Contract for Sale of Computer Existing Equipment
1. Parties. [name], having an office at [address] (Buyer), agrees to purchase, and [name], having an office at [address] (Seller), by acceptance of this Agreement, agrees to sell the Equipment (as defined in subparagraph 2(a)) on the terms contained in this Agreement.
a. Equipment. The term "Equipment" means the items described in Schedule A, attached to this Agreement [omitted], which are presently installed at Buyer's office at [address], under a lease agreement between Buyer and Seller made [date].
b. Effective Date. The term "Effective Date" means the later of
i. The Price Quotation Date contained in Paragraph 2(c); or
ii. The date Seller receives this Agreement at Seller's office address stated in Paragraph 1.
c. Price Quote Date. The Price Quote Date is [date].
3. Price. The price payable by Buyer is that stipulated on Schedule A plus the additional charges, if any, provided in this Paragraph 3 and in Paragraph 5. Buyer shall pay any taxes levied on this sale regardless of how designated, including sales, excise, or privilege taxes, but excluding taxes based on Seller's net income. Buyer shall also pay any personal property taxes payable with respect to the Equipment on and after the Effective Date.
4. Payment. Buyer must pay to Seller the total purchase price for the Equipment within [number] days after the date of this Agreement, provided that as of such date (a) this Agreement has been accepted by Seller and (b) Seller has notified Buyer of the total purchase price due.
5. Price Changes. The prices contained in Schedule A are effective up to and including the Price Quote Date. If the Effective Date is later than the Price Quote Date, then such prices are subject to change. If the price of any item of Equipment is increased, then Buyer may elect to cancel this Agreement as to such item. This cancellation must be made by written notice to Seller sent within [number] days of receipt of notice of the price increase.
6. Title and Termination of Lease. Title to the Equipment shall pass to Buyer as of the Effective Date, provided Seller has accepted this Agreement, on such date or immediately thereafter, by signing this Agreement. The lease of the Equipment described in Paragraph 2(a) shall terminate as to all items of Equipment purchased under this Agreement as of the date title to such Equipment passes to Buyer.
7. Risk of Loss. Risk of loss or damage remains with Seller (and its insurers, if any), up to and including the date title passes to Buyer. This includes damage caused by Buyer's negligence, but excludes loss or damage caused by nuclear reaction, nuclear radiation, or radioactive contamination. Thereafter, risk of loss or damage is with Buyer.
a. Old Equipment. Any item of Equipment that has been installed at Buyer's premises for more than [number] months is purchased "as is," with all faults. All other Equipment is subject to the warranties contained below.
b. Service and Parts Warranty. Seller will maintain the following items of Equipment in good working order, at no charge to Buyer, for the following periods:
[schedule of equipment specifying type of machine and service warranty period]
Seller will make all necessary adjustments, repairs, and replacement of parts at Buyer's request. All replacement parts will be new or equivalent to new in performance. Replaced parts become the property of Seller, on an exchange basis.
Seller may store on Buyer's premises any parts or maintenance equipment necessary to service the machines under warranty.
Service will normally be furnished by Seller's nearest branch office. Seller shall have full and free access to the machines in order to service them. Buyer will not be charged for travel expenses incurred in servicing machines under warranty, except where such machines cannot normally be reached by automobile or scheduled public transportation. Buyer must promptly notify Seller of any change in location of a machine during its period of warranty.
Seller will furnish service not covered by this warranty at its applicable hourly rates, and on terms in effect at the time.
c. Parts Warranty. Seller warrants that each [category] Equipment, excluding solid state and other electronic devices that are warranted for [number] months, will be free of defects in material and workmanship for [number] years. Seller's obligation is limited to providing replacements for parts. Buyer must promptly notify Seller of any part Buyer believes is defective. Seller will replace any part found to be defective upon inspection by Seller. All replacement parts will be new or equivalent to new in performance. All replaced parts become the property of Seller on an exchange basis. Seller will furnish no service under this parts warranty.
