Exhibit 10.1
Agreement Number
UNISYS Consolidated
Agreement
Client Name and Mailing Address
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Xxxxx River Bankshares, Inc.
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000 X. Xxxxxx Xxxxxx
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Xxxxxxxxxxxx, XX 00000
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Client acknowledges it has read and understands this Agreement (including all
attached schedules and amendments) and is not entering into this Agreement on
the basis of any representations not expressly set forth in it.
Agreed and Accepted
Xxxxxx Xxxxxxxxxxx Client
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(Signature) (Date) (Signature) (Date)
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(Printed/typed name) (Printed/typed name)
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(Title) (Title)
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UNISYS Consolidated Agreement
Xxxxxx Xxxxxxxxxxx (Unisys) will sell and license Products and services and
Client agrees to purchase and license those Products and services under the
following terms and conditions:
1. Definitions
1.1 Software means the object code version of computer programs and any
related documentation, excluding maintenance diagnostics. Software also
means the source code version where provided by Unisys. Software also
means microcode, not embedded in a circuit element, that enables the
equipment to function according to its published specifications.
1.2 Products means equipment, Software, documentation (including manuals
and education materials) and Software maintenance releases and updates.
1.3 Software Processing Unit ("SPU") means equipment which controls and
executes Software.
1.4 SURETY Support Services means various forms of installation and
support for the Products.
1.5 Proprietary Information means Software, diagnostics, documentation,
including manuals, and any other information confidential to Unisys or its
licensors.
1.6 Information Services means all technical and consultative services
other than SURETY Support Services.
1.7 Installation Date means the date Unisys completes installation (as
determined by Unisys) or, if equipment or Software is to be installed by
Client, the tenth day following shipment.
2. Effective Date
This Agreement will become effective when signed by duly authorized
representatives of both parties and will continue in effect until
terminated according to its terms.
3. Schedules - Ordering Procedure
3.1 Unisys will furnish to Client and Client will accept and pay for the
Products and services itemized on the following Schedules which, together
with the terms on the Schedules, are an integral part of this Agreement.
Schedule name
Equipment Sale
SURETY Support Services
Software Licenses
Information Services
All references to Products and services in this Agreement are to the
Products and services listed on the Schedules and on any Schedules
submitted to and accepted by Unisys pursuant to Section 3.2 and to any
Products and services supplied by Unisys with such listed Products and
services.
3.2 Client may order additional Products and services under this Agreement
by submitting properly completed Unisys Supplemental Schedule Orders
referencing this Agreement. All Orders will refer to this Agreement by
number and will be signed by Client. All education lecture courses must be
ordered on a Client Education Enrollment Application.
3.3 All orders are subject to acceptance by Unisys. Acceptance by Unisys
will be effective when communicated in writing to Client. The receipt or
deposit by Unisys of a Client down payment will not constitute acceptance
of an order. Any down payment received from Client will be returned if the
order is not accepted by Unisys.
3.4 Unisys may substitute Products of equivalent or superior functionality
and performance in the event that any of the Products ordered are not
available at the time of shipment.
4. Delivery and Installation
4.1 Unisys will arrange for delivery of Products and Client will pay for
transportation in accordance with the Unisys published transportation
charges in effect at the time of delivery or, if Unisys has not published
any such charges, Client will pay Unisys for transportation charges
actually incurred. Client will also pay for all cables and site-specific
installation materials required to install the equipment at Client's site.
4.2 Unisys will provide Client with one copy of the then-current user
documentation, in paper or electronic form at the option of Unisys, for
use with the Products ordered and environmental specifications for
equipment, where applicable. Prior to delivery of equipment, Client will
prepare the installation site and will continue to maintain the
installation site in accordance with such specifications.
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4.3 Client will install all items of equipment with the designation "Y" in
the "Client installable" column when there is no installation charge
listed on the Equipment Sale Schedule. Unisys will install all other items
of equipment. Client will install all items of Software other than those
for which a fixed installation charge is indicated on the Software
Licenses Schedule. All Products to be installed by Unisys will be
installed during Unisys normal working hours, unless otherwise provided in
this Agreement.
4.4 Client may arrange for installation by Unisys of Client installable
Products, subject to the then-current standard Unisys charges and
conditions.
4.5 If additional labor and rigging is required for installation due to
Client's special site requirements, Client will pay those costs including
costs to meet union or local law requirements.
