Xerox/Court
i
LEASE AGREEMENT
Fun Legal Name
Customer Name (Bill to)
DBAlName Overflow
Street Address
Box#/Routing
City, State
Zip Code
TaxlD#
Customer Name (Install) CARMEL CITY COURT
DBAlName Overflow (ifreq'd)
Installed at Street Address ONE CIVIC SQUARE
Floor/Room/Routing
City, State CARMEL, IN
Zip Code 46032-2584
County Installed In Hamilton
Customer Requested Install Date 0111912006
CARMEL CITY COURT
ONE CIVIC SQUARE
CARMEL, IN
46032-2584
{orrfyW/f (Xl.O /. Of,. 02---
XEROXlI
Check all that apply
o Assoc.lCoop. Name:
~Negotiated Contmct #:O7?l fi4~(ln
DValue Added Services:
o Attached Customer P.O. #5:
Lease:
~ State or Local Government Customer
Int. Rate: % Total Int. pa able: $
Replacement/Modification of Prior Xerox Agreement
Agreement covering Xerox Equipment Serial# (or 95#):
is hereby 0 modified 0 replaced Effective Date:
Comments:
Lease Information , Lease Term :
OOSupplies included in Base/Print Charges
o Refin. ofPnor Agrmt. :0 Xerox (95#):
Amt Refin: $ Int Rate: %
o DSA Contract #: ~
Supplies:
60months
o 3rd Party Eq,
Total Int Payable: $
Lease Povmellt Information
Product Purchase Down Prey Fin')
(with serial number, ifin place equipment) Ontion Pavrnent Install Intenn
DC430 430 W/DADF.DUP.2TRA Y $FMV $
I1CRU32METR I )DC32CT $
Customer Ed S
$
$
$
274.98 : MINIMUM LEASE PAYMENT (excl. ofapplic. taxes)
Min. Lease Pa\'ment Freu.
(periodic, excluding cxcessmeter cbarges)
o Monthly DQuarterly
o Semi-Annnal DAnnual
o Other
Min. Lease Pa\'ment Mode
DAdvance 0 Arrears
Price Information
Periodic Base Charge
Print Charge Meter I:
Prints 1 7000
Prints 7001 ~ +
Prints
Print Charge Meter 2:
Prints 1 -
Prints
Periodic Min.# of Prints
(based on Meter 1 Print Charges)
o Adiustment Period
Period A - Mos. Affected:
Periodic Base Charge
Print Charge Meter 1:
Prints 1
Prints
Prints
Print Charge Meter 2:
Prints I .
Prints $
Periodic Mm.# of Prints
7000 (based on Meter I Print Charges)
o
Period B - Mos. Affected:
Periodic Base Charge
Print Charge Meter 1:
Prints I
Prints
Prints
Print Charge Meter 2:
Prints I .
Prints
Periodic Min,# of Prints
(based on Meter I Print Charges)
Purchased Sunil lics o Cash 0 Fin'd
Reorder # Otv Descrintion rice
$
$
- $ "
$
Total Price $
o
!&l Trade~ln Allowance
Manufacturer
XEROX
Total Allowance Applied to:
Modell
Serial #
EYC020207
Final Allowance
Princioal Pavrnent #:
30 $
$
Total Allowance
!&lTrade-In Equip. Balance:
o Price of Rep1cmnt. EQuip.: $
AgreeUlcnt Prcsented By:
Xerox Name: Kathleen A Gill
I .. JHORlZED H
A~c<.1)tl;;d:
By:
Titl..::'
Workshw: B25026
Xerox Form# 51860 (05/2005)
..r~one: (31 71471-973 5
TERNAL USE ONLY:
Xl:.'f(lx. C(lloration
(SigJJutur.?qfAurhorb!dSignel) ,tl~\~
Dute: \ INJ~
Unit: l/19/2006 J3:42:46 .
www.xerox.com
Annlication Softwarc
Software Title Initial License Fee Annual Renewal Fee
o Cash o Finance o Suooort Onlv
$ $
$ $
$ $
Total Initial License Fees = $
o K~16 Billing , Additional Options (check all that applv)
Susnension 0 Run Length Plan ~Flxed Price Plan
(check 1 as required) 0 Per-Foot Pricing
MODths affected 0 Extended Sendee Hours:
o June only Description: I $ 0 mo.
