EXHIBIT 10.4
CONFIDENTIAL MATERIAL DELETED ("CMD")
INTERNATIONAL SERVICE AGREEMENT
between
WANG LABORATORIES, INC.
and
NEXAR TECHNOLOGIES, INC.
INDEX
Page No.
1. DEFINITIONS....................................................... 1
2. SCHEDULES......................................................... 3
3. RESPONSIBILITIES OF WANG.......................................... 3
4. RESPONSIBILITIES OF OEM........................................... 4
5. TERM AND TERRITORY................................................ 5
6. DEFAULT AND TERMINATION........................................... 5
7. INSURANCE AND LIMITATION.......................................... 6
8. FORCE MAJEURE..................................................... 6
9. NON-DISCLOSURE.................................................... 7
10. AUTHORIZED REPRESENTATIVES AND NOTICES............................ 7
11. STATUTE OF LIMITATIONS............................................ 8
12. NON-SOLICITATION OF EMPLOYEES..................................... 9
13. WARRANTY.......................................................... 9
14. GENERAL........................................................... 9
SCHEDULE A - REMEDIAL MAINTENANCE SERVICE.................................. 11
SCHEDULE B - OEM EQUIPMENT................................................. 14
SCHEDULE C - PRICING & PAYMENT TERMS....................................... 15
SCHEDULE D - DOCUMENTATION AND ESCALATION.................................. 17
SCHEDULE E - WANG DISPATCH PROCEDURES...................................... 00
XXXXXXXX X - XXXXXX XXXXXX SERVICE ADDENDUM................................ 19
SCHEDULE G - CENTRAL/NORTH EUROPE SERVICE ADDENDUM......................... 31
SCHEDULE H - JAPAN/OKINAWA SERVICE ADDENDUM................................ 36
INTERNATIONAL SERVICE AGREEMENT
between
WANG LABORATORIES, INC.
and
NEXAR TECHNOLOGIES, INC.
DATED: September 1, 1996
This Agreement, by and between WANG LABORATORIES, INC. (hereinafter "Wang"), a
Delaware corporation, with its principal place of business at 000 Xxxxxxxxxx
Xxxx Xxxxx, Xxxxxxxxx, XX 00000-0000 and NEXAR TECHNOLOGIES, INC. (hereinafter
"OEM"), a Massachusetts corporation, with its principal office at 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, XX 00000, is made effective as of September 1, 1996 (the
"Effective Date").
WHEREAS, OEM desires that Wang provide certain maintenance service for certain
equipment manufactured by OEM, and
WHEREAS, Wang is willing to perform such services upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, Wang and OEM hereby agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms shall have the following
meanings:
1.1 "DOA" shall mean "dead on arrival" and refers to any
replacement equipment or part(s) which arrives at an End User
location, does not function and requires replacement.
1.2 "CRE" shall mean a Wang Customer Resource Engineer.
1.3 "End User" shall mean a party to whom OEM is obligated with
respect to maintenance of Equipment.
1.4 "Equipment" shall mean the electronic hardware equipment
identified in Schedule B to this Agreement.
1.5 "Escalation" shall mean the provision of increasing technical
expertise by OEM for assistance to Wang Technicians as
described in Schedule D to this Agreement.
1.6 "Hardware Call Support" shall mean screening and diagnosis of
End User problems with Equipment.
1.7 An "Incident" is deemed to have occurred when (a) Wang has
been advised that a single unit of OEM Equipment at an End
User Location has an undetermined problem, (b) a replacement
part has arrived at the Wang Service location, and (c) after a
Wang CRE has arrived and the repair of the reported failed
Equipment has been made. A repair Incident is limited to the
repair of one inoperable serial numbered unit of Equipment.
Should additional Equipment require repair at the time the
Wang CRE is at the End User Location, the End User will be
requested to place another repair request. Multiple unit
repairs resulting from a single repair call are deemed
multiple repair Incidents and shall be billed individually as
separate Repair Incidents.
1.8 "Load or Loading" shall mean the process of manual or
electronic installing of any type of software product that can
be used with the Equipment.
1.9 "Location" shall mean a site where Equipment is installed.
1.10 "Parts" shall mean modules, subassemblies, boards, components
and materials related to the Equipment.
1.11 "PPM" shall mean "prime period of maintenance" which, is 8 AM
to 5 PM, local country time, Monday through Friday of each
week, exclusive of holidays locally observed by Wang.
1.12 "Preventive Maintenance" shall mean regularly scheduled
maintenance designed to minimize failures per the
manufacturer's recommendations.
1.13 "RSL" shall mean those lists of spare parts that make up OEM's
recommended Parts list for the Equipment.
1.14 "Remedial Maintenance Service" shall mean the service required
in order to correct the improper functioning of Equipment
described in Schedule B to this Agreement.
1.15 "Repair" shall mean the repair of defective parts as described
in Schedule E of this Agreement.
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1.16 "Response Time" shall mean the amount of time required for a
Wang CRE to arrive on site at an End User Location measured
from the later of the time End User's or the OEM's call is
received by Wang or availability of the required Part.
1.17 "Service City" shall mean those cities listed in any country
addendum of this Agreement in which Wang maintains a service
office.
1.18 "Service Desk" shall mean the Wang Customer Support Center or
local country service support process.
1.19 Other capitalized terms shall have the meanings set forth in
the text of this Agreement.
2. SCHEDULES
Schedules A through H are incorporated into, and are made part of, this
Agreement. Local country pricing, terms and conditions may be added to
this Agreement by additional Schedules from time to time.
3. RESPONSIBILITIES OF WANG
3.1 Wang shall provide Remedial Maintenance Service as set forth
in Schedule A during the manufacturers warranty term for the
Equipment set forth in Schedule B which is installed at End
User Locations in the designated countries from and after the
Effective Date or any extension thereof.
3.2 Wang shall provide trained maintenance personnel for the
performance of Remedial Maintenance Service.
3.3 Wang shall perform Remedial Maintenance Service in a competent
and workmanlike manner.
3.4 Wang shall receive all requests for Remedial Maintenance
Service directly from End Users. Wang shall (i) screen all
requests for on-site service, (ii) perform fault isolation
routines, and (iii) dispatch its CREs or local country service
provider in response to such request as provided in Schedule
E.