5. Payment
5.1 Charges for Products will be invoiced upon shipment.
5.2 Charges for SURETY Support Services will be invoiced in advance,
quarterly, annually, or at other periodic intervals; otherwise, charges
will be invoiced after the services are performed. Hourly use, page and
remote service charges will be invoiced monthly unless otherwise
indicated.
5.3 Charges for Information Services will be invoiced as the services are
performed.
5.4 All charges must be paid no later than 30 days from the date of the
invoice. Unisys may impose a late payment charge equal to the lesser of
(a) 1-1/2% per month or (b) the maximum rate allowed by law.
5.5 Additional charges may apply to services rendered outside contracted
hours or beyond normal coverage at Client's request, e.g., travel
expenses, premium and minimum charges.
6. Taxes
6.1 Client will pay any tax Unisys becomes obligated to pay by virtue of
this Agreement, exclusive of taxes based on the net income of Unisys.
6.2 All personal property and similar taxes assessed after shipment will
be paid by Client.
7. Price Protection
7.1 The charges for Products in any accepted order will remain firm
through delivery, unless through no fault of Unisys shipment takes place
more than one year after the date of the order. If Unisys notifies Client
that an increase in charges will apply to its order, Client may terminate
the affected part of its order by giving written notice to Unisys within
ten days of the date of notification of the increase.
7.2 SURETY Support Services charges will not be increased during the first
twelve months following the commencement of those services. The charges
may be increased thereafter on each anniversary of the commencement date
following 90 days prior written notice to Client, unless otherwise noted
on the SURETY Support Services Schedule.
7.3 Charges for Software Licenses and Information Services will not be
increased during any one-year term, but may be increased prior to any
subsequent term upon 90 days prior written notice to Client. If Software
or services are contracted on a month-to-month basis the charges may be
increased at any time following 90 days prior written notice.
8. Security Interest
Unisys reserves a purchase money security interest in equipment until
payment in full is received for all equipment delivered to Client and, for
that purpose, this Agreement is a security agreement, By signing this
Agreement, Client authorizes Unisys or its agent to sign on behalf of
Client the necessary financing statements, or to file a reproduction of a
financing statement. Alternatively, Unisys may file this Agreement or a
copy of this Agreement to perfect its security interest. If this Agreement
or a copy of it is filed, information concerning the security interest may
be obtained from Unisys at the address stated in Section 17.
9. Client's Operational Responsibilities
9.1 Client acknowledges it has independently determined that the Products
and services ordered under this Agreement meet its requirements.
9.2 Client has sole responsibility for use of the Products, including
operating procedures, audit controls, accuracy and security of input and
output data, restart and recovery routines, and other procedures necessary
for Client's intended use of the Products.
9.3 Client will ensure that its personnel are, at all times, educated and
trained in the proper use and operation of the Products and that the
Products are used in accordance with applicable Unisys manuals and
instructions.
9.4 Client will maintain back-up data necessary to replace critical Client
data in the event of loss or damage to such data from any cause.
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9.5 If Unisys is providing SURETY Support Services, Client will (a)
maintain the operating environment in accordance with Unisys
specifications, (b) provide adequate working and storage space for use by
Unisys personnel near the equipment, (c) provide Unisys full access to the
equipment and sufficient computer time, subject only to Client's security
rules, (d) follow Unisys procedures for placing service requests and
determining if remedial service is required, (e) follow Unisys
instructions for operator maintenance and obtaining services, (f) provide
a memory dump and additional data in machine readable form if requested
(g) reproduce suspected errors or malfunctions in Software, and (hi
install all error corrections and maintenance releases supplied by Unisys.
9.6 Information Services supplied by Unisys under this Agreement are
provided to assist Client. Client, not Unisys, will be responsible for
determining objectives and obtaining the desired results.
10. Protection of Proprietary Information
10.1 Client will keep in confidence and protect Proprietary Information
from disclosure to third parties and restrict its use as provided in this
Agreement. Client acknowledges that unauthorized disclosure of Proprietary
Information may cause substantial economic loss to Unisys or its
licensors. All materials containing Proprietary Information will be marked
with "Proprietary," "Confidential," or in a manner which gives notice of
its proprietary nature. Proprietary Information will not be copied, in
whole or in part. except when essential for correcting, generating or
modifying Proprietary Information for Client's authorized use. Each copy,
including its storage media, will be marked by Client with all notices
which appear on the original.
10.2 Upon termination or cancellation of any license granted under this
Agreement, Client will destroy (and, in writing, certify destruction) or
return to Unisys all copies of the Software the license for which has been
so terminated or canceled and any other related Proprietary Information in
Client's possession (including Proprietary Information incorporated in
other software or writings).
