Exhibit 10(e)(1)
NCR CORPORATION
GLOBAL MASTER AGREEMENT
---------------
Customer Number
INTER*ACT ELECTRONIC MARKETING INC.
Your Business Name ("you")
5032 Parkway Plaza Boulevard, Building 8
Charlotte, NC 28217
January 26, 2000
Effective Date
CONTENTS
1 - Definitions 8 - Your Obligations
2 - Orders, Addenda, and Contract Formation 9 - Product Evaluation
3 - Delivery and Installation 10 - Defense of Infringement Claims
4 - Prices, Invoice, Payment, Taxes, and Title 11 - NCR's Liability
5 - Services 12 - Dispute Resolution
6 - License to Use Software and Deliverables 13 - Miscellaneous Terms
7 - Warranties
1.0 DEFINITIONS
1.1 "Agreement" means this Global Master Agreement.
1.2 "Addendum" is defined in Section 2.1.
1.3 "Contract" is defined in Section 2.3.
1.4 "Deliverables" is defined in Section 5.3.
1.5 "Equipment" means hardware and associated peripherals and features that
you acquire from NCR.
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1.6 "NCR Product Specifications" means NCR's official published
specifications for Products when you acquire them (which NCR will provide to you
upon request), and the documentation which NCR includes with Products delivered
to you.
1.7 "NCR" means NCR Corporation.
1.8 "Policies" is defined in Section 2.2.
1.9 "Products" means Equipment, Software, Services, Deliverables, and
Supplies.
1.10 "Services" means those services that you acquire from NCR, including
those described in Section 5.0.
1.11 "Software" means computer programs in any form that you acquire from
NCR, but does not include diagnostic software as set out in Section 6.3 or
software developed by you.
1.12 "Supplies" means consumable items that you acquire from NCR.
1.13 PARTIES
1.13.1 NCR intends to use its affiliates and distributors to carry out
some or all of its non-U.S. activities under this Agreement.
1.13.2 You intend to use your affiliates to carry out some or all of
your non-U.S. activities under this Agreement.
1.13.3 NCR and you each agree to notify their respective affiliates and
distributors of the terms and conditions of this Agreement, and to procure that
such affiliates and distributors abide by the terms and conditions of this
Agreement.
2.0 ORDERS, ADDENDA, AND CONTRACT FORMATION
2.1 SCOPE; ADDENDA -- This Agreement establishes general terms and
conditions that apply to your acquisition (directly or through a leasing
company) of Products for your use. This Agreement does not authorize you
to acquire Products for resale or redistribution except as permitted in
the attached Exhibit A, Reseller Addendum. In the future, you and NCR may
agree to additional terms covering a specific transaction. These terms will
be contained in an "Addendum" (which may be called an Addendum, "Statement
of Work," or other name).
2.2 NCR POLICIES -- This Agreement refers to a number of NCR policies
("Policies"). These are written policies that apply to NCR's customers
generally. They contain supplemental details of NCR's Products (for
example, details regarding Services and Software usage terms) and the
way that NCR interacts with its customers (for example,
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NCR's credit policies). These Policies are incorporated into this Agreement as
if they were written in it. NCR will give you copies at your request. Changes
to these Policies affect only Contracts (defined in the next Section) which you
and NCR subsequently create or which renew; they do not change Contracts in
place at the time of the change during such Contracts' then-current terms.
2.3 CONTRACTS -- This Agreement, standing alone, does not constitute an
obligation to buy or provide Products except and until you and NCR
enter into an Addendum, purchase order, or other document that contains
terms and conditions, such as Products being ordered, quantities,
prices, delivery schedules, and discounts, which apply only to a
specific transaction. This Agreement and each set of
transaction-specific documentation will together constitute a
"Contract" between you and NCR that is a binding agreement separate
from other Contracts. NCR may accept written or oral orders. NCR
accepts an order when it signs the order or acknowledges it by
performance or otherwise. If NCR accepts a written order, the Contract
includes the written order, this Agreement, the applicable Policies,
and any applicable Addenda. Unless NCR specifically agrees in writing,
any preprinted language on your order forms will not be a part of the
Contract. If NCR accepts an oral order, the Contract includes this
Agreement, the applicable Policies, any applicable Addenda, and the
quantities, prices and product identifications confirmed on NCR's
invoice or acknowledgment. If there is a conflict within any Contract,
the following order of precedence will apply: first, the order, second,
any applicable Addenda, third, Policies, and finally, this Agreement.