3.5 Remedial Maintenance Service will be considered to be complete
when the Equipment is operating in accordance with the
manufacturers published specifications and/or has successfully
executed industry-standard software diagnostic testing
commonly utilized in connection with such item of Equipment.
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3.6 Wang shall arrive on site for repair of End User's Equipment
based on the specified response time. Such performance is
contingent upon the receipt of the repair Part(s) and the
availability of the End User at the repair location.
3.7 Wang shall not provide telephone assistance or labor for the
Loading of any software application or operating system or
other on site software support unless specifically provided
for in this Agreement.
3.8 Any service requested by the OEM which is out of the scope of
this Agreement shall be performed at the sole discretion of
Wang and at the then current local country Wang hourly rates
and any applicable minimum charges.
4. RESPONSIBILITIES OF OEM
4.1 OEM shall pay Wang for Remedial Maintenance Service pursuant
to the payment terms defined in Schedule C of this Agreement.
4.2 OEM shall provide to Wang an Escalation Procedure and/or
Documentation as defined in Schedule D to this Agreement.
4.3 OEM shall provide to Wang, at no charge, any special
diagnostics, tools and/or test equipment required to perform
Remedial Maintenance Service. Such items will be returned to
OEM upon termination of this Agreement, in good operating
condition, less any reasonable wear and tear.
4.4 OEM shall provide such RSLs, Parts and Repair as defined in
each country addendum to this Agreement.
4.5 OEM shall provide and staff a U. S. technical support "help
desk" for use by Wang Customer Support Center personnel.
4.6 OEM hereby grants to Wang the right of first refusal to have
included under this Agreement such other new equipment as may
be manufactured and/or sold by OEM. Notice of the right to
exercise such option shall be given to Wang by OEM promptly,
and Wang shall inform OEM as to its acceptance or refusal, or
its request such additional information as h may require,
within forty-five (45) days of receipt of such notice.
4.7 OEM shall be charged the "reasonable and customary" cost of
mileage or commercial land and air travel when it is required
for the performance of Remedial Maintenance Service beyond
83km (50 miles) of a Wang local country Service City.
Commercial travel includes, but is not limited to, such items
as airfare, ferry and rental vehicles. Wang and OEM shall
mutually agree to such reasonable and customary travel cost in
each instance prior to incurring the cost.
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Locations which typically require additional travel cost
include, without limitation, Xxxxx Xxxxxx; Havana, Cuba,
Guantanamo Bay, Cuba; Azores; Herakliou, Crete; Adana, Turkey;
and Greenland.
4.8 OEM will be charged the actual charges for reasonable lodging
and meals, when, if in the best interest of Wang and OEM, it
is determined that a Wang CRE remain overnight at or near the
End User Location.
4.9 OEM shall be charged the actual cost of renting or leasing any
special test equipment when required to isolate a problem
property.
5. TERM AND TERRITORY
5.1 This Agreement shall be effective as of the Effective Date.
5.2 Unless otherwise terminated as provided herein, this Agreement
shall have an initial term of thirty-six (36) months ("Initial
Term") and shall continue thereafter from year to year unless
terminated in writing by either party.
5.3 Either party shall have the right to terminate this Agreement
at the end of the Initial Term or at the end of any extended
term upon not less than ninety (90) days prior written notice
to the other party.
5.4 OEM hereby appoints Wang as its exclusive authorized service
organization for Remedial Maintenance Services for the
equipment set forth in Schedule B. This appointment, however,
shall not apply, nor is it intended to prevent, those
authorized dealers and "value-added resellers" of OEM from
servicing equipment units sold b them to their respective end
user customers. OEM shall provide Wang with a listing of such
dealers and value added resellers who are providing services
similar to those specified in this Agreement, and shall update
such list on a regular basis.
5.5 The services to be provided by Wang hereunder shall be
provided in countries where Wang has local CREs or designated
service providers. The services may be performed by Xxxx, xx
affiliate of Wang, or Wang designated service provider.
6. DEFAULT AND TERMINATION
6.1 If either party defaults in performance of any material
obligation under this Agreement, and such default is not cured
within sixty (60) days after receipt of written notice from
the non-defaulting party, the non-defaulting party shall have
the right to terminate this Agreement effective after the
expiration of such sixty (60) days.
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6.2 In addition, if OEM fails to pay any moneys within forty-five
(45) days of written notice from Wang that such moneys are
due, OEM will pay upon demand all costs, including attorney's
fees, expended in collecting overdue charges, as well as
interest on all unpaid charges at the rate of 1.5% per month,
and Wang may suspend its performance under this Agreement
until all moneys owed are paid in full.
6.3 Termination of this Agreement shall not affect any rights
existing as of the effective date of termination.
6.4 Except as provided in Section 7.2, the rights and remedies
provided in this Agreement are cumulative and in addition to
any other rights or remedies available at law or in equity.
7. INSURANCE AND LIMITATION
7.1 OEM shall, at its sole expense, maintain such insurance as is
reasonably necessary to protect itself and Wang against any
and all product liability claims with respect to Equipment.
Upon Wang's request, OEM shall provide Wang with a certificate
of insurance evidencing the existence of such insurance and
naming Wang as a loss payee in the event of loss by Wang. OEM
shall indemnify and save Wang harmless from any and all
liabilities, costs and expenses (including attorneys' fees and
costs) with respect to any claim of an End User or third party
relating to said product liability claims.
7.2 EACH PARTY SHALL ONLY BE LIABLE FOR DIRECT DAMAGES FOR ANY
BREACH OF THIS AGREEMENT AND IN NO EVENT SHALL EITHER PARTY BE
LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE FOR
ANY RELIANCE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE OR DATA EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE. THE PARTIES ACKNOWLEDGE THAT THE CHARGES FOR THE
SERVICES PROVIDED HEREUNDER HAVE BEEN ESTABLISHED IN
CONTEMPLATION OF THE FOREGOING ALLOCATION OF RISKS.