10.3 Any ideas, concepts, know-how, data processing techniques, Software,
documentation, diagrams, schematics or blueprints developed by Unisys
personnel (alone or jointly with Client) in connection with Information
Services provided to Client will be the exclusive property of Unisys.
Unisys grants to Client a non-exclusive, royalty-free license to use any
of the foregoing in accordance with the terms of this Agreement.
10.4 Client acknowledges that all support materials, including without
limitation, diagnostic software, are the property of and include
Proprietary Information of Unisys. Client assures that such materials will
be used only by Unisys maintenance personnel, and that Unisys has the
right to remove such materials from Client's facility at any time. This
provision applies even though such materials may be listed in the Unisys
price lists, catalogs, invoices or contracts.
10.5 Client will inform its employees of their obligations under this
Section 10 and instruct them so as to ensure such obligations are met.
10.6 This Section 10 will survive termination or cancellation of this
Agreement.
11. License
11.1 Unisys grants to Client a personal, non-exclusive and nontransferable
license to use Software and related documentation according to the terms
and conditions of this Agreement, solely for Client's internal data
processing requirements on the Unisys SPU in the United States on which
Software is initially installed. Client's use of Software will also be
governed by any additional conditions which Unisys may provide on or prior
to delivery of Software. Client agrees that Unisys may periodically
inspect the computer site in order to audit Software supplied by Unisys
installed at Client's site at mutually agreed upon times. If a separate
license agreement accompanies non Unisys commodity Software, then the
separate license agreement terms will supersede the license terms in this
Agreement for that Software,
11.2 Client may modify any Unisys application Software and may combine
this Software with other programs or materials to form an updated work,
provided that upon termination of the license, the Unisys application
Software will be removed from the updated work and returned to Unisys.
Client will not decompile or disassemble any Software provided under this
Agreement or modify Software which bears a copyright notice of any third
party.
11.3 Unisys provides no media or documentation for Software designated
"LO"(License Only). Client may make (a) one archival copy (for backup
purposes) of each item of Software, and (b) one copy, as required, for
each license granted of Software designated "LO" Each copy will contain
all legends and notices and will be subject to the same conditions and
restrictions as the original. Software designated "SUBSCRN" (subscription)
entitles Client to functional updates that Unisys releases for the same
eligible base Software during the applicable term of the subscription,
provided Client has a current license and the latest applicable Software
Maintenance Releases for the eligible base Software. Software designated
"DRIVER" is for use solely with those models of device types specified in
the driver's then-current published specification and a license is
required for each separately addressable unit of a device type.
11.4 If the SPU on which any item of Software is licensed becomes
temporarily unavailable, use of such Software may be temporarily
transferred to an alternative SPU until the original SPU becomes
available.
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11.5 No license is granted to Client to use any Unisys proprietary
operating system Software to assess, test or develop any hardware products
or device handler software or operating system software that will be
marketed by Client or others for compensation. Client may develop other
software programs and may test fully developed, commercially available non
Unisys hardware products or software programs where such testing is solely
intended for Client's internal evaluation of the fitness of such product
or program for Client's own internal data processing purposes.
11.6 If Client desires to: (a) use Software in a service bureau mode, (b)
use Software at another location, (c) use Software as restricted in
Section 11.5, or (d) transfer operational use of the Software to a third
party; then Client must request prior permission in writing from Unisys.
Unisys will then advise Client whether, and under what terms and
conditions, Unisys will license the Software as requested. All
restrictions applicable to Client will also apply to any permitted service
bureau or third party users.
11.7 This Agreement does not transfer to Client title to any intellectual
property contained in any Software, documentation or Proprietary
Information.
11.8 No party is entitled to use any Software unless the party has a valid
written license to use such Software and all applicable charges for the
use of such Software have been paid, except that Client may authorize
temporary use of Software by a third party, only for Client's benefit, to
assess, test or develop software programs to the extent authorized by
Section 11.5 or to perform consulting services and studies, provided such
third party agrees in writing to be bound by the provisions of this
Agreement regarding Proprietary Information and Software,
11.9 This section applies to all procurements of Software and
documentation by or for the U.S. federal government. By accepting delivery
of the Software and documentation, the government hereby agrees that the
Software and documentation qualifies as "commercial" computer software and
commercial software documentation within the meaning of the acquisition
regulations) applicable to this procurement. The terms and conditions of
this license shall prescribe the government's use and disclosure of the
Software and documentation, and shall supersede any contrary provisions.