2.4 OTHER SOFTWARE LICENSE TERMS; OTHER COMPANY'S PRODUCTS -- If NCR
provides Software to you with a "shrink-wrap" or other license, those
license terms are included in the Contract rather than the license
terms in this Agreement. If NCR provides you with Equipment, Software,
Deliverables, or Supplies that bear the logo or copyright of another
company with warranty and/or support terms from the other company, the
other company's terms are included in the Contract rather than those in
this Agreement, and, unless specifically agreed in writing, NCR
provides no warranty or support for these products. Upon your request,
NCR will give you a copy of the terms discussed in this Section 2.4
before you order these products.
2.5 INVOICED SERVICES -- In order to facilitate the continuation of
Services at the end of a warranty period or maintenance Service term,
NCR may offer to provide the Services by sending invoices covering them
to the person you designate. These invoices will clearly describe the
Services and identify the covered Products. If you want the Services,
pay the invoices, or let NCR perform the Services. The Contract will
include this Agreement, the applicable Policies, and the invoice terms.
If you do not want the Services but your employees mistakenly pay the
invoice or accept the Services, notify NCR within three months and NCR
will cancel the Contract. If you have made any payments, NCR will
refund them, less charges for time and materials which NCR has already
provided. If you have not made any payments, NCR will charge you for
time and materials which NCR has already provided.
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2.6 ELECTRONIC DATA INTERCHANGE ("EDI") -- NCR may provide EDI options,
including electronic ordering, invoicing and payment. These options and
NCR's acceptance of your electronic document will be governed by an EDI
Addendum to this Agreement. If, however, you and NCR communicate
electronically without executing an EDI Addendum, an identification
code contained in an electronic document will be legally sufficient to
verify the sender's identity and the document's authenticity as a
signed writing.
2.7 CHANGES -- Each Contract is the complete agreement between you and NCR
concerning transactions covered by it, and replaces any prior or
contemporary oral or written communications. If you request that NCR
cancel or modify a Contract (including changing delivery or
installation dates or locations), you and NCR will negotiate in good
faith new schedules and/or sufficient compensation to NCR for
accommodating you. If no agreement is reached, the Contract will
continue unmodified, and if you refuse to perform further or reject
NCR's tender of Products, NCR may pursue its available remedies. No
change to this Agreement or a Contract will be effective unless it is
in writing and signed by authorized representatives of both you and
NCR. Changes to Contracts should be made on NCR's change control form.
3.0 DELIVERY AND INSTALLATION
3.1 DELIVERY -- NCR will use reasonable efforts to perform its obligations
by dates included in a Contract. These dates are estimates only. NCR
will inform you of delays as far in advance as reasonably possible. If
NCR's performance is delayed (other than by a force majeure) for an
unreasonable time, you may cancel delivery without penalty.
3.2 LOCATION AND RISK OF LOSS -- NCR will deliver Products to the location
that you specify. If you select the shipping agent, the agent's receipt
of the Products constitutes delivery. Risk of loss passes to you upon
delivery. You agree to inspect Products when you receive them and to
notify NCR promptly if there is any visible damage.
3.3 INSTALLATION -- NCR will notify you if Products require a special
physical environment. You agree to provide that environment prior to
installation. Upon request, NCR will provide installation Services
which may be separately chargeable.
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4.0 PRICES, INVOICE, PAYMENT, TAXES, AND TITLE
4.1 PRICES -- Prices will be included in Contracts. If NCR announces a
price increase for a Product which you have ordered and the Contract
specifies guaranteed prices and delivery more than 120 days after the
price increase becomes effective, NCR will not increase your price for
the Product. However, in the event that a Contract for a Product does
not specify guaranteed Prices and delivery is more than 120 days after
the price increase becomes effective, NCR may increase your price for
the Product. Price increases for Services or Software licensed for a
periodic fee will only apply to subsequent billing periods.
4.2 INVOICE AND PAYMENT -- Unless otherwise provided in an Addendum to
this Agreement, NCR will invoice you (1) for Equipment and Software -after
shipment, unless NCR stores Equipment or Software for you, in which
case NCR will invoice you when storage begins; (2) for recurring
Services -- in advance; and (3) for non-recurring Services, including
the provision of Deliverables -- after NCR provides them to you.
Payment is due when you receive the invoice. NCR reserves the right to
charge late fees if it does not receive payment within 30 days from the
date of the invoice, at the rate of one and one-half percent per month,
or up to the maximum allowed by law, whichever is less. If you do not
pay within 30 days after NCR notifies, in advance and in writing, you
of your default, NCR also may suspend or terminate applicable Services
and repossess or reclaim the applicable Products without waiving NCR's
right to payment.