o July only 0 Attached Addenda:
o August only
o June - Jnly 0 Other Addenda:
o July - August
Cl!STOl\tER ACKNOWLEDGES RECEIPT OF THE TERMS OF THIS
AGREEMENT (CONSISTING OF 6 PAGES INCLUDING TIllS FACE PAGEl
Auth. Signer Name: Gail Bardach
(Plenseri
\/~
llIhorizetl SlgneJ)
Signature:
ignatllr. jAut orize .1 ner}
Aurh. Signer Title: Judge
E-Mail:
IiITax Exempt (*Mu.rt attach Sales Ta." Exemption Certificate)
Phone: (317)571-2408
1/1912006
Page 1 of6
GENERAL TERMS: The following tenns apply to all lease transactions:
I. PRODUCTS. The tenn "Products" shall rerer collectively to all equipment (the
"Equipment"), software, and supplies ordered under 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, tRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER. ANY CLAIM AGAINST XEROX MAY BE
ASSERTED SOLELY AGAINST XEROX IN A SEPARATE ACTION.
J. LEASE COMMENCEMENT, PAYMENT, TAXES & CREDIT HISTORY.
A. The lease tenn for this Agreement shall commence upon installation of the
Equipment; provided, however, for customer-installable Equipment, the lease tenn
ror 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 hy Xerox no later than thirty (30) days after the iR\'oice
date. Restrictive 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 unless 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 amounts payable to Xerox by you for the
billing of Products, Print Charges, services and maintenance of ,my kind; Taxes
include, but are not limited to, sales and use, rental, excise, gross receipts 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
authority detennines 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 eredit inquiries as Xerox may deem necessary
at any time, furnish payment history infonnation to credit reporting agencies, and
release to prospective assignees of this Agreement or any rights hereunder credit-
related infonnation Xerox has about you and this Agreement.
4. BASIC SERVICES. As a mandatoI)' part of a leasc, Xerox (or a designated
servicer) will provide the following Basic Services under this Agreement (unless
you are acquiring Equipment for which Xerox does not otTer Basic Services; such
Equipment to be dl."Signatcd as "No Svc."):
A. REPAIRS & PARTS. Xerox will make repairs and adjustments neccssul)' 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-recognized
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 cover repairs and adjustments
required as a result of nonnal wear and tear or defects in materials or workmanship
(and shall exclude repairs or adjustments Xerox detennines to relate to or be
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
consumab]es). You agree 10 use Equipment in accordance with, and to perfonn 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 confonn to Xerox's published requirements throughout the tcnn 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 re<1dings as required,
Xerox may estimate them and bill you accordingly.
D. EQUIPMENT REPLACEMENT. If Xerox is unable to maintain the
Equipment as dl.'Scribed 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 provided pursuant to this Section, there will not bc an
Xerox Fonn# 51860t&c (05/2005)
additional charge for the replacement product and. except as set forth in the section
of this Agreement titled "MAINTENANCE COMPONENT PRICE INCREASES",
there will not be an additional charge for Basic Services during the then-current
tenn 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 units,
including copy/print cartridges and xerographic modules or fuseI' modules
("Cartridges"), you agree to use only urnnodifierl Cartridges purchased directly
from Xerox or its authorized resellers in the United States and the failure to use
such Cartridges shall void any wammty applicable to such Equipment.
F. PC/WORKST A TION 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 (I) has been provided
by Xerox or (2) meets Xerox's published specifications.
G. DELIVERY AND REMOVAL Xerox will be responsible 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 Unifonn Commercial Code. Except to
the extent expressly provided, herein and to the extent pennitted by applicable law,
you waive all rights and remedies conferred upon a lessee by said Article.
6. INTELLECTUAL 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 pennit Xerox to direct the defense. Xerox is not responsible for any non-Xerox
litigation expenses or settlements unless it preapproves them in writing. To avoid
infringement, Xerox may modify or substitute an equivalent Xerox-brand Product,
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 liahilities outside the scope 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 provided by
Xerox.
