01-09-2006 Council Packet - Laserfiche WebLink

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similar to, the item of Hardware for which Remedial Maintenance Services are being performed (a "Loaner Unit"). If the Remedial Maintenance Services are being performed pursuant to Subsection 3(c)(ii) above, Customer shall pay ES&S for the use of the Loaner Unit at ES&S' then-current rates including the cost of shipping. If the Remedial Maintenance Services are being performed pursuant to subsection 3(c)(I), customer is not responsible for the costs for the use of the loaner unit. d. Exclusions. ES&S has no obligation under this Agreement to (i) repair or replace Hardware components which are consumed in the normal course of operating the Hardware, including printer ribbons, paper rolls, batteries, removable memory packs, cancellation stamps, ink pads or red stripe pens, or (ii) repair any item of Hardware from which the serial number has been removed or altered. in addition, ES&S may, at any time in its discretion, determine that any item of Hardware is no longer fit for Hardware Maintenance Services because it is in such poor condition that it cannot practically be restored to Normal Working Condition, or cannot be restored to Normal Working Condition at an expense which is less than the then- current value of such item. If such a determination is made, ES&S shall no longer be required to provide Hardware Maintenance Services for such item of Hardware, ES&S shali also refund to Customer an amount equal to (1) that portion of the most recent fee paid for Hardware Maintenance Services which is attributable to such item of Hardware, multiplied by (2) a fraction, the numerator of which is the remaining number of days in the Hardware Maintenance Term or renewal period for which such fee was paid and the denominator of which is the total number of days in such Hardware Maintenance Term. e. Sole Provider; Access. Customer shali not permit any individual other than an ES&S Representative to provide maintenance or repairs with respect to the Hardware for so long as a Hardware Maintenance Term is in effect. Customer shall provide ES&S Representatives with all information necessary to enable them to provide Hardware Maintenance Services. Customer shall likewise provide full access to the Hardware and adequate working space for all Hardware Maintenance Services performed at its Designated Location, including sufficient heat, lights,ventilation, electric current and outlets. f. Storaqe. Customer shall properly store the Hardware when it is not in use. 4. Fees. In consideration for ES&S' agreement to provide Hardware Maintenance Services under this Agreement, Customer shall pay to ES&S a fee for the initial Hardware Maintenance Term and each renewal period. Such fee shall be in addition to any fees or charges separately referred to in any Section of this Agreement. The fee for the initial Hardware Maintenance Term is set forth on Attachment 1 and is due on the effective date of this Agreement. ES&S may increase the fee for a renewal period by not more than 3% 5°6 of the amount of the most recent fee paid by Customer. The fee for any renewal period shall be due and payable no later than thirty (30) days prior to the beginning of such renewal period. 5. Taxes; Interest. Customer will provide ES&S with proof of its tax-exempt status. If Customer does not provide such proof, it shall pay, or shall reimburse ES&S for, all sales and use, excise or other similar taxes imposed on the transactions contemplated by this Agreement, but shall in no event be liable for taxes imposed on or measured by ES&S' income. If Customer disputes the applicability of any tax to be paid pursuant to this Section 5, it shall pay the tax and may thereafter seek a refund. Any disputed or undisputed payment which is past due to ES&S wili bear interest at the rate of one and one- half percent per month (or such lesser amount as may be permitted by applicable law) for each month or portion thereof during which it remains unpaid. 6. Limitation of Liabilitv. Neither party will be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever arising out of or relating to this Agreement. Any action by Customer against ES&S shall be commenced within 1 year after the cause of action has accrued. ES&S will not be liable under this Agreement for any claim, damage, loss,judgment, Page 3 of 5 3