4.3 TAXES AND OTHER CHARGES -- Product prices exclude delivery and
installation charges; charges associated with preparing your site;
duties, levies and other similar charges; and all taxes (such as sales,
use, VAT, and ad valorem taxes, other governmental charges and taxes,
and assessments after audit) other than NCR's net income or franchise
taxes. If you qualify for tax exemptions, you must provide NCR with
appropriate exemption documentation.
4.4 TITLE -- Title of Equipment passes to you on delivery, except if
NCR stores purchased Equipment for you, title passes to you where and when
storage occurs. NCR retains a purchase money security interest in each
Product that you purchase until you pay for it. You appoint NCR as your
agent to sign and file a financing statement to perfect NCR's security
interest. In addition to NCR's retention of a purchase money security
interest in Products and based on NCR's credit policies and unless
otherwise provided in an Addendum, NCR may make its acceptance of
orders subject to the entering into of additional mutually acceptable
credit arrangements, which may include the making of advance payments.
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5.0 SERVICES
5.1 EQUIPMENT WARRANTY AND MAINTENANCE SERVICES
5.1.1 During the term of an Equipment warranty or Contract
for Equipment maintenance Services, NCR will maintain the covered
Equipment in accordance with this Section and applicable
Policies so that it complies with the warranties in Section
7.1.b. Unless otherwise provided in an Addendum to this
Agreement, the initial term of a Contract for Equipment
maintenance Services is one year and will automatically renew
for additional one year terms unless you or NCR terminate it.
Unless otherwise provided in an Addendum to this Agreement,
You or NCR may terminate a Contract for Equipment maintenance
Services at any time by providing 30 days advance written
notice. On termination under this Section 5.1.1, NCR will
refund the unapplied portion of any advance payment.
5.1.2 Unless otherwise provided in an Addendum to this
Agreement, NCR's Equipment warranty and prepaid or contract maintenance
Services include parts and, if labor is included in the
Service, labor during covered hours. NCR will charge
separately for: (1) Supplies; (2) service calls outside of the
applicable scope of contracted Service or coverage hours; (3)
service calls for Equipment that was in good operating
condition at the time of the call; (4) use of specified types
of Equipment above their rated usage levels (which NCR will
provide to you at your request); and (5) per-call Services
covering Products outside of warranty or not on contract
maintenance. NCR will also charge separately to repair
Equipment which has failed due to: (i) an alteration to
Equipment or Software or attachment not provided by NCR,
approved by NCR in writing or compatible with NCR's standard
interfaces; (ii) your use of Supplies or products acquired
from third parties that are defective or that do not meet NCR
standards or specifications; (iii) your or any third party's
negligence, misuse, or abuse; or (iv) fire, smoke, water, or
acts of God. Replaced parts become or remain NCR's property.
NCR's ability to rework replaced parts allows NCR to provide
cost effective maintenance services.
5.1.3 You must maintain the Equipment site consistent
with NCR specifications at your expense, and you must provide safe
working conditions and appropriate utility services for
maintenance personnel. When Equipment is under warranty or a
Contract for maintenance Services, or is loaned to you under
Section 9.0, you may not allow anyone other than NCR or an
authorized NCR warranty service provider to maintain it.
Before accepting an order for maintenance Services for
Equipment that is not then under maintenance Services or which
anyone other than NCR has installed or serviced, NCR may
inspect and refurbish it at your expense, subject to your
prior approval. Orders for maintenance Services must include
all of the same type of Equipment at a location.
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5.1.4 If NCR provides Services for products you acquire
from third parties, NCR will maintain those products in good operating
condition during the term of the Contract for those Services.
NCR will not assume the manufacturer's warranty obligations or
make modifications specified by the manufacturer unless
otherwise agreed in writing unless otherwise provided in an
Addendum to this Agreement,
5.2 SOFTWARE SERVICES
5.2.1 Unless otherwise provided in an Addendum to this
Agreement, during the term of a Software warranty or Contract for
Software Services, NCR will perform the following in
accordance with this Agreement and applicable Policies: (1)
provide telephone access to NCR support resources to assist in
resolving Software problems; and (2) distribute, at your
request, Software updates. NCR will announce the availability
of updates via internet postings or otherwise. Unless
otherwise stated, the initial term of a Contract for Software
Services is one year and will automatically renew for
additional one year terms unless you or NCR terminate it. You
or NCR may terminate a Software Services Contract at any time
by providing 30 days advance written notice. On termination
under this Section 5.2.1, NCR will refund the unapplied
portion of any advance payment.