8. FORCE MAJEURE
Neither party shall be liable for any delay in performance, or failure
to perform, under this Agreement caused by shortages of materials, acts
of God, fire, flood, war, embargo, labor trouble, riots and laws,
rules, regulations and orders of any governmental authority or any
other similar cause beyond the control of the party affected at the
time such cause arises. If any delay or inability to perform continues
for more than sixty (60) days, either party shall have the right to
terminate this Agreement upon written notice
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to the other party, or to suspend its obligations hereunder until such
time as such delay or inability to perform is corrected.
9. NON-DISCLOSURE
9.1 Wang and OEM agree to maintain in confidence and not, without
the written permission of the disclosing party, to disclose,
reproduce or copy any information, software, materials, or
documents received from the other party that are marked
confidential or proprietary or, in the Case of information
disclosed orally, orally disclosed information that is
identified as confidential at the time of its disclosure and
identified to the receiving party as confidential information
in a writing that describes the confidential information with
reasonable specificity within five days of its oral
disclosure. The obligations under this Section shall survive
the expiration or termination of this Agreement for whatever
reason, and shall be binding on OEM's successors and assigns.
9.2 All confidential or proprietary information provided by one
party to the other pursuant to this Agreement is provided
solely for the receiving party's use in performing its
obligations hereunder and shall not be used or made available
for any other purpose.
9.3 The obligations of this Section 9 shall not apply to
information that is: (a) already known to the receiving party
at the time of its disclosure; (b) becomes publicly available
without breach of this Agreement; (c) independently developed
by the receiving party outside the scope of this Agreement; or
(d) received from a third party without obligation of
confidentiality.
9.4 OEM acknowledges that Wang's business includes the design and
development of products which may be similar to the Equipment
and, notwithstanding the foregoing, nothing in this Agreement
shall preclude or in any way impair the conduct of such
business by Wang.
10. AUTHORIZED REPRESENTATIVES AND NOTICES
10.1 Each party shall designate one representative who shall be
authorized to take any and all action and/or grant any
approvals required in the course of performance of this
Agreement. Such representative shall be fully authorized to
act for and bind such party, including the approval of
amendments to this Agreement. Until written notice to the
contrary is provided, the authorized representatives of the
parties are as follows:
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for Wang: for OEM:
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxx
Director, Services Marketing Vice President-Finance & Admin.
Wang Laboratories, Inc. Nexar Technologies, Inc.
000 Xxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000 Xxxxxxxxxxx, XX 00000
10.2 Any notice or other communication required or permitted under
this Agreement shall be in writing and shall be delivered in
person or sent by certified mail, return receipt requested,
addressed as set forth below:
In the case of Wang: with a copy to:
Wang Laboratories, Inc. Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx Attention: Law Department
In the case of OEM: with a copy to:
Nexar Technologies, Inc. Nexar Technologies
000 Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx Attention: Law Department
10.3 Either party may change the name or address to which notices
or other communications are to be sent by giving written
notice of such change to the other party. Mailed notice shall
be deemed given when received as indicated by the return
receipt, property addressed and first class postage paid.
10.4 In addition to the authorized representatives identified in
this Section 10, either party may nominate authorized
representatives in each of the local countries where Wang
service is performed pursuant to this Agreement.
11. STATUTE OF LIMITATIONS
No action, whether in contract, tort, or otherwise, arising out of the
performance of Remedial Maintenance Service or other services under
this Agreement, may be brought by either party more than two (2) years
after the cause of action arises, except for an action by Wang to
collect payments due hereunder, which may be brought within two (2)
years of the time the last payment was due. or an action to collect
taxes.
8
12. NON-SOLICITATION OF EMPLOYEES
During the period of time extending to the later of one year after the
expiration of the Initial Term, or of any extension thereof, neither
party shall, without the prior written approval of the other party,
directly solicit for hire, hire, or enter into a consulting
relationship with any employee of such other party directly connected
with performance under this Agreement.
13. WARRANTY
Wang warrants to OEM that service under this Agreement will be
performed in a good and workmanlike manner. If any failure to meet the
foregoing warranty appears within ninety (90) days from the date
service is furnished, Wang will re-perform the service without
additional charge to OEM.
The preceding paragraph sets forth the exclusive remedy for claims
based on a failure of or defect in service, whether such claim is based
on contract, warranty, tort (including negligence), strict liability,
or otherwise, and however instituted, and upon expiration of the
warranty period all such liability will terminate. The foregoing
warranty is exclusive and in lieu of all other warranties, whether
written, oral, implied or statutory. NO IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WILL APPLY.
14. GENERAL
14.1 Neither this Agreement nor any rights granted hereunder may be
assigned by either party without the prior written consent of
the other party, except to an acquirer of substantially all
the assets of the business with which this Agreement is
associated. Any such attempted assignment shall be void.
14.2 The terms and conditions of this Agreement may be waived,
modified, or supplemented only in writing by duly authorized
representatives of the parties.
14.3 No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver or
preclude further exercise thereof.
14.4 Section headings are for convenience of reference only.
14.5 If any part of this Agreement shall be adjudged by any court
of competent jurisdiction to be invalid, such judgment will
not affect or nullify the remainder of this Agreement, but the
effect thereof will be confined to the part immediately
involved in the controversy adjudged.
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14.6 This Agreement shall be deemed to have been made in, and shall
be construed pursuant to the laws of, the Commonwealth of
Massachusetts, in the United States Of America.
14.7 BOTH PARTIES ACKNOWLEDGE HAVING READ THIS AGREEMENT AND AGREE
TO BE BOUND BY ITS TERMS. THIS AGREEMENT IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES
AND SUPERSEDES AND CANCELS ALL PREVIOUS AND CONTEMPORANEOUS
WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
Effective Date.
WANG LABORATORIES, INC. NEXAR TECHNOLOGIES, INC.
By: By: Xxxxxxx X. Xxxxxxxx
-------------------------- -----------------------------------
(Printed Name) (Printed Name)
Title: Title: /s/ Xxxxxxx X. Xxxxxxxx Exec. V.P.
