INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and the
"Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells to
Customer the equipment identified in Appendix A (the "Equipment"), upon the
terms set forth in this agreement.
II. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A (the "Manufacturer"), at
Customer's address set forth below. Customer agrees to have a site adequately
and properly prepared, in accordance with Manufacturer's instructions, to
receive and accept delivery of the Equipment. In no event shall Vendor be
responsible to Customer for any delays in delivery or installation or any
damages to Customer resulting from such delays.
III. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the Equipment,
Customer agrees to pay Vendor and Vendor agrees to accept from Customer, the
purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price,
Customer shall pay all transportation charges and all taxes (including, without
limitation, sales, use, privilege, ad valorem or excise taxes) and customs
duties paid or payable by Vendor, however designated, levied or based on amounts
payable to Vendor under this agreement, but exclusive of federal, state and
local taxes based on Vendor's net income. If additional labor and rigging are
required for installation due to Customer's special site requirements, Customer
will pay those costs, including costs to meet union or local law requirements.
Customer shall not deduct from payments to Vendor any amounts paid or payable to
third parties for transportation charges, customs duties or taxes, however
designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges arising
under this agreement shall be payable by Customer to Vendor in the following
manner
(A) A percentage of the purchase price, as specified in Appendix A,
shall be payable upon execution of this agreement by Customer; the
receipt or deposit of such payment, however, shall not constitute
Vendor's acceptance of this agreement.
(B) The balance of the purchase price, together with any
transportation charges and any taxes and duties theretofore incurred by
Vendor, shall be payable upon delivery of the Equipment to Customer.
(C) Any taxes, duties, or other charges incurred by Vendor following
delivery of the Equipment shall be payable within ten (10) days of
receipt by Customer of Vendor's invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising under
this agreement shall be invoiced and be payable in U.S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1-1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges payable
to Vendor as of the date of delivery have been paid in full, the Equipment and
all instruction manuals therefor shall remain the property of Vendor and, at the
option of Vendor, shall be returned to Vendor at Customer's expense in the event
the purchase price is not paid as hereinabove provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security interest
in the Equipment as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the purchase price and other
charges as specified in Section III above. A copy of this agreement may be filed
in appropriate filing offices at any time after signature by Customer as a
financing statement or Vendor may require and Customer shall execute a separate
financing statement for purposes of perfecting Vendor's security interest
granted pursuant to the provisions of this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of loss
or damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Equipment, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Equipment or any associated equipment.
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that it has the right to
transfer title of the Equipment to Customer. Vendor's sole liability under this
warranty shall be to obtain any title or authorization necessary to transfer
such title to Customer.
7.2 DISCLAIMER. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
7.3 MANUFACTURER'S WARRANTY. Customer expressly understands and agrees
that warranties regarding patents, materials, workmanship or use of the
Equipment (the "Manufacturer's Warranty"), if any, are made exclusively by the
Manufacturer and not by Vendor, and if made, shall be encompassed within a
separate agreement. Customer's exclusive remedy under Manufacturer's Warranty
shall be as provided therein and shall lie exclusively against and be obtainable
only from the Manufacturer, and Customer expressly agrees that it shall have no
claim or cause of action against Vendor in the event the Manufacturer is for any
reason unwilling or unable to perform under the terms of Manufacturer's
Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraph 7.1 of this agreement are as set forth in said paragraph. Vendor's
liability for damages, regardless of the form of action shall not exceed the
purchase price set forth in Appendix A to this agreement and shall arise only if
the remedies set forth in paragraph 7.1 are not fulfilled by Vendor. Customer
further agrees that Vendor will not be liable for any lost profits, or for any
claim or demand against Customer by any other party. IN NO EVENT WILL VENDOR BE
LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising out of the
transactions under this agreement, may be brought by either party more than one
(1) year after the cause of action has accrued, except that an action for
non-payment may be brought within one (1) year after the date of the last
payment.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as hereinafter
defined, by Customer, if the Equipment has theretofore been delivered, Vendor
may recover, together with any incidental damages, any unpaid portion of the
purchase price of the Equipment as specified in Appendix A hereto. If the
Equipment has not been delivered, in which event Vendor may withhold delivery of
such Equipment, or if the Equipment is returned to Vendor upon Vendor's election
pursuant to Section IV, Vendor shall resell the Equipment. Upon such resale,
Vendor shall recover from Customer the difference between the unpaid portion of
the purchase price, as specified in Appendix A, and the resale price, together
with any incidental damages, including expenses of resale, sustained by Vendor
by reason of Customer's breach. If the resale price exceeds the unpaid portion
of the purchase price and Vendor's incidental damages, Vendor shall remit the
excess to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an event of
default is defined as any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Until the purchase price has been paid in full, any attempt by
Customer to assign, sell, mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer
causing or permitting any encumbrance, of any nature whatsoever, to
attach to Customer's interest in the Equipment in favor of any person
or entity other than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or
against Customer; or
(E) Customer's breach of any of the terms of conditions of the
agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference purposes
only and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, intervention of any
governmental authority or acts of war, and each party shall take steps to
minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
9.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account thereof,
the balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit in
the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity, may
be instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER: VENDOR:
FIRST NATIONAL BANK OF CENTRAL CALIFORNIA
- ------------------------------------------ INFORMATION TECHNOLOGY, INC.
Signature: /S/ Philip L. Griffin Signature: /s/ Michael K. Young
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Name: Philip L. Griffin Name: Michael K. Young
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Vice President/
Title: Information Services Title: Vice President
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Address: 307 MAIN STREET Address: 1345 Old Cheney Road
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SALINAS, CA 93901 Lincoln, NE 68512
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Date: March 22, 1995 Date Accepted: 6-29-95
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APPENDIX A
EQUIPMENT AND TERMS
1. MANUFACTURER. The Manufacturer of the Equipment subject to this agreement is:
Unisys Corporation
2. PURCHASE PRICE: The purchase price for the Equipment is $97,269. 0% thereof
shall be payable upon execution of this agreement, the balance upon delivery of
the Equipment.
3. EQUIPMENT. The Equipment subject to this agreement consists of the following:
HARDWARE:
UNIT TOTAL
QTY STYLE DESCRIPTION PRICE PRICE
------------------------------------------------------------------------------
1 X601-ICP HLCN ICP Control $ 6,000 $ 6,000
2 CWD 4661210-DL (10 Units) Diskless 486 66 Mhz 7,727 15,454
System with DOS/Windows
8 CWD 4661201-DL Diskless 486 66 Mhz System 839 6,712
with DOS/Windows
28 2102013460 10" Color SVGA Monitor 649 18,172
2 CWD 4010-PAK (10 Units) Package Accessory Kit: 750 1,500
Keyboard
Mouse
Documentation
8 CWD 4001-PAK Accessory Kit: 75 600
Keyboard
Mouse
Documentation
28 EF 4272 Validation & Receipt Printer 1,100 30,800
5 EF 4600 Multifunction Document Printer 2,725 13,625
28 15-1196-102 EF 4272 Printer Cable 10' 52 1,456
5 3964-7292 FP 10 x P2 Serial Cable 45 225
10 TD 442303 Logitech DEXXA32 Scanner 102 1,020
SOFTWARE:
1 HL 128-HLC HLCN Software 128 User 8,000 8,000
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TOTAL: $103,564
LESS: Discount: (6,296)
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TOTAL with Discount: $97,269