5.2.2 NCR will provide Software Services for the most recent
release and the prior release of covered Software. Software Services
for the prior release may not include updates or code level
fixes. When you order Software Services, you must order the
same level of service (to the extent available) for all
interdependent Software operating on the same Equipment. If
you have licensed multiple copies of the same Software, you
must order Software Services for each copy used at the same
location.
5.2.3 To permit NCR to provide Software Services, upon
request you agree to assist in isolating Software problems. You also
agree to provide modems and telephone lines for NCR to access your
system remotely, to install and test all fixes and updates,
and to perform other actions reasonably requested by NCR.
5.3 PROFESSIONAL SERVICES -- When NCR performs Services for you, NCR may
provide you with ADeliverables.@ Deliverables may include: (1) custom
or third party Software in executable or source code form; and (2)
written, visual, or audio materials such as architectural designs, data
models, and training materials in either written or electronic form;
which relate to your information processing systems. Software
Deliverables may be subject to additional terms and conditions
contained in an Addendum.
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6.0 LICENSE TO USE SOFTWARE AND DELIVERABLES
6.1 Scope -- Subject to your payment of all one-time or periodic license
fees, NCR grants you a non-transferable, non-exclusive license to use
Software and Deliverables under the terms of this Agreement. Unless the
Contract or applicable Policies specify that the license to Software is
periodic, your license is perpetual. If the Contract or applicable
Policies do not specify usage terms such as the number of users or site
license rights, you may use Software at any time on a single processing
unit of the class and model for which you originally licensed it. You
may use Software in object code only, unless you and NCR agree to
additional terms regarding the use of source code. The license term for
Software and Deliverables begins on delivery. Your license to use
Software or Deliverables terminates automatically if you violate the
license terms. When a license terminates, you will immediately stop
using the Software or Deliverables and either return or destroy all
copies.
6.2 GENERAL -- You may not copy Software or Deliverables; transfer,
disclose, sublicense or distribute them to any party except as
permitted in the attached Exhibit A, Reseller Addendum; or use them
other than as allowed by this Agreement or a Contract, except that,
subject to Section 2.4, (a) you may transfer Software and Deliverables
to your affiliates who agree to be bound by this Agreement, (b) you may
give access to the Software and Deliverables to your consultants who
agree to be bound by the license terms of this Section 6.0 and the
Contract, for the sole purpose of performing consulting services for
you, and (c) if you transfer Equipment to a third party, you may
transfer Software running on that Equipment to the third party for that
party's internal use only (and not for resale or redistribution) if you
notify NCR and give the other party a copy of the license terms of the
Contract, including this Section 6.0 and all usage limitations. The
license transfer will be effective when the third party accepts the
terms by initial use of the Software and pays any applicable relicense
fees. You will retain copyright notices and proprietary legends on all
copies of Software and Deliverables you possess or transfer. Software
and Deliverables remain the property of NCR or its licensors. You will
not take any steps, such as reverse assembly or reverse compilation, to
derive a source code equivalent of Software. NCR shall not copy,
transfer, disclose, sublicense or distribute your software except as
you agree in other Addendums to this Agreement.
6.3 DIAGNOSTIC SOFTWARE -- NCR may provide Products to you that include
software, data, documentation, and other material that NCR uses to
diagnose the operation of Products (ADiagnostic Tools@). Diagnostic
software may be firmware or it may be loaded in memory from disks or
other media. The Diagnostic Tools are not licensed for use by any
person other than NCR Corporation. Diagnostic Tools are the
confidential intellectual property of NCR and are provided solely to
assist NCR in supporting its Products. They may not be copied,
disclosed to any third party (except under the same terms as under
Section 6.2(c)), or used by any person for any purpose whatsoever
without NCR's express written consent. NCR may delete or remove
Diagnostic Tools at any time without notice. NCR PROVIDES NO WARRANTIES
FOR DIAGNOSTIC TOOLS AND IS NOT LIABLE FOR THEIR USE BY ANY PERSON
OTHER THAN NCR.
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7.0 WARRANTIES
7.1 Equipment, Supplies, Software, and Services B NCR warrants that:
(a) Title in Equipment and Supplies will be free and clear except for
NCR's security interest.
