| 1. |
DEFINITIONS
"Parts" refers to boards, modules, sub-assemblies or spare
parts supported under this Agreement.
"Price List" refers to the applicable Compaq price list or
catalog in effect when Compaq accepts the CUSTOMER's order.
"Service" refers to repair or replacement of Parts supplied
by Compaq under this Agreement.
"Service Agreement" refers to the contract document under
which certain Services are supplied by Compaq. The Service
Agreement incorporates the terms of this Agreement, any
applicable Service Description(s), and other details of the
Service transaction.
"Service Description"and "Software Product Description"
refer respectively to documents which describe the attributes
of specific Services and Software products. |
| 2. |
AVAILABILITY
Parts Exchange Service is available throughout the United States for
the provision of replacement and/or repaired boards, modules,
sub-assemblies, or spare parts (hereinafter "Parts") to customers
who meet Compaq standard order certification and acceptance
criteria. |
| 3. |
TERM
Parts Exchange Service shall be effective: when the Agreement is
signed by both parties; Attachment A and B are completed; and a
signed copy of Agreement with a Parts Exchange Agreement number is
returned to the customer. Service may be terminated by either party
upon thirty (30) days prior written notice. |
| 4. |
ELIGIBLE PARTS |
| 4.1 |
Parts listed in the then current Price List are eligible for
return under Parts Exchange Service. |
| 4.2 |
Parts in need of repair due to improper treatment or use are not
eligible for return. Improper treatment includes, but is not
limited to, lifted burnt etches, or delamination due to non-Compaq
repair or modification; delamination due to excessive heat; or
missing components or chips. Parts which have been defaced or
modified by removing or replacing serial numbers, etch levels,
components or chips, or have been previously scrapped are not
eligible for return. |
| 4.3 |
If parts are returned which are subsequently deemed ineligible
or unrepairable by a Compaq repair source, Compaq may demand
return of any replacement part(s) or bill customer for full US List
Price (USCLP) value of the replacement Part(s), and will return the
ineligible part(s) to customer upon receipt of payment or the
replacement part(s). |
| 4.4 |
Proof of Purchase or ownership of equipment, including serial
numbers may be required. |
| 5. |
RESPONSIBILITIES OF COMPAQ |
| 5.1 |
Compaq will use best efforts to, at its option, repair or
replace eligible parts. Replacement will occur within one (1)
working day of receipt and acceptance at Compaq receiving dock.
Repair will occur within ten (10) working days of receipt and
acceptance at Compaq receiving dock. Shipment to customer will
be F.O.B. Compaq shipping point. |
| 5.2 |
Replaced and/or repaired Parts will be at the current revision
level as specified in the then current price list. Replaced Parts
may be refurbished. In the event newly installed Field or
Engineering Change Orders (FCOs or ECOs) cause an incompatibility
or other interference within the customer's system, customer accepts
responsibility for such incompatibility or interference. |
| 5.3 |
Compaq assumes all risk of loss or damage to Parts in transit
to customer. Return of Parts to customer shall be made by a
second-day delivery carrier chosen by Compaq. |
| 6. |
RESPONSIBILITIES OF CUSTOMER |
| 6.1 |
Customer shall issue Compaq a funding authorization for a
period of at least one (1) year. The authorization to bill will
cover replaced and/or repaired Parts at exchange pricing,
unreturned advanced exchanges at USCLP, unrepairable part
exchanges at USCLP, and any applicable expediting or restocking
charges incurred by customer. |
| 6.2 |
Customer shall properly package and prepay transportation costs
of Parts sent to Compaq. All packages must reference customer's
Parts Exchange Service Agreement number. Packages without the
appropriate Agreement number may be subject to delay in receipt
and acceptance. Customer assumes all risk of loss or damage
to Parts in transit to Compaq. |
| 6.3 |
Customer will return eligible Parts to Compaq within ten (10)
working days of shipment by Compaq, for any advanced exchange or
incur full USCLP invoice. |
| 7. |
CHARGES |
| 7.1 |
Charges for Parts Exchange Service shall be as indicated in the
then current Price List. |
| 7.2 |
Customer has the option of (a) an open account with monthly
invoicing or (b) invoicing per line item. Parts Exchange Service
is subject to customer's maintaining credit authorization
satisfactory to Compaq. Otherwise, terms are cash in advance. |
| 7.3 |
Payment is due thirty (30) days from the date of invoice.
