, is limited and modified by this Section to available to you by Xerox, you must procure, at your expense, additional hardware limit [he amounts chargeable under this Agreement to the maximum amount and/or sofiware from Xeroz or any other entity. You agree to return or destroy all allowed under the legal limit. If, in any circumstances, any amount in excess of that prior releases. allowed by law is charged or received, any such charge will be deemed limited by C. Xerox will use reasonable efforts, either directly and/or with its vendors, to the amount legally allowed and any amount received by Xerox in excess of [hat resolve coding errors or provide workarounds or patches, provided you report legally allowed will be applied by us to the payment of amounts legally owed under problems in the manner specified by Xerox. this Agreement, or refunded to you. D. Xerox shall not he obligated (1) ro support any Base or Application Software SOFTWARE TERMS: The following additional terms apply only [o transactions [hat is two or more generations older than Xerozs most current release or (2) to covering Application Software and/or Xerox-brand FquipmenC remedy coding errors if you have modified [he Base or Application Software. 22. SOFTWARE LICENSE. The following terms apply to copyrighted software E. Xerox may annually increase the Annual Renewal and Support-Only Fees, each and the accompanying dceumentation, including, but not limited to, operating such increase not [o exceed 10'9. (For state and Iceal-govemment customers, this system software, provided with or within [he Xerox-brand Equipment acquired adjustment shall lake place at the commencement of each of your annual contract hereunder ("Bate Software") as well as software specifically set out as "Application cycles J Software" on the face of [his Agreement. This license does not apply to any 24. DIAGNOSTIC SOFTWARE. Software used to maintain the Equipment and/or Diagnostic Software or to any sofiware /documentation accompanied by a diagnose its failures or substandard performance (collectively "Diagnostic clickwrap or shrinkwrap license agreement or otherwise made subject to a separate Software") is embedded in, resides on, or may be loaded onto the FquipmenC The license agreement Diagnostic Software and method of entry or access to it constitute valuable trade A. Xerox grams you anon-exclusive, non-transferable license to use the Base secrets of Xerox. Title to the Diagnostic Software shall at all times remain solely Software within the United S[a[es, its terilories, and possessions (the "United with Xerox and/or Xerox's licensors. You agree that (a) your acquisition of the States") only on or with the Equipment with which (or within which) it was Equipment does not gram you a license or right ro use the Diagnostic Softwam in delivered. For Application Software, Xerox grants you anon-exclusive, non- any manner, and (b) that unless separately licensed by Xerox to do so, you will not transferable license [o use this software within the United States nn any single unit use, reproduce, distribute, or disclose the Diagnostic Sokwere for any purpose (or of equipment (or as long as you are current in the payment of any indicated allow third parties [o do so). You agree at all times (including subsequent to the software license tees (including any Annual Renewal Fees). You have no other expiration of [his AgreemenQ to allow Xeroz to access, monitor, and otherwise take rights Io the Base or Application Software and, in particular, may not: (1) steps to prevent unauthorized use or reproduction of [he Diagnostic Software. distribute, copy, modify, create derivatives of, decompile, or reverse engineer this software: (2) activate any software delivered with or within the Equipment in an GOVERNMENT CUSTOMER TERMS: The following additional terms apply unactivated state; or, (7) allow others to engage in same. Title to the Base and only to lease transactions with slate and local govemment customers: Application Software and all copyrights and other imellectual properly rights in it 25. REPRESENTATIONS & WARRANTIES, FUNDING, TAX TREATMENT & shall at all times reside solely with Xerox and/or its licensors (who shall be PAYMF,NT considered third-party beneficiaries of this Agreement's software and limitation of A REPRESENTATIONS & WARRANTIES. You hereby represent and warrant, liability provisions). Base and Application Software may contain, or be modified to as of the date of this Agreement, thaC (1) you are a State or a fully constituted contain, computer code capable of automatically disabling proper operation or political subdivision or agency of the State in which you are located and are functioning of the Equipment Such disabling etxle may be activated if: (a) Xerox authorized ro enter into, and carry out, your obligations under this Agreement and is denied reasonable access to the Base or Application Sokwere to periodically reset any other documents required to be delivered in connection with the Agreement such code; (b) you are notified of a default under any term of [his Agreemem[; or, (collectively, the "Documents"); (2) the Documents have been duly authorized. (c) your license is terminated or expires. executed and