(b) Equipment, Supplies, and Software media will be free from defects
in material and workmanship and will conform to NCR Product
Specifications. Software operation will materially conform to NCR
Product Specifications (except for Software Deliverables, which are
covered in 7.1(c) below).
(c) Deliverables, including Software Deliverables, will materially
conform to the specifications included in the applicable Addendum.
(d) Equipment and Software listed in the "NCR Year 2000 Qualification
List" ("Qualified Products") at the time of acquisition from NCR will
comply with the "NCR Year 2000 Qualification Requirements Definition"
in effect at the time of acquisition. Both the Qualification List and
the Qualification Requirements Definition will be made available to you
at your request. This warranty applies only to the performance of the
Qualified Products themselves, and does not extend to the use of
Qualified Products in combination with other products, whether acquired
from NCR or not. Notwithstanding Section 7.2, this warranty is not
limited in duration.
(e) It will provide Services in a professional manner consistent with
Section 5.0, any Contract, and applicable Policies in effect at the
time the Services are rendered.
7.2 WARRANTY PERIOD -- Unless otherwise specified in a Contract or Policies
at the time of delivery, the warranty period for Equipment and Supplies
is 90 days, and for Software and Deliverables is 30 days. Unless
otherwise provided in an Addendum to this Agreement, the warranty
period begins on delivery of the Product. As specified in the Kiosk
Addendum dated January 26, 2000, warranty begins upon installation at
your end-user's site but, in no event, will it begin more than three
(3) months after delivery to you or your designated staging agent. The
warranty for a copy of a piece of Software covers only that specific
copy; software fixes supplied under warranty Services may not be
incorporated into other copies of the same Software which are not then
under warranty or a Contract for Software Services.
7.3 NONCONFORMANCE WITH WARRANTIES -- If Equipment, Software (except
Software Deliverables, which are covered by the next sentence), or
Supplies do not conform to their warranties during the applicable
warranty period, NCR will without charge: (a) under Section 5.1 repair
Equipment or replace it with a unit of Equipment that is at least
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functionally equivalent; (b) under Section 5.2 correct Software; or (c)
replace Supplies. If NCR does not perform Services as warranted
(including by providing Deliverables that do not conform to their
warranties) and you provide prompt notice, NCR will use its best
efforts to reperform them.
7.4 REFUNDS
7.4.1 If NCR is unable to repair, correct, or replace Equipment,
Software (except Software Deliverables, which are covered by Section
7.4.2), or Supplies under Section 7.3 within a reasonable time, you may
return the defective Product and obtain a refund, or you may accept the
Product "as is."
7.4.2 If NCR is unable to reperform Services as warranted under Section
7.3 within a reasonable time (including by correcting any
non-conforming Deliverables), you may terminate the Contract and obtain
a refund of your payments to NCR for those Services and/or associated
Deliverables. Your refund for a fixed term Services Contract will not
exceed your most recent payment for such Services.
7.4.3 If NCR makes a warranty in a Contract that does not have a
specified remedy for its failure, and a problem arises concerning that
warranty, you will notify NCR promptly in writing, and NCR will without
charge correct the problem. If NCR is unable to correct the problem
within a reasonable time, you may return the affected Product(s) and
obtain a refund.
7.4.4 Any refund under this Section 7.0 will be reduced on the same
basis as you depreciate the Product(s) in your financial statements,
calculated from the delivery date. If you do not depreciate the
Product(s), the refund will be reduced on a 5-year straight-line basis.
7.5 WARRANTY SERVICES -- NCR will provide warranty Services under the
applicable Policies in effect when it delivers the Products. You may
separately purchase expanded warranty Services from NCR, when
available.
7.6 EXCEPT FOR WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT OR A
CONTRACT, NCR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING.
NCR DOES NOT WARRANT THAT PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR
FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL
BE CORRECTED. NCR HAS NO WARRANTY OBLIGATION FOR PRODUCTS THAT YOU
ACQUIRE FROM THIRD PARTIES, EVEN IF NCR ASSISTED IN EVALUATING OR
SELECTING THEM. THE FAILURE OF PRODUCTS YOU ACQUIRE FROM THIRD PARTIES
OR THEIR SUPPLIERS WILL NOT AFFECT YOUR OBLIGATIONS TO NCR. IF NCR
DESIGNATES THAT PRODUCTS ARE PROVIDED "AS IS," THERE IS NO WARRANTY.