-------------------------- -----------------------------------
Date: Date: 9/l7/96
-------------------------- -----------------------------------
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SCHEDULE A
REMEDIAL MAINTENANCE SERVICE
1. REMEDIAL MAINTENANCE SERVICE
Wang shall provide Remedial Maintenance Service with respect to
Equipment at End User Locations within 83km (50 miles) of a local
country Wang Service City in those countries and at the prices set
forth in Schedule X. Xxxx shall endeavor to restore the Equipment to
good working order. Remedial Maintenance Service shall be deemed
complete with respect to an item of Equipment when such item of
Equipment is operating in accordance with the manufacturers published
specifications and/or has successfully executed industry-standard
diagnostic testing commonly utilized in connection with such Rem of
Equipment. When Remedial Maintenance Service is complete, Wang's CRE
will close the call.
2. EXCLUSIONS TO REMEDIAL MAINTENANCE SERVICE
The following work is not included in Remedial Maintenance Service.
Wang shall have no obligation to provide:
(a) Electrical work external to Equipment;
(b) Supplies or accessories, painting or refinishing Equipment;
(c) Service of Equipment which, because of a safety hazard,
exposes Wang personnel to a risk of injury;
(d) Equipment determined by Wang to be unserviceable;
(e) Restoration of data;
(f) Repair of damage or loss resulting from accident,
transportation, neglect, misuse or abuse, operator error,
failure of electrical power or air conditioning or humidity
control, or use for which Equipment was not designed;
(g) Service which is impractical for Wang to render because of, or
which is required because of, attachment, addition or
connection of the Equipment to another machine or device;
(h) Service when no problem is found;
(i) Service to any products other than those listed in Schedule B.
11
3. TIME AND MATERIAL SERVICE
The following work is not included in Remedial Maintenance Service.
Wang shall endeavor to provide these services, subject to availability
of resources, at Wang's local country Time and Material hourly service
rates in effect at the time of the service request.
(a) Remedial Maintenance Service beyond 83km (50 miles) of a Wang
Service City;
(b) Preventive maintenance;
(c) Making specification or field engineering changes, performing
services connected with relocation of Equipment, or adding or
moving accessories, attachments or other devices
(d) Software programming, software program maintenance or Loading.
(e) Service required as a result of work on Equipment by parties
other than Wang personnel;
(f) Service in connection with the installation, discontinuance or
removal of Equipment;
(g) Time and travel expense incurred to obtain Parts as a result
of OEM's failure to provide Wang with Parts as required
herein;
(h) Service when in connection with user-replaceable units;
4. ENGINEERING, FEATURE AND SAFETY CHANGES
Engineering changes, feature changes, or safety changes for the
Equipment shall be installed by OEM. However, if OEM requests, Wang
shall install such changes on a "Time and Materials" Service basis, and
OEM shall provide all components, parts and instruction packages
necessary for Wang to perform such work.
5. MAINTENANCE OF RELOCATED EQUIPMENT
If Equipment is to be relocated within a country, Wang shall continue
to maintain such Equipment at the new Location within that country,
provided the new Location is within 83km (50 miles) of a Wang Service
City. If such Equipment is not installed by Wang at the new Location,
Wang shall have the right to conduct an inspection after installation
of the Equipment at the new Location to determine if the same is
acceptable for performance of Remedial Maintenance Service.
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If, in the opinion of Wang after inspection, Equipment which has been
relocated by persons other than Wang personnel does not qualify for
Remedial Maintenance Service because of damage from any cause
including, without limitation, improper installation, Wang shall not be
required to provide Remedial Maintenance Service for such Equipment. If
Wang is requested by OEM to perform such repairs necessary to re-
qualify such Equipment for Remedial Maintenance Service, OEM shall pay
Wang the cost of such repairs. Charges for such repairs shall be Wang's
then current Time and Material Service charges.
6. NOTIFICATION OF SHIPMENT TO WANG
On a monthly basis, OEM will provide to Wang via a diskette or by some
other electronic means, a text file listing, by serial and model number
and date shipped, all of the Equipment shipped to End Users in the
respective local countries for which warranty Remedial Maintenance
Service is to be provided hereunder.
7. ADDITIONAL REMEDIAL MAINTENANCE SERVICE TERMS
(a) Wang will provide Remedial Maintenance Service only to End
Users whom Wang reasonably determines to be authorized to
receive such services using the verification procedure
provided by OEM.
(b) Wang will provide Remedial Maintenance Service only with
respect to Equipment.
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SCHEDULE B
OEM EQUIPMENT
The Equipment subject to this Agreement is:
Description
-----------
NEXAR Desktop PC
All future products of the same class released by OEM shall be added to the
foregoing list.
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SCHEDULE C
PRICING & PAYMENT TERMS
1. PRICING
The prices payable by OEM for Next Business Day ("NBD") Remedial
Maintenance Service to be delivered pursuant to this Agreement are as
set forth in each country addendum.
2. PAYMENT TERMS
2.1 Wang shall invoice OEM monthly in the U.S. for warranty
service based upon shipments of Equipment during the month.
2.2 Invoices are due and payable in U.S. Dollars 30 days from date
of invoice.
2.3 In addition to the local country service charge, Wang shall
add a 15% administration charge to all invoices for services
performed outside the U.S. Local country service charges are
subject to annual adjustment should currency exchange rates
fluctuate more than 10% per year.
2.4 All prices for Remedial Maintenance Service are calculated
based on a Wang in country Service City within 83km of End
User Locations. Locations beyond 83km (50 miles) are subject
to local country travel charge adders, where applicable.
2.5 Custom duties and shipping charges are the responsibility of
OEM. These include any related fees Wang or its authorized
Distributors incur when taking delivery of OEM supplied Parts.
2.6 In the event Wang removes a Distributor or ceases providing
Remedial Maintenance Service in a local country, Wang will
provide OEM 30 days prior written notice. In such event, Wang
shall provide OEM an estimate of the cost to support End Users
from the nearest practical location.
2.7 For each Tier A country (as identified in schedules G1 and H1)
outside the U.S. where Wang provides Remedial Maintenance
Service for Equipment, OEM shall pay Wang a one time set up
fee of [CMD].
2.8 For each Tier B country (as identified in schedules G1 and H1)
outside the U.S. where Wang provides Remedial Maintenance
Service for Equipment, OEM shall pay Wang a one time set up
fee of [CMD].