delivered by you in accordance with all applicable laws, roles, B. Xerox may terminate your license for any Base Software (I) immediately if you ordinances and regulations (including, but not limited to, all applicable laws no longer use or possess the Equipment or are a lessor of the Equipment and your goveming open meetings, public bidding and appropriations required in connection first lessee no longer uses or possesses it or (2) upon the termination of any with this Agreement and the acquisition of the Equipment) and are valid. legal. agreemem under which you have rented or leased the Equipment binding agreements, enforceable in accordance wish their terms and the person(s) C. If you transfer possession of the Equipment after you obtain title to it. Xerox signing the Documents have the authority to do so, are acting with the full will offer the transferee a license to use [he Base Software within the United States authorizafion of your goveming body and hold the offices indicated below their on or with it subject to Xerox's then-applicable terms and license fees, if any, and signatures, each of which are genuine; (3) the Equipment is essential to the provided the transfer is not in violation of Xerox's rights. immediate performance of a governmental or proprietary function by you within the D. Xerox wartants that the Base and Application Software will perforn in material scope of your authority and shall be used during the lease term only by you and conformity with its published specifications for a ninety (90) day period from the only to perform such function; and, (4) your obligations to remit payments under dale it is delivered or, for software installed by Xerox, the date of sofware this Agreement constitute a current expense and not a debt under applicable state installation. Neither Xerox nor its licensors warrant [hat the Base or Application law and no provision of this Agreement constiNtes a pledge of your tax or general Software will be free from errors or shat its operation will be uninterupled. revenues and any provision [hat is so construed by a court of competent jurisdiction is void from the inception of this Agreement. 23. SOFTWARE SUPPORT. During the period [hat Xerox (or a designated B FUNDWG. You represent and warrant that all payments due and to become servicer) provides Basic Services for the Equipment but in no event longer than five due during your torten[ fiscal year are within the fiscal budget of such year and are (5) years aker Xerox stops taking orders from customers for their acquisition of the included within an unrestricted and unencumbered appropriation currently available subject model of Equipment, Xerox (or a designated servicer) will also provide for [he lease/purehase of the Equipment and that it is your intent to use the software support (or the Base Software under the following terms. For Application Equipment for the entire lease term and to make all payments required under this Software, Xerox will provide this same level of support provided you are current in agreement. In the event that (I) through no action initiated by you your legislative the payment of all Initial License and Annual Renewal Fees (or, for programs not body does not appropriate (ands for the continuation of this Agreement for any requiring Annual Renewal Fees, [he payment of [he Initial License Fee and the fiscal year after the first fiscal year and has no funds to do so from other sources, annual "Support Only" Pees): and (2) you have made a reasonable but unsuccessful effort to find a creditworthy A. Xerox will assure that Base and Application Software performs in material assignee acceptable to Xerox in its sole discretion within your general organization conformity with its published specifications and will maintain a foil-free hotline who can continue Ihis Agreement, this Agreement may be terminated. To effect this during standard business hours to answer related questions. termination, you shall, thirty (30) days prior to the beginning of [he fiscal year for B. Xerox may make available new releases of the Base or Application sofiware which your legislative body does not appropriate funds for such upcoming fiscal thus primarily incorporate coding ertor fixes and are designated as "Maintenance year, send Xerox written notice staling [hat your legislative body failed to Releases". Maintenance Releases are provided at no charge and must be appropriate funds and [hat you have made the required effort to find an assignee. implemented within six (b) months aker being made available [o you. Each new Your notice must be accompanied by payment of all sums then owed through the Maintenance Release shall be considered Base or Application Sokwere governed curent year to Xerox under this Agreement and must certify that the canceled Xerox Fortn# S I860t&e (07/2(X14) 8/112004 Page 4 of 6 Equipment is not being replaced by equipment performing similar functions during your obligations regarding the Equipment, the full amount of the initial license fees the ensuing fiscal year. In addition, you agree at your expense to re[um the shall be immediately due and payable. Equipment in goad condition to a location designated by Xerox and that, when 30. FINANCED