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7.7 EXCLUSIVE REMEDIES -- Your rights and remedies set forth in this
Agreement or a Contract are exclusive and in lieu of all other rights
and remedies related to any Contract or Product (except to the extent
that applicable law prohibits agreements to disclaim warranties or
limit liabilities).
8.0 YOUR OBLIGATIONS
The successful performance of our Products depends on your knowledgeable
selection and operation of the Products and your reasonable cooperation with
NCR. Your obligations include, unless otherwise provided in an Addendum to this
Agreement :
(a) determining whether the Products, if they perform as warranted,
will meet your specific requirements;
(b) giving NCR sufficient, free, and safe access to your facilities,
free of any hazardous materials (e.g., asbestos) or conditions;
(c) providing back-up equipment and services to safeguard your
programs, data and funds;
(d) giving NCR reasonable access to your employees, including clearly
identified key contacts;
(e) obtaining the commitment of your management to the success of the
Products and communicating that commitment to all of your employees;
(f) appropriately educating your employees on the use of the
Products;
(g) giving NCR information that it requests that is reasonably relevant
to your implementation or operation of the Products;
(h) obtaining any necessary governmental permits or consents;
(i) implementing and operating the Products;
(j) testing and operating Software and all Software updates; and
(k) documenting Software problems.
If you cause a delay in NCR's performance under a Contract, NCR may charge you a
reasonable amount for accommodating you as specified in a separate Contract or
Addendum to this Agreement, eg: Kiosk Addendum dated January 26, 2000, Section
9.0.
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9.0 PRODUCT EVALUATION
NCR may loan Products to you for your evaluation. You and NCR will agree in
advance on: (1) the length of the evaluation period; (2) prices if you elect to
acquire the Products; (3) the post-evaluation warranty periods, if any; and (4)
who will bear related costs of freight, installation/deinstallation and
maintenance. The evaluation period will begin when NCR delivers the Products to
you. At the end of the evaluation period, you will make the Products available
for return to NCR, or NCR will invoice you for the Products at the agreed
prices. You agree not to move the Products to another location during the
evaluation without NCR's consent. DURING YOUR EVALUATION, PRODUCTS ARE FURNISHED
TO YOU "AS IS." IF YOU ARE DISSATISFIED WITH THEM FOR ANY REASON, YOUR EXCLUSIVE
REMEDY WILL BE NCR'S REMOVAL OF THE PRODUCTS FROM YOUR SITE.
10.0 DEFENSE OF INFRINGEMENT CLAIMS
NCR will defend at its expense any claim or suit brought against you alleging
that any Product infringes a patent, copyright or trade secret and will pay all
costs and damages finally awarded, if you promptly notify NCR of the claim and
give NCR (a) the information and cooperation that NCR reasonably asks for, and
(b) sole authority to defend or settle the claim. In handling the claim, NCR may
obtain for you the right to continue using the Product or replace or modify the
Product so that it becomes non-infringing. If NCR is unable to reasonably secure
those remedies, as a last resort NCR will refund the purchase price for
infringing Equipment and refund one-time license fees for infringing Software.
The refund will be reduced on the same basis as you depreciate the infringing
Product in your financial statements. If you do not depreciate it, the refund
will be reduced on a 5-year straight-line basis. NCR is not obligated to
indemnify you under this Section 10.0 if the alleged infringement is based on
the use of the Product with other products not furnished directly by NCR, or on
NCR's compliance with any designs, specifications or instructions provided by
you, or if anyone other than NCR has modified the Product. THIS SECTION STATES
NCR'S ENTIRE LIABILITY FOR INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS,
AND OTHER INTELLECTUAL PROPERTY RIGHTS.
11.0 NCR'S LIABILITY
Circumstances may arise where, because of NCR's default or other liability, you
are entitled to recover damages from NCR. In each such instance, regardless of
the basis on which you become entitled to claim damages, your sole remedy, and
NCR's entire liability (except to the extent that applicable law prohibits
agreements to limit liabilities), is as follows:
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11.1 For failure (i) of Equipment, Supplies, and Software (other than Software
Deliverables, which are covered by the next clause) to conform to their
warranties during a warranty period, (ii) to perform Services (including by
providing Deliverables that do not conform to their warranties) as warranted,
and (iii) any warranty as set out in Section 7.4.3, as stated in Section 7.0.
11.2 For delays in delivery, as stated in Section 3.1 or as otherwise provided
in a Contract.
11.3 For your dissatisfaction with Products that NCR loans to you, as stated in
Section 9.0.
11.4 For infringement of patents, copyrights, trade secrets, and other
intellectual property rights, as stated in Section 10.0.