7 . LIMITATION OF LIABILITY. Xerox shall not be liable to you for any direct
damages in excess of S1 0,000 or the amounts paid hereunder, 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 under 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 he granted by Xerox if: (I) 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 detennined by Xerox in its sole discretion; and,
(4) you and the proposed assignee execute a writing, in a fonn acceptable to Xerox,
continning 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 pany financial transaction without prior notice to you;
providerl, 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 pennilted by the preceding sentence, Xerox, without notice to you,
may release infonnation it has about you related to this Agreement. Each
successive assignee of Xerox shnll have a]] of the rights but none of the obligations
of Xerox hereunder. You shall continue to look to Xerox for perfonnance 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 perfonnance of Xerox's obligations hereunder. You shall not assert any
defense. counterclaim or setoff that you may have or claim against Xerox against
1/18/2006
p,gc20f6
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 l.1:=ase 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 annually
increase that amount of the Minimum Lease Payment and Print Charges you arc
charged for maintenance of the Equipment (the "Maintenance Component"), each
such increase not to exceed 10%. (For state and local government customers, Ihis
ndjustment shnll lake place at the commencement of each of your annual contract
cycles.)
II. TITLE, RISK & RELOCATION. Title to the Equipment shall remain with
Xerox until you exercise your option to purchnse it. Until you exercise your option
to purchase the Equipment, yuu 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.lcase or part with possession of it or file or pennil to be filed any lien against it;
nnd, (d) you will nol make any penmment 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 until you exercise your option 10
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 cannot be relocated outside of the United
States, ils territories or possessions until you have exercised the Purchase Option
indicated in this Agreement. If you acquire title 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 latc charge equal to the
higher of five percent (5%) of the amount due or $25 (not to exceed the maximum
amount pennitted by law) as reasonable collection costs.
B. You will be in default under this Agreement if (I) Xerox does not receive any
payment within fifteen (15) days aftcr the date it is due or (2) if you breach any
other obligation hereunder. If you default, Xerox, in addition to its other remedies
(including the cL'Ssation of Basic Services), may require immediate payment, as
liquidated damages for loss of bargain and not as a penalty, of: (a) all amounts then
due, plus interest on all amounts due from the due date until paid at the rate of one
and one-half percent (1.5%) per month (not to exceed the maximum amount
permitted by law); (b) the remaining Minimum Lease Payments in the Agreement's
term less any unearned finance, maintemmce, 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 (15%) of the amount in (b) above (said
amounl is available from Xerox upon request); and (d) all applicable Taxes. You
also shall either (I) make the Equipment available for removal by Xcrox 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, 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. CARTRlDGES. 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
Cartridgc(s) for many models of Equipment have been designed to cease
functioning at a predetermined point. In addition, many Equipment models arc
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 pennits use of non-newly manufactured original Xerox
Cartridges may be available from Xerox at an additional charge. Cartridges sold as
Environmental 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 FOIm# 51 860t&c (0512005)
14. EQUIPMENT STATUS. Unless you arc acquiring Previously Installed
Equipment, Equipment will be either (a) "Newly Manufactured", which may
contain some recycled components that are reconditioned; (b) "FactoI)' Produced
New Model", which is manufactured and newly serialized at a Xerox factory, adds
functions and features to a product previously disassembled to a Xerox
predetermined standard, and contains both new components and recycled
components that are rl..'Conditioned; or, (c) "Remanufactured", which has been
factoI)' 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. Ifnot 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 amount 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 amounts then due; (2) the
remaining Minimum Lease Payments in the Agreement's term less any unearned
finance, maintenance, and supply charges (as reflected on the lessor's books and
records); (3) a reasonable disengagement fee calculated by Xerox that will not
exceed fifteen percent (15%) of the amount in (2) above (said amount is available
from Xerox upon request); (4) the applicable Purchase Option; and (5) all
applicable Taxes.