9. Limitation of Warranty.
a. The warranties provided in Paragraph 8 do not apply to the repair of damage (or any increase in service time) caused by the following:
i. Accident, transportation, neglect, or misuse;
ii. Alterations of the Equipment (including, but not limited to, any deviation from the circuit or structural machine designs provided by Seller, installation or removal of [features], and any other modifications), and maintenance performed by anyone other than Seller's representatives;
iii. Any item other than a machine owned by Seller, or under warranty with Seller or covered by a maintenance agreement with Seller;
iv. Failure to provide a suitable installation environment with all facilities required by Seller's appropriate "installation manual-physical planning" (including, but not limited to, failure of or the failure to provide adequate electric power, air conditioning, or humidity control);
v. Use of supplies or materials that do not meet Seller's specifications for installation; or
vi. Use of the Equipment for purposes other than those for which it was designed.
b. Seller is not responsible for:
i. Failure to provide service or parts due to causes beyond its control;
ii. Service or replacement of parts required to adjust or repair any item or part, if it is impractical to do so due to alterations in the machine or its connection to another machine or device; and
iii. Service or replacement of parts if the machine is located outside the United States or Puerto Rico.
10. Responsibility for Use and Damage. Buyer is responsible for proper use, management, and supervision of the Equipment and programs, audit controls, operating methods, and office procedures for establishing any controls required over access to data, and for establishing all procedures governing the intended use of the machines and the security of the data stored in them. Seller will not be liable for any damages caused by Buyer's failure to fulfill any of the responsibilities stated in this Paragraph.
11. Alterations. Seller may, at its expense, make any alterations to the Equipment as may be required to make them conform to the descriptions contained in this Agreement. Such alterations will be made at such times as are mutually acceptable to Buyer and Seller.
12. Limited Liability.
a. Warranty Limitation. THE WARRANTIES CONTAINED IN PARAGRAPH 8 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. Claims and Actions. Seller shall not be liable to Buyer in any event for lost profits or for consequential damages. Seller shall not be liable to Buyer for any claims against Buyer made by a third party, except patent infringement claims as provided in Paragraph 14. Neither party may bring any action arising out of this Agreement more than one year after such action has accrued, except for an action for nonpayment, which may be brought up to one year after the date of the last payment made under this Agreement.
13. Service and Parts. Seller will provide, at Buyer's request, maintenance service for machines, and repair or replacement parts as long as they are generally available, at Seller's established prices and on terms prevailing at the time.
Seller will also, on request, provide Buyer with any attachments, features, or engineering changes that may be suitable for use with the Equipment and may be available from time to time. Such items will be provided at Seller's prevailing price and terms.
14. Patent Indemnity.
a. Agreement to Defend and Indemnify. Seller will defend, at its own expense, any action brought against Buyer based on a claim that the Equipment, or the operation of the Equipment, using any program or system control programming furnished by Seller, infringes a U.S. patent. Seller will also pay costs and damages finally awarded against Buyer in any such claim, subject to Paragraphs 14(b) and 14(c).
b. Conditions. Seller's obligations under Paragraph 14(a) are conditioned on the following:
i. Buyer must promptly notify Seller, in writing, of any notice of such claim;
ii. Seller must have sole control of the defense of any such action and all negotiations for its settlement or compromise; and
iii. If the Equipment or its operation is, or is likely, to become (in Seller's opinion) the subject of a U.S. patent infringement claim, the Buyer must permit Seller, at its option and expense, to obtain for Buyer the right to continue using the machine, to replace or modify the machine to make it noninfringing, or to accept the return of the machine and grant Buyer a credit for such machine, as depreciated. Depreciation will be calculated at an equal amount per year over the life of the machine, as established by Seller.
c. Limitation. Seller will have no liability to Buyer for any claim of patent infringement based on:
i. The combination, or use, of any item of Equipment with other machines or devices not made by Seller;
ii. Operation of any item of Equipment using any program, other than, or in addition to, any program or system control programming furnished by Seller; or
iii. Modification by Buyer of any item of Equipment or the programs or system control programming furnished by Seller.
d. Total Extent of Liability. The provisions of Paragraph 14 state the entire liability of Seller with respect to patent infringement.
15. Assignment. This Agreement is not assignable without written permission from Seller. Any attempt at assignment, without such permission, is void.
16. Governing Law. This Agreement will be governed by the laws of [state].
17. Entire Agreement. This document is the complete and exclusive Agreement between Seller and Buyer. It supersedes all oral or written proposals and all other communications between Seller and Buyer regarding the Equipment.
18. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that shall not affect or impair, in any way, the validity, legality, or enforceability of the remainder of this Agreement.
19. Oral Changes. This Agreement may only be changed in a later written agreement signed by Seller and Buyer.