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2.9 For each Tier C country (as identified in schedules G1 and H1)
outside the U.S. where Wang provides Remedial Maintenance
Service for Equipment, OEM shall pay Wang a one time set up
fee of [CMD].
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SCHEDULE D
DOCUMENTATION AND ESCALATION
1. Documentation
(a) OEM shall provide Wang one complete set of documentation and
diagnostics for each OEM product or product family identified
in Schedule B at no charge to Wang and xxxxx Xxxx the right to
copy and distribute these materials to its employees and
subcontractors solely for use in fulfilling obligations under
this Agreement.
(b) As soon as practical and from time to time, OEM shall provide
Wang with one set of all changes and updates to documentation
for each current OEM product. For each future OEM product, OEM
shall furnish Wang with one complete set of documentation as
promptly after completion of preparation of such documentation
as possible.
(c) All changes and updates to documentation and diagnostics for
each current OEM product and complete sets of documentation
for OEM future products shall be provided to Wang at no
charge. OEM hereby grants Wang the right to copy and
distribute such material to its employees and subcontractors
solely for use in fulfilling obligations under this Agreement.
2. Escalation Path
(a) OEM shall provide Wang a telephone number for the purpose of
contacting OEM's technical support group to refer to End User
problems and issues that are outside the scope of this
Agreement and to obtain technical assistance in the resolution
of End User problems.
(b) OEM shall provide this service, at the least, Monday through
Friday each week, 8:00 A.M. to 5:00 P.M. U.S. Eastern Time.
(c) When the End User's problem cannot be resolved over the phone
or through the application of Remedial Maintenance Service by
Wang, then OEM may opt to provide its technical support on
site. Such support will be provided at no cost to Wang.
(d) All OEM technical support service shall be provided to Wang at
no cost.
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SCHEDULE E
WANG DISPATCH PROCEDURES
(a) Wang maintains a telephone support "service desk" and will perform
"first call screening" of End Users who are experiencing problems with
their Equipment.
(b) At the time of the call to Wang, the End User will be asked to provide
the model and serial number of the failing Equipment, the name of the
End User, account contact, the End User's address and telephone number.
(c) If the Wang CRE is unable to resolve the problem with the End User, the
local Wang Service Desk will contact the Wang Customer Support Center
for assistance.
(d) When the Wang CRE has completed the call, the CRE will note in Wang's
records that the call has been "closed out. The entry will include the
CRE's on-site arrival and departure time.
00
XXXXXXXX X
XXXXXX XXXXXX SERVICE ADDENDUM
Schedule No. Description
------------ -----------
F-1 Wang U.S. Service Cities
F-2 U.S. Price Schedule and Payment Terms
F-3 Parts
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SCHEDULE F-1
WANG U.S. SERVICE CITIES
Sorted by State Sorted by City
--------------- --------------
City State City State
---- ----- ---- -----
Anchorage AK Akron OH
Birmingham AL Albany NY
Little Rock AR Albuquerque NM
Phoenix AZ Allentown PA
Tucson AZ Anchorage AK
Fresno CA Atlanta GA
Oakland CA Austin TX
Sacramento CA Baltimore MD
San Francisco CA Birmingham AL
Santa Clara CA Bloomfield NJ
San Jose CA Bloominton IN
Los Angeles CA Boise ID
Orange County CA Boston MA
San Diego CA Brooklyn NY
Denver CO Buffalo NY
Hartford CT Burlington MA
New Haven CT Charleston SC
Stamford CT Charlotte NC
Springfield CT Chattanooga TN
Washington DC Chicago IL
Hollywood FL Cincinnati OH
Clearwater FL Clearwater FL
Orlando FL Cleveland OH
Tampa FL Columbia SC
Jacksonville FL Columbus OH
Miami FL Dallas TX
Atlanta GA Dayton OH
Hawaii HI Delaware MD
Honolulu HI Denver CO
Maui HI Des Moines IA
Des Moines IA Detroit MI
Boise ID E. Rutherford NJ
Chicago IL Edison NJ
20
Sorted by State Sorted by City
--------------- --------------
City State City State
---- ----- ---- -----
Springfield IL El Paso TX
Bloomington IN Eugene OR
Fort Xxxxx IN Fort Xxxxx IN
Indianapolis IN Fort Worth TX
South Bend IN Fresno CA
Kansas City KS Grand Rapids MI
Wichita KS Greensboro NC
Louisville KY Harrisburg PA
New Orleans LA Hartford CT
Boston MA Hawaii HI
Burlington MA Hollywood FL
Worcester MA Honolulu HI
Delaware MD Houston TX
Baltimore MD Indianapolis IN
Rockville MD Jacksonville FL
Portland ME Kansas City KS
Detroit MI Knoxville TN
Grand Rapids MI Lansing MI
Lansing MI Las Vegas NV
Minneapolis MN Little Rock AR
St. Xxxx MN Los Angeles CA
St. Louis MO Louisville KY
Charlotte NC Madison WI
Greensboro NC Manchester NH
Raleigh NC Maui HI
Omaha NE Memphis TN
Manchester NH Miami FL
Bloomfield NJ Milwaukee WI
Edison NJ Minneapolis MN
Morristown NJ Morristown NJ
Toms River NJ Mt. Laurel NJ
E. Rutherford NJ Nashville TN
Mt. Laurel NJ New Haven CT
Princeton NJ New Orleans LA
Albuquerque NM New York City NY
Las Vegas NV Newport News VA
Albany NY Oakland CA
21
Sorted by State Sorted by City
--------------- --------------
City State City State
---- ----- ---- -----
Buffalo NY Oklahoma City OK
Rochester NY Omaha NE
Syracuse NY Orange County CA
New York City NY Orlando FL
Syossett NY Philadelphia PA
Brooklyn NY Phoenix AZ
Akron OH Pittsburgh PA
Cincinnati OH Portland ME
Cleveland OH Portland OR
Columbus OH Princeton NJ
Dayton OH Providence RI
Oklahoma City OK Raleigh NC
Tulsa OK Richmond VA
Portland OR Rochester NY
Eugene OR Rockville MD
Salem OR Rosslyn VA
Allentown PA Sacramento CA
Harrisburg PA Salem OR
Philadelphia PA Salt Lake City UT
Valley Forge PA San Antonio TX
Pittsburgh PA San Diego CA
Providence RI San Francisco CA
Charleston SC San Jose CA
Columbia SC Santa Clara CA
Memphis TN Seattle WA
Chattanooga TN South Bend IN
Knoxville TN Spokane VA