B. RENEWAL. Unless either party provides notice at least thirty (30) days before
the cnd of the lease term of its intention not to renew this Agreement, it will be
renewed automatically on a month-to-month hasis 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 TER.\HNA TION. Upon termination pursuant to B. above, and if you
have not purchased the Equipment, 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 deli\'ered (reasonable wear
and tear excepted), together with any related software.
16. PROTECTION OF XEROX'S RIGHTS. You herehy authorize Xerox or its
agenls to file, hy any pennissible means, financing statements necessal)' 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 that
you rail to take.
17. REPRESENTATIONS, WARRANTIES & COVENANTS. Eacb party
represents that, as of the date of this Agreement, it hns the lawful power and
authority to enter into this Agreement, the individuals signing this Agreement are
duly authorized to do so on its behalf and, by entering this Agreement, it will not
violate 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 10 satisfy your
payment obligations undl..'f this Agreement and all financial infonnation 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 ofa change 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 overnight
courier, to the other party's business address, or to such other address designated by
either party to the other by wriUen notice given pursuant to this sentence. The tenn
"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, bul 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 / or transportation; or, a
restriction imposed by legislation, an order or a rule or regulation ofa govemmental
entity. If such a circumstance occurs, Xerox shall undertake reasonable action to
notify you of the same.
20. MISCELLANEOUS. This Agrcement constitutes the entire agreement as to its
subject matter, supersedes all prior and contempornneous oral and written
agreements, and shall be construed under 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 stale courts in Monroe County, New York. In any action to
enforce this Agreement, the parties agree to waive their right to a jUlY trial. [f a
1/]812006
Page 3 of6
court finds any term of this Agreement to be unenforceable, the remaining terms of
this Agreement shall remain in effect. Both parties may retain a reproduction (e.g.,
electronic image, photocopy, facsimile) of this Agreement which shall be
admissible in any action to enforce ii, but only the Agreement held by Xerox shall
be considered 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 tenns on your ordering documents
shaH be of no force or effect. The following four 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 colle-et any amounts in excess of those nllowed by applicable law.
Any part of this Agreement that would, but for this Section, be read under any
circumstances to allow for a charge higher than that allowed under any applicable
legal limit, is limited and modified by this SL'Ction to limit the amounts chargeable
under this Agreement to thc maximum amount allowed under the legal limit. If, in
any circumstances, any amount in excess of that allowed by law is charged or
received, any such charge will be deemed limited by the amount legally allowed
and any amount received by Xerox in exce.<;s of that lcgally allowed will he applied
by us to the payment of amounts legally owed under'this Agreement, or refunded to
you.
SOFTWARE TERMS: The following additional ternlS 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, provided with or within the Xerox-hrand 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 I documentation accompanied by a
click wrap or shrinkwrap license agreement or otherwise made subject to a separate
license agreement.
A. Xerox grants you a non-cxclusive, non-transferable license to use the Base
Software within the United States, its tenitories, 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-
transrerahle license to use this software within the United States on any single unit
of equipment for as long as you are current in the payment or 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: (I)
distribute, copy, modify, create derivatives or, decompile, or reverse 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 beneliciaries of this Agreement's software and limitntion of
liability provisions). Base and Application Software may contain, or be modified to
contain, computer eode capable of automatically disabling proper operation or
functioning of the Equipment. Such disabling code may be activated if: (a) Xerox
is denied reasonable acccss to the Base or Application Software to periodically reset
such code; (b) you are notified of a default under any tcnn of this Agreement; or,
(c) your license is tenninated or expires.
B. Xerox may terminate 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 tennination of any
agreement under which you have rented or leased the Equipment.
C. If you transfer possession of the Equipment after you obtain title to it, Xerox
will oITcr 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 tmnsfer is not in violation of Xerox's rights.
D. Xerox warrants that the Base and Application Software will perform in material
confonnity with its user documentation for a nincty (90) day period from the date it
is delivered or, for software installed by Xerox. the date of software instnllation.