SUPPLIES TOTAL. If this option has been selected, the cost of resumed, the Equipment will be free of all liens and encumbrances. You will then any supplies you have purchased under this Agreement shall be paid for through be mleased fmm your obligations to make any further payments [o Xemx beyond your Minimum Lease Payments. If you breach any of your obligations regarding the those due for the current fiscal year (with Xerox retaining all sums paid to date). Equipment, the full amount of [he supply costs shall become immediately due and C. TAX TREATMENT. This Agreemene has been accepted on the basis of your payable. representation that Xeroz may claim any interest paid by you as exempt from federal income tax under Section 103(c) of [he Code. You agree to comply with the 31. REFINANCE OF PRIOR AGREEMENC. If this option has been selected, the information reporting requirements of Section 149(e) of the Code. Such compliance balance of your prior indicated agreement with Xerox or a third party shall be paid shnll include, but not be limited to, the execution of 8038-G or 8038-GC for through your Minimum Lease Payments. 1(your prior agreement is with a third Information Returns. You hereby appoint Xerox as your agent to maintain, and party, you hereby acknowledge [hat you have the right to terminate the agreement Xerox agrees to maintain, or cause to be maintained, a complete and accurate record and agree to provide a statement from the thircl-party identifying the equipment at of aII assignments of [his Agreement in forth sufficient to comply with the book issue and the amount to be paid off (as well as a statement from you identifying the entry requirements of Section 149(a) of the Code and the regulations prescribed Payee and mailing address for your payoff check). If your prior agreement was thereunder from time to time. Should Xerox lose the benefit of [his exemption as a wr[h Xemx, [he use of this refinance option shall render your prior agreement null result of your failure to comply with or be covered by Section 103(c) or its and void. If you breach this Agreement, the full amount of your prior agreement regulations, then, subject [o the availability of funds and upon demand by Xerox, balance shall be immediately due and payable. you shall pay Xeroz an amount equal to its loss in this regard. Af the time of 32. ADJUSTMENT PERIOD. B this option has been selected, your Minimum execution of this Agreement, you shall provide Xerox with a properly prepared and Lease Payment and/or Print Charges shall be adjusted in accordance with the executed copy of US Treasury Fonn 8038 or 8038-GC. information contained in the Adjustment Period portion of this Agreement: as a D. PAYMENT. Your payment is due within thirty (30) days o[ our invoice date. result, your initial payment(s) shall be different from those payable doting the ADDITIONAL TERMS: The following additional terms apply only to the extent valance of this Agreement. that you have agreed to one or more of the options described below: 33. K-16 BILLING SUSPENSION. If this option has Veen selected, the 26. SUPPLIES INCLUDED IN BASE/PRINT CHARGES. If this option has Veen Maintenance Component of your Minimum Lease Paymem and Prim Charges will selected, Xerox for a designated servicer) will provide you with black toner, black be suspended each year during the months indicated. During these months, you Bevel er, co cartrid es. and fuser Consumable Su lies" Ihrou hoot the term agree that you will not use the Equipment and that Xerox shall not be responsible oP PY B ( PP ) 8 for providing Basic Services on it. U Xerox provides Basic Services doting the K- of this Agreement. For full-color Equipment, Consumable Supplies shall also 16 Billing Suspension period, you will be billed at Xerox's then-current Time and include color toner and developer. You agree that [he Consumable Supplies are Materials ("T&M") rates for such Basic Services. Xerox's property until used by you, that you will use them only with the Equipment, that you will return all Cartridges [o Xerox for remanufac[uring once they have 34. TRADE-IN EQUIPMENT. If this option has been selected, you are pmviding been mn to their cease-function point, and that you will return any unused equipment to Xerox as part of this Agreement ("Trade-In Equipment") and the Consumable Supplies to Xerox at [he end of this Agreement Should your use of following shall apply: Consumable Supplies exceed [he typical use pattern (as determined by Xerox) for A. TITLE TRANSFER. You warrant that you have [he right to transfer title to the these items by more than IO%, you agree that Xerox shall have [he right to charge Trade-In Equipment and that it has been installed and performing its intended you for any such excess usage. function for the previous year at the address where the replacement equipment is to 27. REPLACEMENT /MODIFICATION OF PRIOR XEROX AGREEMENT. If ~ ms[alled. Title and risk of loss to the Tmde-In Equipment shall pass to Xerox this option has been selected, this Agreement will replace or modify a prior when Xerox removes it from your premises. agreement between you and Xerox covering the specified equipment If it is a B. CONDITION. You warrant that the Tmde-In Equipment