Nashville TN Springfield CT
Austin TX Springfield IL
Dallas TX St. Louis MO
Fort Worth TX St. Xxxx MN
Houston TX Stamford CT
El Paso TX Syossett NY
San Antonio TX Syracuse NY
Salt Lake City UT Tacoma WA
Rosslyn VA Tampa FL
Newport News VA Toms River NJ
22
Sorted by State Sorted by City
--------------- --------------
City State City State
---- ----- ---- -----
Richmond VA Tucson AZ
Spokane VA Tulsa OK
Seattle WA Valley Forge PA
Tacoma WA Washington DC
Madison WI Wichita KS
Milwaukee WI Worcester MA
23
SCHEDULE F-2
U.S. PRICE SCHEDULE AND PAYMENT TERMS
1. U.S. Price Schedule for Next Business Day On-Site Service
Year One Pricing - Labor Only
-----------------------------
Fails/ % Units Warranty
Unit Failed Charge/Unit
---- ------ -----------
0.025 2.50% [$CMD]
0.030 3.00% [$CMD]
0.040 4.00% [$CMD]
0.050 5.00% [$CMD]
0.060 6.00% [$CMD]
0.070 7.00% [$CMD]
0.080 8.00% [$CMD]
0.090 9.00% [$CMD]
0.100 10.00% [$CMD]
0.200 20.00% [$CMD]
0.300 30.00% [$CMD]
0.400 40.00% [$CMD]
0.500 50.00% [$CMD]
0.600 60.00% [$CMD]
0.700 70.00% [$CMD]
0.800 80.00% [$CMD]
0.900 90.00% [$CMD]
1.000 100.00% [$CMD]
For each month during the term of this Agreement, OEM shall pay Wang a fee for
the performance by Wang of Remedial Maintenance Service in the U.S. (the
"Monthly Fee "). The amount of each Monthly Fee, and the date on which same is
due, shall be determined in accordance with the provisions of this Schedule, as
follows:
1. Each Monthly Fee shall be the greater of (a) [$CMD] or (b) the amount
determined by operation of the formula described below as the "Failure
Rate Formula") or (c) a total annual fee agreed upon divided by 12
months.
(a) The payment for the 1st quarter of the initial term will be as
shown in 1.(d).
24
(b) The 1st quarter payments are based on a [$CMD] per unit
shipped or a [CMD%] failure rate as shown in Section I of the
Price Schedule:
(c) This payment schedule is applicable only to the 1st year of
this agreement.
(d) The following table indicates the required payments:
Month 1 Month 2 Month 3
------- ------- -------
[$CMD] [$CMD] [$CMD]
2. For purposes of the Failure Rate Formula, the following terms shall be
applicable:
(a) An "Equipment Failure" is deemed to have occurred when (i) the
End User advises Wang that a unit of Equipment at the End User
Location requires Remedial Maintenance Service, and (ii) Wang
has dispatched a CRE to perform such Remedial Maintenance
Service.
(b) The "Base Failure Rate" shall be the assumed annual rate(s) of
failure of the Equipment which OEM has elected to have apply
to the Equipment. The per- unit fee applicable to the Base
Failure Rate is set forth in the U.S. Price Schedule above
(the "Base Failure Rate Fee"). The Price Schedule also
contains the per-unit fees applicable to various failure rates
other than the Base Failure Rate.
(c) "Covered Units" shall be the number of pieces of Equipment for
which Wang is required to perform Remedial Maintenance Service
in each calendar month during the term hereof. The number of
Covered Units subject to Remedial Maintenance Service in any
given calendar month shall be deemed to be the total number of
pieces of Equipment shipped by OEM to End Users on or before
the expiration of the prior month.
(d) The "Actual Failure Rate" shall be the percentage determined
by dividing (i) the product of (x) number of Equipment
Failures occurring in a calendar month times (y) twelve (12)
by (ii) the number of Covered Units deemed to be applicable to
such calendar month.
25
(e) The "Average Actual Failure Rate" shall be the average of the
Actual Failure Rates during any period of three (3)
consecutive months during the term of the Agreement.
3. OEM shall advise Wang in writing of the number of units of Equipment
which OEM has shipped to End Users as of each of the fifteenth day and
the last day of each month in the term. Such written reports shall be
delivered to Wang on or before the twentieth day of the month, and the
fifth day of the following month, respectively. The total shipment of
units of Equipment in any month shall be the total of the units of
Equipment shown in the two reports (an "Actual Monthly Shipment").
4. Wang shall provide to OEM, on or about the tenth day of each month, an
invoice for the Monthly Fee applicable to that month, which shall be
due and payable within five (5) business days of the date of receipt
thereof by OEM. For the first month of the term, the Monthly Fee shall
be the product of (a) the Base Failure Rate times (b) the estimated
Actual Monthly Shipment for the first month, as reasonably agreed upon
by Wang and OEM in writing, plus any applicable Zone Travel Charges.
For the second and third months of the term, such invoice shall be the
product of (a) the Base Failure Rate times (b) the Actual Monthly
Shipment for the first and second months, respectively, plus any
applicable Zone Travel Charges.
5. Promptly after the expiration of the third (3rd) month of the term,
Wang shall determine the Average Actual Failure Rate applicable to the
first three (3) months of the term (the "Ql Failure Rate"). The Monthly
Fees payable in the fourth, fifth and sixth months of the term shall be
the product of the Q1 Failure Rate times the Actual Monthly Shipments
in the third, fourth and fifth months, respectively, plus any
applicable Zone Travel Charges. Promptly after the expiration of the
sixth (6th) month of the term, Wang shall determine the Average Actual
Failure Rate applicable to the fourth, fifth and sixth months of the
term (the "Q2 Failure Rate"). The Monthly Fees payable in the seventh,
eighth and ninth months of the term shall be the product of the Q2
Failure Rate times the Actual Monthly Shipments for the sixth, seventh
and eighth months, respectively, plus any applicable Zone Travel
Charges. The Monthly Fees payable for each three-month period in the
balance of the term shall be similarly determined, using the Average
Actual Failure Rate for the prior quarter in each case.