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. DUling the period that Xerox (or a designated
s~icer) provides Basic Services for the Equipment but in no event longer than five
(5) 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 lor thc Base Software under the following terms. For Application
Software licensed pursuant to this Agreement, Xerox will provide software support
under the following tenns 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 Fonn# 518601&' (05/2005)
A. Xerox will assure that Base and Application Software petforms in material
confonnity with its user documentation and will maintain a toll-free hot line 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 elTOr fixes and arc designated ns "Maintenance
Rcleases". 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 Application Software governed
by these Software Tenns. New releases of the Base or Application Software that
are not Maintenance Releases, if any, may be subject to additiona11icense fees at
Xerox's then-current pricing and shall be considered Base or Application Sofu.\.'are
governed by these Software Terms (unless otherwise noted). Xerox will not be in
breach of its software support obligations 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 vendors, to
resolve coding elTOrs or provide workarounds or patches, provided you report
problems as specified by Xerox.
D. Xerox shall not be obligated (1) 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 commencement 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 entl)' or access 10 it constitute valuable 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, reproducc, distribute, or disclose the Diagnostic Software ror any purpose (or
allow third parties to do so). You agree at all times (including subsequent to the
expiration ofthis Agreement) to allow Xerox to access, monitor, and otherwise take
steps to prevent unauthorized use or reproduction of the Diagnostic Software.
GOVERNMENT CUSTOMER TER..\1S: The following additional tenns apply
only to lease transactions with state and local government customers:
24. REPRESENTATIONS & WARRANTIES, FUNDING, TAX TREATMENT &
PAYMENT.
A. REPRESENTATIONS & WARRANTIES. You hereby represent and warrant,
as of the date of this Agreement, that: (I) you are a State or a fLfl1y constituted
political subdivision or agency of the State in which you are located and are
authorized to cnter inlo, and carry out, your obligations under this Agreement and
any other documents required to be delivered in connection with the Agreement
(collectively, the "Documents"); (2) the Documents have been duly authorized.
execuled and delivered by you in accordance with all applicable laws, rules,
ordinances and regulations (including, but not 1imilcd to, all applicable laws
governing open meetings, public bidding and appropriations required in connection
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 Documcnts 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 ofa governmental or proprietary function by you within thc
scope of your authority and shall be used during the lease term only by you and
only to perform such function; and, (4) your obligations to remit payments under
this Agreement constitute a current expense and not a debt under applicahle state
law and no provision of this Agreement constitutes a pledge or your tax or general
revenues and any provision that is so construed by a court of competent jurisdiction
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 budgct of such year and arc
included within an unrestricted and unencumbered appropriation currently available
for the lease/purchasc of the Equipment, and that it is your intent to use the
Equipment for the entire lease tenn and to make all payments required under this
Agreement. In the event that (1) through no action initiated by you your legislative
body does not appropriate funds for the continuation of this Agreement for any
fiscal year after thc first fiscal year and has no funds to do so from other sources,
and (2) you have made a reasonable but unsuccessful effort to find a creditworthy
1/18/2006
Page 4 of6
. ,
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 legislative body does not appropl;ate funds for such upcoming fiscal
year, send Xerox written notice stating that your legislative body failed to
appropriate 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 under this Agreement and must certify that the canceled
Equipment is not being replaced by equipment performing similar functions 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 Agreement has been accepted on the basis of your
representation that Xerox may claim any interest paid by you as exempt from
federal income tax under Section ]03(c) of the Code. You agree to comply with the
infunnation reporting requirements of Section l49(e) of the Code. Such compliance
shall include, but not be limited to, the execution of 8038-G or 8038-GC
Infonnation 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 fonn sufficient to comply with the book
entl)' requirements of Section 149(a) of the Code and the regulations prescribed
thereunder from time to time. Should Xerox lose the benefit oftrus exemption as a
result of your failure to comply with or he covered by Section 103(c) or its
regulations, then, subject to the availability of funds and upon demand by Xerox,
you shall pay Xerox an amount 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 Fonn 8038 or 8038-GC.