Compaq reserves the right to withhold shipment and service of
any orders if customer is in default of its payment obligations. |
| 7.4 |
Charges are exclusive of and customer is responsible for all
sales, use and like taxes. |
| 8. |
WARRANTY |
| 8.1 |
All replaced/repaired Parts are warranted against defects in
workmanship and material for a period of ninety (90) days after
date of shipment by Compaq. |
| 8.2 |
THE ABOVE WARRANTIES ARE THE EXCLUSIVE WARRANTIES AND NO OTHER
WARRANTY, EXPRESS OR IMPLIED, SHALL APPLY. COMPAQ SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. |
| 9. |
REMEDIES AND LIMITATIONS |
| 9.1 |
Compaq entire liability and customer's remedies are set forth
in this Section 8. These remedies are customer's exclusive remedies
and are in lieu of any other remedy at law or in equity. |
| 9.2 |
In all situations involving performance or nonperformance of
Parts furnished hereunder, customer's remedy is repair or
replacement by Compaq (at Compaq option) of defective parts
if notified by customer of the defect within the warranty period.
(Should a Part be eligible for warranty service, customer must
call the Compaq Parts Source (800)225-5385 for a warranty return
authorization number [RA#]). If Compaq determines that a part is
not defective within the terms of the warranty, customer shall pay
Compaq all costs of handling and transportation. If Compaq fails
to perform its warranty of service responsibilities or if customer
has any other claim related to Parts or Services purchased from
Compaq, customer shall be entitled to recover only direct damages
and only up to the limits set forth in Section 8.3. |
| 9.3 |
COMPAQ LIABILITY TO CUSTOMER FOR ANY CAUSE WHATSOEVER SHALL
BE LIMITED TO THE GREATER OF ONE MILLION DOLLARS ($1,000,000.00)
OR THE PURCHASE PRICE PAID TO COMPAQ FOR THE PARTS OR SERVICES
THAT ARE THE SUBJECT OF CUSTOMER'S CLAIM. THIS LIMITATION WILL
APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT
INCLUDING WITHOUT LIMITATION, NEGLIGENCE. THE FOREGOING LIMITATION
DOES NOT APPLY TO DAMAGES RESULTING FROM PERSONAL INJURY CAUSED
BY COMPAQ NEGLIGENCE. |
| 9.4 |
IN NO EVENT WILL COMPAQ BE LIABLE FOR ANY DAMAGES RESULTING
FROM LOSS OF DATA OR USE, LOST PROFITS OR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES. |
| 9.5 |
Any action against Compaq must be brought within eighteen (18)
months after the cause of action arises. |
| 10. |
CERTIFICATE OF COMPLIANCE
Compaq certifies that workmanship standards or materials used in
the repair/replacement of parts processed under this Agreement
substantially comply with Compaq published specifications. |
| 11. |
GENERAL |
| 11.1 |
The provisions of the Parts Exchange Service Agreement
supersede all previous Parts Exchange Service Agreement provisions. |
| 11.2 |
The provisions of the Agreement are declared to be severable. |
| 11.3 |
The provisions of the Agreement shall solely apply. Additional
provisions will only be applicable if Compaq agrees in writing.
Neither party may assign this Agreement unless mutually agreed. |
| 11.4 |
This Agreement is governed by the laws of the Commonwealth of
Massachusetts or the state of billing address. |
| 11.5 |
Regardless of any disclosure made by customer to Compaq of an
ultimate destination of the repaired/replaced Part, customer will
not export either directly or indirectly, any repaired/replaced
part of equipment incorporating any repaired/replaced part
without first obtaining a license from the United States
Government, as required. |