6. Unless otherwise agreed in writing by Wang and OEM, each unit of
Equipment shall be included in the total of the Covered Units only for
a period of twelve (12) months. After the expiration of twelve (12)
months after the month in which such unit of Equipment was shipped by
OEM, Wang shall no longer be obligated to provide
26
Remedial Maintenance Service with respect to such unit of Equipment,
and the total of the Covered Units shall be appropriately reduced.
7. In addition, each Monthly Fee is subject to adjustment to account for
the difference, if any between (a) the Monthly Fee (less Zone Travel
Charges) paid by OEM with respect to such month, and (b) the amount
determined by multiplying the fee applicable to the Actual Failure Rate
for such month times the Actual Monthly Shipment for such month. The
amount of such difference shall be added to, or subtracted from, as the
case may be, the invoice for the next Monthly Fee after such
determination has been made. In no event shall any such adjustment
cause any Monthly Fee to be less than the [$CMD] minimum or the amount
shown in paragraph 1 of this Schedule.
8. Effective not sooner than one (1) year from the Effective Date and upon
not less than ninety (90) days prior written notice to OEM, Wang may
increase the per-unit fees set forth in the U.S. Price Schedule,
provided, however, that such increase shall not exceed ten percent
(10%) during any twelve (12) month period.
9. In the event that Wang responds to an Equipment Failure, and OEM has
not caused the appropriate Part or Parts to be available to Wang in
connection with such Failure as provided herein, OEM shall pay Wang at
the then current labor rates with a two (2) hour minimum, for each
return visit.
II. Extended Warranty Pricing
(Years Two, Three & Four) Pricing - Parts &- Labor
--------------------------------------------------
Parts & Labor = [$CMD]
Within six (6) months of the date of this Agreement, the monthly minimum billing
for Extended Warranty Service shall be [$CMD] ("Minimum Monthly Billing"). If
the Minimum Monthly Billing falls below [$CMD] during any subsequent period of
three (3) consecutive months, Wang may withdraw the Extended Warranty Service
option for new End Users.
III. Zone Travel Charges
Zone Travel Charges payable for Remedial Maintenance Service are
determined based on the distance from the nearest Wang U.S. Service
City to End User's Location. Mileage is determined on a straight line
basis utilizing Xxxx XxXxxxx'x Road Atlas for the United States and
from the center of the Wang Service City.
27
Zone I 00 - 50 miles [$CMD]
Xxxx 0 00 - 00 miles [$CMD]
Zone 3 76 - 100 miles [$CMD]
Zone 4 101 - 199 miles [CMD]
[CMD]
200 - up *
Wang shall not be obligated to perform Remedial Maintenance Service at
an End User's Location located beyond Zone 4 unless it has given its
prior written approval in each case. Such travel is normally
impractical by ground transport within a 9 hour PPM.
Wang reserves the right to xxxx Travel Zone Charges on a separate
invoice.
IV. Response Time Terms
Wang will provide Standard Next Business Day Remedial Maintenance
Service (i.e., with an eight hour Response Time), provided that the End
User Location is within 50 miles of a Wang Service City, and unless
otherwise requested by OEM. Wang will provide Remedial Maintenance
Service at Locations beyond 50 miles from a Wang Service City with a
standard, or designated in writing, Response Time plus four (4) hours
for each fifty (50) mile increment beyond fifty (50) miles from a Wang
Service City. Wang will also use reasonable efforts to contact the End
User by telephone within two hours of receipt of a call to confirm
receipt of the call and assignment of CRE. Wang's performance shall be
based on items within its control and shall not include items such as,
but not limited to, End User delay and End Users located beyond fifty
miles of a Wang Service City.
28
SCHEDULE F-3
Parts
1. OEM shall provide the following Parts services to Wang in the U.S.:
1.1 Furnish, upon verbal notice from Wang, for Next Business Day
delivery, a replacement Part necessary to perform Remedial
Maintenance Service;
1.2 Bear the expenses of shipment of and risk of loss to Parts
from OEM location to Wang's storage locations, and stamp,
etch, tag or label each Part for the purpose of proper
identification when received by Wang;
1.3 Supply Wang with one copy of a packing slip, or other
comparable document, for each delivery of Parts to Wang, and
return addressed, self-adhesive shipping label;
1.4 Replenish Parts within 15 days of request by Wang (including
DOA parts) and take all necessary action to maintain the
availability of sufficient Parts such that Wang may satisfy
its commitments including, without limitation, extended
warranty service;
1.5 In the event it becomes necessary for Wang to notify OEM that
one or more Parts are required on an emergency basis, OEM will
use its best efforts to ship the Parts required by Wang, by
the method specified by Wang, the same day of receipt of such
notice when notice is received by OEM during the PPM and
within 24 hours of OEM receipt of such notice outside the PPM;
1.6 Repair or replace defective Parts at no cost to Wang;
1.7 Provide Wang a quarterly forecast of shipments for future
spares purchases;
1.8 Sell Wang motherboards for the Equipment at a per unit price
not to exceed [CMD];
1.9 Purchase from Wang all obsolete parts at the price charged to
Wang.
2. Wang will provide the following Parts services to OEM:
2.1 Keep records of the receipt, disbursement and use of Parts;
29
2.2 Utilize the same procedures in the safekeeping and record
keeping of Parts as used in maintaining its own parts and
records;
2.3 Return to OEM, at Wang's expense and risk of loss, all
defective Parts provided by OEM and affix to such defective
Parts a defective material tag to permit appropriate
identification.
3. Upon termination of this Agreement, Wang shall provide OEM with a final
reconciliation of all OEM outstanding defective material in transit and
shall ship the remaining Parts to the OEM at OEM's expense.