D. PAYMENT. Your payment is due within thirty (30) days of our invoice date.
ADDITIONAL TERMS: The following additional tenns apply only to the extent
that you have agreed to one or more of the options described below:
25. CONSUMABLE SUPPLIES INCLUDED IN BASE/PRINT CHARGES. If
this option has been selected, Xerox (or a designated sCIVicer) will provide you with
black toner (excluding highlight color toner), black developer, copy Cartridges, and,
if applicable, fuser ("Consumable Supplies") throughout the tenn 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 Xerox~
supplied shipping labels), and that at the end of the tenn of this Agreement either
(a) you will return any unused Consumable Supplies to Xerox (at Xerox's expense
when using Xerox-supplied shipping labels)or (b) destroy them in a manner
pennitted 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 I MODIFICATION OF PRIOR XEROX AGREEMENT. If
this option has been selected, this Agreement will replace or modify a prior
agreement between you and Xerox covering 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 tenns
presentL>d in this modification agreement that conflict with, or are additive to, any of
the tenns in the prior agreement shall take precedence over the tenns in the prior
agreement for the balance of the Agreement. In addition, modifications requiring a
reamortization 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 arc leasing specifically identified products that were selected by you and that
are not sold by Xerox in the nonnal 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 contmct 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 (h) ANY REPRESENTATION OR
WARRANTY REGARDING THE PRODUCTS' SUITABILITY. DESIGN.
CONDITION. DURABILITY, OPERATION, QUALITY OF MATERIALS OR
WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR
APPLICABLE LAW. Xerox assigns to you, to the extent assignable, nny warranty
Xerox Fonn# 5l860t&c (05/2005) 1/1812006
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 covered by Xerox's
obligation to provide Basic Services; (2) to maintain a service agreement for these
products with a service provider acceptable to Xerox throughout this Agreement's
teon; (3) to pay all personal property taxes related to these products; and (4) to
assign to Xerox any rights you have to these products until title passes from Xerox
to you (which, suhject to any software licenses surrounding the acquisition of these
products, shall occur when you obtain title to all Xerox~brand Equipment covered
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 hreach 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. lf this option has been selccted, the cost of
any supplies you have purchased under 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 hecome immediately 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 amount 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 amount 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
infonnation 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 heen selected, the
Maintenance Component 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 providing 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 to Xerox as part of this Agreement ("Trade-In Equipment") and the
following shall apply:
A. TITLE TRANSFER. You warrant that you have the right to transfer title to the
Trade-In Equipmelll and that it has been installed and perfonning its intended
function. Title and risk of loss to the Trade-In Equipment shall pass to Xerox when
Xerox removes it from your premises.
B. CONDlT10N. 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 until removed by Xerox.
C. ACCRUED CHARGES. You agree to pay all accrued charges for the Tmde-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.
35. FIXED PRICE PLAN. If this option has been sdected, Xerox win 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
provide Basic Services during the hours indicated, with the first number
establishing the number of eight-hour shirts covered and the second cstablishing the
days of the week (e.g., 2 x 6 would provide service from 8:00 A.M. to II :59 P.M.,
Monday through Saturday). The cost of this enhanced service coverage will be
Page 5 of6
, "
~ ,
billed separately and, as such, is not included in your Minimum Lease Payment or
Print Charges.
38. ATTACHED ADDENDA. If this option has heen selected, you acknowledge
that one or more specified addenda (as indicated) have been provided to you. These
addenda, which provide additional tenns relevant to the transactions covered
hereunder, arc 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 tenns contained in (a) either
(I) the identified Negotiated Contract for a lease transaction or (2) if there are no
such tenns in the Negotiated Contract, the tenns set forth in this Agreement, and, if
applicable and notwithstanding anything to the contrary set forth in the Negotiated
Contrnct. (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 Contrnct 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 tenus
contained in this Agreement. .
For customer support tools to manage your account online,
visit your Account I\1anagement link @ www.xerox.com
Xerox Form# 51860t&c (05/2005)
111812006
Page 6 of6
]',. ,~.
Approved and Adopted this
CITY OF CARMEL, lNDIANA
by and through its Board of Public
Works and Safety
BY:
Ja s Brainard, Mayor
D te:
embr J
5t 1,60
I 51 .---:-
day of -t:e_brv G '_)
\
li6hJ
Date:
, 200_\0