11.5 For bodily injury, including death, caused by NCR's negligence, NCR's
liability will be unlimited, to the extent NCR's negligence caused the injury.
For physical damage to tangible property, NCR will be liable for direct damages
up to $1,000,000 per occurrence, to the extent NCR's negligence caused the
damage.
11.6 FOR ALL CLAIMS NOT EXPRESSLY ADDRESSED IN SECTIONS 11.1 THROUGH 11.5 (OR IF
THE REMEDIES IN THOSE SECTIONS ARE HELD TO HAVE FAILED OF THEIR ESSENTIAL
PURPOSE OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE), INCLUDING BUT NOT
LIMITED TO CLAIMS OF FRAUD OR MISREPRESENTATION ARISING OUT OF OR RELATED IN ANY
MANNER TO THE PERFORMANCE OF ANY OBLIGATIONS UNDER A CONTRACT, NCR'S CUMULATIVE
LIABILITY (INCLUDING REFUNDS AND THE VALUE OF REPLACEMENT PRODUCTS GIVEN TO YOU)
WILL BE LIMITED TO YOUR PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT YOU PAID
NCR FOR THE APPLICABLE PRODUCT IN CONTROVERSY.
11.7 UNDER NO CIRCUMSTANCES ARE NCR, OR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES; OR FOR LOSS OF PROFITS, REVENUE, OR DATA;
WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE,
EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
11.8 SECTIONS 11.6 AND 11.7 WILL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED
REMEDY.
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12.0 DISPUTE RESOLUTION
12.1 Negotiation, Escalation and Mediation -- If any controversy or claim arises
relating to this Agreement or any Contract, you and NCR will attempt in good
faith to negotiate a solution to our differences, including progressively
escalating any controversy or claim through senior levels of management. If
negotiation does not result in a resolution within 15 business days of when one
party first notifies the other of the controversy or claim, you and NCR will
participate in good faith mediation as administered by the American Arbitration
Association.
12.2 ARBITRATION -- Any controversy or claim between you and NCR, whether based
on contract, tort, statute, or other legal theory (including but not limited to
any claim of infringement, fraud, or misrepresentation) which cannot be resolved
by negotiation or mediation will be resolved by binding arbitration under this
Section 12.2 and the then-current Commercial Rules and supervision of the
American Arbitration Association. The duty to arbitrate will extend to any
employee, officer, shareholder, agent, or affiliate of you or NCR making or
defending a claim which would be subject to arbitration if brought by you or
NCR. If any part of this Section 12.0 is held to be unenforceable, it will be
severed and will not affect either the duty to arbitrate or any other part of
this Section 12.0. The arbitration will be held in the United States
headquarters city of the party not initiating the claim before a sole arbitrator
who is knowledgeable in business information and electronic data processing
systems. The arbitrator's award will be final and binding and may be entered in
any court having jurisdiction. The arbitrator will not have the power to award
punitive or exemplary damages, or any damages excluded by, or in excess of, any
damage limitations expressed in this Agreement or a Contract. Issues of
arbitrability will be determined in accordance solely with the federal
substantive and procedural laws relating to arbitration; in all other respects,
the arbitrator will be obligated to apply and follow the substantive law of the
state of New York, as provided by Section 13.9.
12.3 COSTS -- Each party will bear its own attorney's fees and other costs
associated with the negotiation, mediation, and arbitration provided for by this
Section 12.0, except that costs and expenses of arbitration other than
attorney's fees will be paid as provided by the rules of the American
Arbitration Association. If court proceedings to stay litigation or compel
arbitration are necessary, the party who unsuccessfully opposes such proceedings
will pay all associated costs, expenses and attorney's fees which are reasonably
incurred by the other party.
12.4 TWO YEAR LIMITATION -- Neither you nor NCR may bring a claim or action
regardless of form, arising out of or related to this Agreement, including any
claim of fraud or misrepresentation, more than two years after the delivery of
any Products at issue, or more than two years after cause of action accrues,
whichever is later.
12.5 CONFIDENTIALITY -- In order to facilitate the resolution of controversies
or claims between you and NCR, you and NCR will keep them confidential,
including details regarding negotiations, mediation, arbitration, and settlement
terms.
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12.6 SUBSTITUTE PRODUCTS -- Your acceptance of refunds or substitute Products
under this Agreement waives all claims relating to the nonperforming Products
involved.
