Equipment and programming loan agreement. Agreement Number: _________ Date of Agreement: _________ This is an Equipment and Programming Loan Agreement ("EPL") between Business Machines ("BM") with an address for purposes of this EPL at _________, _________, and _________("Vendor"), with an address at _________. Vendor and BM agree as follows: 1. Loan of Items BM shall loan to Vendor certain computer equipment ("Machines" and "Program Products") as more fully described in the Attachment entitled "Loaned Items" to assist Vendor in the performance of services as specified in the Master Work Agreement, Agreement Number _________("MWA"). When used in this Agreement, the terms "Machines" and "Program Products" shall include any associated product documentation generally provided to end users and any other nonconfidential technical documents and materials that may be provided to Vendor which relate to the Machines or Program Products. Such Machines and Program Products shall collectively be referred to as "Loaned Items." Certain Loaned Items may be or include BM Confidential Information. Vendor's treatment and usage of such BM Confidential Information shall be in accordance with the terms of the MWA. 2. Program Products Program Products are provided to Vendor under the terms of the Agreement for Licensed Programs ("ALP") or the terms of the Program License Agreement ("PLA") as indicated in Attachment. Current copies of the ALP and PLA have been provided to Vendor. 3. Machines The sole responsibility of BM with respect to Machine(s) shall be to use reasonable efforts to provide maintenance service to cause the Machines to operate in accordance with the applicable BM documentation or, at BM's option, to replace the defective product pursuant to Section 4.0, "Changes." Vendor agrees to cooperate with BM in notifying BM of the need for maintenance action and in facilitating BM's maintenance service, including providing reasonable access to the Machines. BM's maintenance service is governed by the applicable terms of the BM Maintenance Agreement. A current copy of such agreement has been provided to Vendor. 4. Changes BM may make substitutions for existing items or may provide additional items to Vendor during the term of this EPL. In such case, such items shall be added to those items listed in the Attachment entitled "Loaned Items" through the execution by the Authorized Representatives of both parties of amendment(s) to this EPL. 5. Loaned Item Installation During normal business hours, Vendor agrees to provide BM with all assistance reasonably necessary to permit BM access to install Machines requiring BM installation assistance. 6. Charges and Costs 6.1. General: Except as otherwise indicated in this Section, each party agrees to bear its own costs and expenses incurred under this EPL. 6.2. Shipping: BM shall pay all shipping charges related to the Loaned Items.
6.3. Rigging: Vendor shall pay all charges associated with rigging and any other activities associated with the movement and placement of such Loaned Items from the delivery dock to their point of use at the Vendor's location. 6.4. Charges: License charges for the Program Products, charges for Machines, and charges for BM maintenance services provided hereunder are waived for development use provided Vendor uses the Program Products only as required to render performance under the Contract Documents. However, Vendor may utilize the Program Products and Machines in operations outside the services provided to BM under the Contract Documents provided that: 6.4.1. The Program Products or Machines to be so utilized are announced and marketed as a BM offering; 6.4.2. Vendor obtains BM's prior written consent; and 6.4.3. Vendor executes the applicable BM license, purchase and maintenance agreements and pays BM's then applicable generally available charges therefor in accordance with such agreement(s). 6.5. Limitation: Vendor shall not use the Loaned Items for purposes outside the services provided under the Contract Documents if such use would adversely impact its performance under the MWA. 7. Case and Return of Loaned Items 7.1. Security: Vendor agrees to provide, at no cost to BM, adequate security to protect BM's assets from theft, loss, damage or misuse. 7.2. Return of Program Products: Unless licensed by Vendor as provided in Section 6.0, "Charges and Costs," Vendor agrees to return, or destroy and certify destruction of, at BM's option, the original and all copies of the Program Products provided under this agreement by BM upon BM's written request or earlier termination or expiration of this EPL. 7.3. Machine Return: Unless purchased by Vendor as provided in Section 6.0, "Charges and Costs," Vendor agrees to return the Machines provided under this agreement by BM upon BM's written request or earlier expiration or termination of this EPL, in the same condition as when delivered to BM, fair wear and tear excepted. Where applicable to facilitate such return, Vendor shall permit BM access to the Loaned Items during normal business hours in order for BM to remove the Machines. 