is in good working replacement agreement, the prior agreement shall be null and void. If i[ is a order, has not been modified from its original configuration (other than by Xerox), modification, the prior agreement shall remain in effect except that any terms and has a UL label attached. You agree to maintain the Trade-In Equipment at its presented in this modification agreement that con0id with, or are additive to, any of present sire and in substantially its present condition until removed by Xerox. the terms in the prior agreement shall lake precedence over the terms in the prior C. ACCRUED CHARGES. You agree to pay all accrued charges for the Trade-In agreement for the balance of the Agreement In addition, modifications requiring a Equipment (up to and including payment of [he Final Principal Payment Number) reamortization of your payments may include aone-time administmtive/processing and m pay all maintenance, administrative, supply and finance charges for this charge that will appear on your first bill under [his revised arrangement. eyuipment thmugh the date title passes to Xerox. 28. XP.ROX AS FINANCIAL fNTERMEDIARY. If this option has been selected, 35. RUN LENGTH PLAN. If this option has been selected, the first ten prints of you are leasing specifically identified products that were selected by you and that each original (per ran) are recorded and villed on both meters with all subsequent are not sold by Xerox in the normal course of its business. If you have signed a prints recorded and billed on Meter A only. (Note that if a .5090 family product purchase contract for such products, by signing this Agreement you assign your covered by this plan has its document handler left open, all affected copies will he rights but none of your obligations under such purchase contract to Xerox. With recorded and villed on both meters.) regard to these products, you agree that Xerox is leasing [hem to you "AS IS, 36. FIXED PRICE PLAN. If this option has been selected. Xerox will forego its WHERF, IS" and [ha[ XEROX HAS NOT MADP.. AND YOU HEREBY WANE, right [o increase the Maintenance Component throughout the initial term of this ANY EXPRESS OR IMPLIED REPRF,SENTATIONS OR WARRANTIES WHATSOEVER. INCLUDING. WITHOUT LIMITATION, (a) ANY IMPLIED Agreement. WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR 37. PER-FOOT PRICING. If [his option has been selected, all Print Charges will PURPOSE OR NON-INFRINGEMENT, and Ib) ANY REPRESENTATION OR be billed on a per-foot basis, with each linear foot equal to one print. WARRANTY REGARDING THE PRODUCTS' SUITABILITY, DESIGN, ;g EXTENDED SERVICE HOURS. If this option has been selected. Xerox will CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR provide Basic Services during the hours indicated, with the first number WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR establishing the number of eight-hour shiks covered and the second establishing the APPLICABLE LAW. Xerox assigns [o you, to the extent assignable, any warranty days of [he week (e.g., 2 x 6 would provide service from 8:00 A.M. to 11:59 P.M., rights it has to these products (which rights shall revert to Xerox i(you breach this Monday through Saturday). The cost of this enhanced service coverage will he Agreemenq. You agree (1) that these products are not covered by Xemx's billed separately and, as such, is not included in your Minimum Lease Payment or obligation [o provide Basic Services; (2) to maintain a service agreement for these print Charges. pmduc[s with a service provider acceptable to Xerox throughout this Agreement's term; (3) [o pay all personal property taxes related to these products; and (4) l0 39. ATTACHED ADDENDA. IC this option has been selected, you acknowledge assign to Xeroz any rights you have to these products until title passes from Xerox that one or more specified addenda (as indicated) have Veen provided to you. These to you (which. subject to any software licenses surtounding the acquisition of these addenda, which provide additional terms relevant to the transactions covered pmducls, shall occur when you obtain title to all Xerox-brand Equipment covered hereunder, are hereby fully integrated into this Agreement. by this Agreement). 40. NEGOTIATED CONTRACT. If this option has Veen selected, the Products 29. FTNANCED SOFTWARE TOTAL. If this option has been selected, the initial identified in this Agreement are subject solely to the terms contained in (a) either license fees for any Application Software se[ forth in this Agreement shall be paid (1) the identified Negotiated Contract for a lease transaction or (2) if there are no (or through your Minimum Lease Payments. If you breach [his license or any of such lertns in the Negotiated Contract the terms set forth in this Agreement, and, if Xerox Fortnit 518601&c (07/2004) 8/1 I/2fHM Page 5 of 6 applicable and notwithstanding anything to the contrary set forth in the Negotiated Contrec4 (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. 41. DSA COMRACT 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 under the referenced Document Services Agreement ("DSA"), but 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 Porm# 518601&c (07/2(84) 8/11/2004 Page 6 of 6