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mmixTechnalogy, Onc.
<br />asut:sidiaryof paym~p
<br />TERMS AND CONDITIONS APPLICABLE TO
<br />PURCHASE OF GENERAL PURPOSE
<br />COMMERCIAL INFORMATION TECHNOLOGY
<br />NEWEQUIPMENT(SPECIAL ITEM NUMBER 132-8)
<br />1. GLOSSARY OF DEFINITIONS
<br />a. "Documentation" shall mean Manufacturer's then current
<br />help guides, specifications and operating manuals issued by
<br />Manufacturer and made generally available by Manufacturer for
<br />the Equipment whether on-line or in hard copy.
<br />b. "Equipment" shall mean the computer hardware identified
<br />on Attachment B to this schedule pricelist.
<br />2. MATERIAL AND WORKMANSHIP
<br />All Equipment furnished hereunder must substantially perform the
<br />function for which it is intended as set forth in the accompanying
<br />Documentation.
<br />3. ORDER
<br />Wntten orders, EDI orders (GSA Advantage! and FACNET),
<br />credit card orders, and orders placed under blanket purchase
<br />agreements (BPA) agreements shall be the basis for purchase in
<br />accordance with the provisions of this contract. If time of delivery
<br />extends beyond the expiration date of the contract, the Contractor
<br />will be obligated to meet the delivery and installation date
<br />specified in the original order.
<br />For credit card orders and BPAs, telephone orders are
<br />permissible.
<br />4. TRANSPORTATION OF EQUIPMENT
<br />FOB DESTINATION. Prices cover Equipment delivery to
<br />destination, for any location within the geographic scope of this
<br />contract.
<br />INSTALLATION AND TECHNICAL SERVICES
<br />a. INSTALLATION. When the Equipment provided under
<br />this contract is not normally self-installable, the Contractor its
<br />Manufacturer or other authorized service provider's technical
<br />personnel shall be available to the Ordering Activity, at the
<br />Ordering Activity's location, to install the Equipment and to train
<br />Ordering Activity personnel in the use and maintenance of the
<br />Equipment. The charges, for such services are listed by
<br />Manufacturer, in the schedule pricelist.
<br />b. OPERATING AND MAINTENANCE MANUALS. The
<br />Contractor or its Manufacturer shall furnish the Ordering Activity
<br />with one (1) copy of all Documentation, which is normally
<br />provided with the Equipment being purchased. For
<br />Documentation only available on-line, Contractor or its
<br />Manufacturer shall provide Ordering Activity access to such
<br />Documentation.
<br />forth below; and (2) before any substantial change occurs in the
<br />condition of the item, unless the change is due to the defect in
<br />the item.
<br />7. WARRANTY
<br />a. Unless specified otherwise in this contract, the
<br />warranties extended to the Ordering Activity for Equipment and
<br />Documentation, and the exclusions and disclaimers applicable to
<br />such warranties, shall be as set forth on Attachment A to this
<br />schedule pricelist (Contractor Supplemental Pricelist Information
<br />and Incorporated Terms). Notwithstanding anything to the
<br />contrary that may be marked on or provided with the Equipment
<br />or Documentation, the parties understand and agree that such
<br />warranties, exclusions and disclaimers follow the applicable
<br />Manufacturer's standard commercial warranties, exclusions and
<br />disclaimers but are provided to the Ordering Activity by the
<br />Contractor, who will be responsible to the Ordering Activity for all
<br />compliance, service and remedies thereunder.
<br />Limitation of Liability
<br />i) Exclusion of Consequential Damages. EXCEPT FOR A) A
<br />CLAIM OF IP INFRINGEMENT HEREUNDER, OR B) AS
<br />PROVIDED IN SUBSECTION (c)(iii) BELOW, IN NO EVENT
<br />SHALL CONTRACTOR BE LIABLE FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
<br />INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
<br />PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR
<br />ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT
<br />OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED
<br />OF THE POSSIBILITY OF SUCH DAMAGES.
<br />ii) Limitation of Direct Damages. Except for a) a claim of IP
<br />Infringement, hereunder, or b) as provided in subsection (c)(iii)
<br />below, the aggregate and cumulative liability of Contractor for
<br />damages hereunder shall in no event exceed the amount of fees
<br />paid by Ordering Activity under the order giving rise to such
<br />liability, and if such damages relate to particular Equipment such
<br />liability shall be limited to fees paid for the relevant Equipment.
<br />iii) Non-Applicability to Statutory or Regulatory Rights. Nothing
<br />herein shall operate to impair or prejudice the U.S. Government's
<br />right (a) to recover for fraud or crimes arising out of or relating to
<br />this contract under any Federal fraud statute, including without
<br />limitation the False Claims Act (31 USC §§3729 through 3733), or
<br />(b) to express remedies provided under any FAR, GSAR or
<br />Schedule 70 solicitation clauses incorporated into this contract,
<br />including without limitation the GSAR 552.215-72 Price
<br />Adjustment -Failure to Provide Accurate Information (August
<br />1997) or GSAR 552.238-75 Price Reductions (May 2004)
<br />Alternate I (May 2003).
<br />c. Inspection and repair of defective Equipment under this
<br />warranty may be performed, at the option of the Contractor, at a
<br />service facility/plant authorized by the Contractor. The Ordering
<br />Activity may not return defective Equipment to the Contractor, the
<br />Manufacturer or its authorized service provider for repair or
<br />replacement without prior consultation and instruction.
<br />6. INSPECTION/ACCEPTANCE
<br />The Contractor shall only deliver those items ordered that
<br />substantially conform to the requirements of this contract and the
<br />applicable Manufacturer's Documentation. Therefore, items
<br />delivered shall be deemed accepted upon delivery to Ordering
<br />Activity's designated receiving facility. The Ordering Activity
<br />reserves the right to inspect or test any equipment that has been
<br />delivered. The Ordering Activity may require repair or
<br />replacement of nonconforming equipment at no increase in
<br />contract price. The ordering activity must exercise its post-
<br />acceptance rights (1) within the applicable warranty period as set
<br />8. PURCHASE PRICE FOR ORDERED EQUIPMENT
<br />The purchase price that the Ordering Activity will be charged will
<br />be the Ordering Activity purchase price in effect at the time of
<br />order placement (which shall not exceed the price agreed to at
<br />the time of award of the GSA Schedule contract, as may be
<br />revised from time to time through a contract modification agreed
<br />to and issued by the GSA Schedule contrasting officer), or the
<br />Ordering Activity purchase price in effect on the installation date
<br />(or delivery date when installation is not applicable), whichever is
<br />less. Provided, however, that the Ordering Activity shall only be
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