3.1 If OEM does not notify Wang of any discrepancies within thirty
(30) days of receipt of the final reconciliation, and
specifically identify any discrepancies, such inventories
shall be deemed to be conclusively agreed to by OEM; and OEM
shall thereupon be deemed to release and discharge Wang from
any liability for discrepancies in the inventory discovered
thereafter. Wang's responsibility for unreconciled inventory
discrepancies shall be subject to a 2% annual
industry-standard "shrinkage" factor.
3.2 OEM shall purchase from Wang all inventories of Parts upon
termination of this Agreement. Repurchase price shall be at
the most recent price charged to Wang for such Parts.
30
SCHEDULE G
CENTRAL/NORTH EUROPE SERVICE ADDENDUM
Schedule No. Description
------------ -----------
G-1 Wang Service Cities
G-2 Price Schedule and Payment Terms
G-3 Parts
31
SCHEDULE G-1
WANG SERVICE CITIES
Central Europe Tier
Austria A
Xxxx
Innsbruck
Linz
Salzburg
Vienna
Germany A
Berlin
Bonn
Bremen
Cologne
Frankfurt
Hamburg
Hanover
Munich
Stuttgart
Switzerland A
Bern
Geneva
Zurich
Northern Europe Tier
Belgium A
Antwerp
Brussels
The Netherlands A
Amsterdam
Rotterdam
The Hague
Denmark A
Copenhagen
Finland A
Helsinki
00
Xxxxxxx X
Xxxxxxx
Xxxxxx
Xxxxxxxxxx A
Luxembourg
Norway A
Oslo
Sweden A
Goteborg
Jonkoping
Malmo
Orebro
Omskoldsvik
Stockhom
Sundsvall
Vaxjo
United Kingdom A
Edinburgh
London
33
SCHEDULE G-2
CENTRAL/NORTH EUROPE PRICE SCHEDULE AND PAYMENT TERMS
I. Price Schedule for Next Business Day On-Site Service
Year One Pricing - Labor Only
-----------------------------
Fails/ % Units Warranty
Unit Failed Charge/Unit
---- ------ -----------
0.025 2.50% [$CMD]
0.030 3.00% [$CMD]
0.040 4.00% [$CMD]
0.050 5.00% [$CMD]
0.060 6.00% [$CMD]
0.070 7.00% [$CMD]
0.080 8.00% [$CMD]
0.090 9.00% [$CMD]
0.100 10.00% [$CMD]
0.200 20.00% [$CMD]
0.300 30.00% [$CMD]
0.400 40.00% [$CMD]
0.500 50.00% [$CMD]
0.600 60.00% [$CMD]
0.700 70.00% [$CMD]
0.800 80.00% [$CMD]
0.900 90.00% [$CMD]
1.000 100.00% [$CMD]
II. Extended Warranty Pricing
(Years Two, Three & Four) Pricing - Parts & Labor
-------------------------------------------------
Parts & Labor = [$CMD]
Within six (6) months of the date of this Agreement, the monthly minimum billing
for Extended Warranty Service shall be [$CMD] ("Minimum Monthly Billing"). If
the Minimum Monthly Billing falls below [$CMD] during any subsequent period of
three (3) consecutive months, Wang may withdraw the Extended Warranty Service
option for new End Users.
34
SCHEDULE G-3
Parts
1. Spare part(s) will be drawn from consigned or NEXAR shipped inventory.
The replenishment cycle for spare parts used in providing maintenance
service must be consistent with meeting the contracted response
requirements of this Agreement.
2. All spare parts are to be provided by NEXAR, at no charge to Wang, for
the term of the agreement. The level of spares provided for these
countries must be sufficient to enable service delivery per agreed
contract terms.
3. All defective parts will be returned to NEXAR, or its authorized agent
at no charge to Wang. Any applicable duty/customs fees and shipping
costs are the responsibility of NEXAR. In no case should repair
turnaround exceed 5 days after receipt of Wang returned defective
parts.
4. NEXAR will provide, at no charge to Wang, any packaging materials
necessary for returning defective parts. Any required special packaging
is the responsibility of NEXAR.
5. Duties, Customs, and shipping fees are the responsibility of NEXAR.
This includes any related fees Wang or its Authorized Distributors
incur when taking delivery of NEXAR supplied spare parts.
35
SCHEDULE H
JAPAN/OKINAWA SERVICE ADDENDUM
Schedule No. Description
------------ -----------
H-1 Wang Service Cities
H-2 Price Schedule and Payment Terms
H-3 Parts
36
SCHEDULE H-1
WANG SERVICE CITIES
Tier
----
Japan A
Fukuoka
Kobe
Kyoto
Nagoya
Naha
Osaka
Sapporo
Tokyo
Okinawa
37
SCHEDULE H-2
JAPAN/OKINAWA PRICE SCHEDULE AND PAYMENT TERMS
I. Price Schedule for Next Business Day On-Site Service
Year One Pricing - Labor Only
Fails/ % Units Warranty
Unit Failed Charge/Unit
---- ------ -----------
0.025 2.50% [$CMD]
0.030 3.00% [$CMD]
0.040 4.00% [$CMD]
0.050 5.00% [$CMD]
0.060 6.00% [$CMD]
0.070 7.00% [$CMD]
0.080 8.00% [$CMD]
0.090 9.00% [$CMD]
0.100 10.00% [$CMD]
0.200 20.00% [$CMD]
0.300 30.00% [$CMD]
0.400 40.00% [$CMD]
0.500 50.00% [$CMD]
0.600 60.00% [$CMD]
0.700 70.00% [$CMD]
0.800 80.00% [$CMD]
0.900 90.00% [$CMD]
1.000 100.00% [$CMD]
II. Extended Warranty Pricing
(Years Two, Three & Four) Pricing - Parts & Labor
-------------------------------------------------
Parts & Labor = [$CMD]
Within six (6) months of the date of this Agreement, the monthly minimum billing
for Extended Warranty Service shall be [$CMD] ("Minimum Monthly Billing"). If
the Minimum Monthly Billing falls below [$CMD] during any subsequent period of
three (3) consecutive months, Wang may withdraw the Extended Warranty Service
option for new End Users.
38