13.0 MISCELLANEOUS TERMS
13.1 Effective Date; Non-Waiver; Assignment -- The cover page of this Agreement
specifies the effective date. If the date is left blank, the date NCR signs this
Agreement or first provides Products to you is the effective date. Failure to
enforce any term of this Agreement or a Contract is not a waiver of future
enforcement of that or any other term. Neither you nor NCR may assign this
Agreement, a Contract, or its rights or obligations under them without the
express written consent of the other, except NCR may assign this Agreement or a
Contract to an affiliate and may use subcontractors or resellers to fulfill its
obligations.
13.2 SEVERABILITY -- If any provision of this Agreement or a Contract is held to
be illegal, invalid, or unenforceable, the provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remaining provisions of this Agreement or the Contract will remain in full force
and effect.
13.3 TERMINATION -- This Agreement will remain in effect until you or NCR
terminate it on 30 days advance written notice. Termination of this Agreement
will not terminate any existing Contract or Addendum to this Agreement.
13.4 INSOLVENCY AND BANKRUPTCY -- On the occurrence of any of the following, all
Contracts will automatically terminate unless the non-affected party elects to
have any such contract continue:
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(a) the admission by either party in writing of its inability to pay
its debts generally or the making of a general assignment for the
benefit of creditors;
(b) any affirmative act of insolvency by either party or the filing by
or against any party of any petition or action under any bankruptcy,
reorganization, insolvency arrangement, liquidation, dissolution or
moratorium law, or any other law or laws for the relief of, or relating
to, debtors; or
(c) the subjection of a material part of either party's property to any
levy, seizure, assignment or sale for or by any creditor, third party
or governmental agency.
13.5 CONFIDENTIALITY; CUSTOMER REFERENCES --Without revealing any specific terms
of this Agreement, you may disclose that NCR is your vendor and NCR may disclose
that you are an NCR customer, and both parties may disclose the Products you are
purchasing from NCR, the contract value and the purpose for which you intend to
use those Products. Each party may request the other to participate in mutually
agreed upon marketing activities, including participating in and providing
quotes for inclusion in press releases, participating in print and television
advertisements, discussions with the media and business analysts, speaking at
company and industry events and allowing the other to document a case study of
its use of NCR products.
13.6 NOTICES -- All notices (including requests, consents or waivers) made under
this Agreement or any Contract will be in writing and delivered by facsimile,
electronic mail, or other electronic means (in which case the recipient will
provide acknowledgment within one business day separately from any
machine-generated automatic reply); or by prepaid means providing proof of
delivery. Notices are effective upon receipt. NCR will send notices to you at
the address on the face of this Agreement, and you will send notices to NCR at
its local district office or other designated address, with an additional copy
to:
General Counsel/Notices WHQ-5
NCR Corporation
Dayton, OH 45479
Fax: (937) 445-7214
Email: law.notices@daytonoOH.ncr.com
Either party may change its address upon notice as required by this Section.
13.7 GEOGRAPHIC SCOPE This Agreement shall be applicable to the parties business
relationship on a global basis. Both you and NCR will comply with all applicable
laws, regulations, rules and ordinances in force, including any laws relating to
export control applicable to any Contract, and specifically to all U.S. laws
relating to foreign corrupt practices.
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13.8 FORCE MAJEURE -- Neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots,
strikes, fire, or other causes beyond its reasonable control, except for your
obligation to make payments.
13.9 CHOICE OF LAW -- New York law governs this Agreement, except for its laws
regarding choice of law and as stated in Section 12.2; the United Nations
Convention on Contracts for the International Sales of Goods does not apply.
THIS AGREEMENT TOGETHER WITH ANY CONTRACTS SETS OUT THE ENTIRE AGREEMENT WITH
RESPECT TO YOUR ACQUISITION OF PRODUCTS FROM NCR. YOU ACKNOWLEDGE THAT YOU HAVE
READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT.
Executed on your behalf by:
INTER*ACT ELECTRONIC NCR CORPORATION
MARKETING INC.
/S/ LEE ARMBUSTER /S/JAMES G. NADLER
Authorized Signature Authorized Signature
LEE ARMBUSTER JAMES G. NADLER
Printed Name Printed Name
PRESIDENT/COO VICE PRESIDENT -
Title Title
2/20/00 2/16/2000
Date Date
/s/ Alan Couch
Alan Couch
3/1/00
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EXHIBIT A
RESELLER ADDENDUM
AS OF FEBRUARY 14, 2000, THE RESELLER ADDENDUM IS TO BE NEGOTIATED.
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