7.4. Care: Vendor agrees to use reasonable care in the use of all Loaned Items. Vendor is responsible for providing an operating environment for the Loaned Items consistent with the BM documentation. 7.5. Inspection: BM reserves the right to inspect the Loaned Items at all reasonable times to audit Vendor's compliance with the terms of this EPL. Vendor shall not move the Loaned Items to another location without the prior written approval of BM. Vendor agrees that the Loaned Items shall be located at an address which will be specified in writing by BM prior to delivery of the Loaned Items. 7.6. Alteration: Vendor agrees not to alter the Loaned Items in any manner without the prior written approval of BM. Furthermore, Vendor shall not purchase, design, or fabricate any additional or replacement items without the prior written approval of BM. 7.7. Malfunction: Vendor agrees to promptly notify the BM Contract Coordinator of any malfunction of the Loaned Items. 8. Term and Termination This EPL shall become effective upon the date first above written and shall continue until (1) termination of this EPL or (2) expiration or termination of the MWA, whichever occurs first. This EPL may be extended provided written
consent is obtained from the BM Contract Coordinator. BM may, at its option, terminate this EPL on 10 days written notice. 9. Ownership Vendor acknowledges that the Loaned Items are and shall remain the property of BM and are loaned to Vendor only for use and performance under the MWA. Vendor shall not mortgage, transfer, pledge, or encumber the Loaned Items in any way. 10. Warranties LOANED ITEMS ARE PROVIDED BY BM ON AN "AS IS" BASIS AND BM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO LOANED ITEMS. THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE EXPRESSLY DISCLAIMED. 11. Insurance BM shall insure the Loaned Items provided hereunder against risk of casualty loss while such Loaned Items are in the possession of Contractor and Vendor shall not be responsible for loss or damage to the Loaned Items caused by fire or other casualty occurrence, except for loss or damage caused by the intentional act or gross negligence of Vendor or Vendor's employees and/or agents. 12. Limitation of Liability 12.1. Damages: In the event of failure of BM to fulfill any of its obligations under this agreement or any defects in the operation of Loaned Items, the exclusive remedy of the Vendor under this EPL shall be to request performance of BM obligations under this agreement and if such performance is not rendered, to terminate the EPL and where appropriate, to bring for direct damages up to the amount of $_____. In no event shall either party be entitled to indirect, incidental or consequential damages, including lost profits, based on any breach or default of this EPL, or any negligence of the other party, even if such party has been advised of the possibility of such potential loss or damage. 12.2. Limitation: The foregoing limitation of liability and remedies shall not apply to prevent BM from enforcing its rights with respect to patents, copyrights, trademarks, or trade names, or its right to return of Machines or return or destruction of Program Products. 13. Conflict In the event of conflict between the terms of this EPL and the applicable BM license, purchase and/or maintenance agreement(s), the terms of this EPL shall control with respect to the Loaned Items. In the event of any inconsistency in the provisions of this EPL and the MWA, the provisions of the MWA shall control. 14. Survival In the event of any termination or expiration of this EPL in whole or in part, the provisions of Sections 7.0, "Care and Return of Loaned Items," 9.0 "Ownership," 12.0, "Limitation of Liability," and, to the extent Vendor has exercised the provisions of Section 6.4 of this Agreement with respect to utilization of Loaned Items in operations outside services provided under the Contract Documents, the terms and conditions of the applicable BM license, purchase and or maintenance agreements (including unpaid payment obligations) shall survive and continue and shall bind the parties and their legal representatives, successors, heirs and assigns. In witness, the parties have caused this EPL to be executed by their respective Authorized Representatives.
_________ Business Machines Corporation ACCEPTED AND AGREED TO: By: _________ Title _________ Date _________ Attachment—Loaned Items Program Products
_________ ACCEPTED AND AGREED TO: By: _________ Title _________ Date _________
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