The government agrees to return the Software and documentation unused if
any provision of this License does not meet the government's actual
minimum needs or if the government objects to any term of this license and
the parties are unable to reach agreement on the terms of the license. The
following statement applies only to procurements governed by DFARS Part
227.4 (OCT 1988): "Restricted Rights - Use, duplication and disclosure by
the Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013 (OCT 1988)."
12. Warranties and Disclaimers
12.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. UNISYS
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AS TO BOTH UNISYS AND NON UNISYS PRODUCTS AND SERVICES.
UNISYS WARRANTIES EXTEND SOLELY TO CLIENT. YEAR 2000 WARRANTIES OF
EQUIPMENT AND SOFTWARE ARE MADE SOLELY IN SECTION 12.4.
12.2 Equipment:
(a) Unisys warrants that equipment will be free from defects in material
and workmanship and will substantially conform to relevant Unisys
published specifications for a period of twelve months from its
Installation Date. Equipment (i) may be newly manufactured, (ii) may be
assembled from new or serviceable used parts that are equivalent to new
parts in performance, or (iii) may have been previously installed. During
this twelve month warranty period, Unisys will repair or replace any
defective item of equipment or part or component of equipment promptly
reported or sent to Unisys by Client which Unisys determines was defective
due to faulty material or workmanship. Client will pay transportation and
insurance costs to ship equipment if an off-site repair location is
designated by Unisys; Unisys will pay the return costs if the equipment
was defective. Labor costs of diagnosis are not included in this warranty.
(b) Because equipment requires on-going maintenance, the preceding
warranty is not a substitute for SURETY Support Services, which are
available to Client for a charge.
(c) Unisys makes no representation or warranty as to non Unisys equipment
provided to Client, all of which is sold or licensed to Client "AS IS."
Client agrees to look solely to the warranties and remedies, if any,
provided by the manufacturer.
12.3 Software:
(a) Each item of Software with the designation "W" is, in its unaltered
form, warranted for-90 days from its Installation Date to conform
substantially to the then-current published functional specifications,
provided such Software is used in a manner consistent with any applicable
Unisys minimum equipment and software configuration specifications. Unisys
will make reasonable efforts to correct such errors reflecting significant
deviations from the functional specifications as are reported by Client to
Unisys during such warranty period.
(b) Because not all errors in Software can or need be corrected, Unisys
does not warrant that all Software defects will be corrected. Similarly,
Unisys does not warrant that the functions contained in the Software will
meet Client's requirements or that the Software will operate in
combinations selected for use by Client.
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(c) All other Software delivered is not warranted by Unisys and is
licensed "AS IS." In the case of non Unisys Software, Client agrees to
look solely to the warranties and remedies, if any, provided by the Unisys
licensor or vendor.
12.4 Year 2000 - Equipment and Software
(a) Unisys warrants that the Products designated "R" in the Y2K Ready
column in the relevant Schedule to this Agreement will be capable, when
used in accordance with the applicable Product documentation provided by
Unisys, of accurately processing date data (including, but not limited to
calculating, comparing and sequencing) from, into and between the 20th and
21st centuries and 1999 and 2000, including leap year calculations,
provided that all third party products and Client's customized data
processing materials used in combination with the Products properly
exchange date data with the Products (hereinafter "Year 2000 Ready").
Unisys will repair or replace Products that do not accurately process date
data as set forth above, provided: (i) Client notifies Unisys before March
31, 2000 or, if later, before the expiration of any general warranty
period for the Products under Sections 12.2 or 12.3 above; and (ii) Client
keeps the Products at the then-current release level(s) and, in the
absence of a general warranty or after any general warranty period,
enrolled continuously under Unisys maintenance.
(b) Unisys makes no warranty for date data functionality for Products
designated "V" in the Y2K Ready column. Unisys obtains these Products from
third parties and will pass on to Client such date data functionality
warranties, if any, as the Product vendor permits Unisys to pass along on
the Product vendor's behalf to end users. Client agrees to look solely to
such Product vendors for correction or repair of defects in date data
functionality of such Products.
(c) Products designated "RC" in the Y2K Ready column are obtained from
third parties and are warranted as "R" according to Section 12.4(a),
above, when: (i) acquired from Unisys; and (ii) designated by Unisys for
use as a component in a Unisys packaged style designated "R;" and (iii)
used by Client only as a component in that Unisys packaged style. In all
other instances, a Product designated "RC" will be deemed and treated as a
'V' Product under Section 12.4(b), above.
(d) Unisys makes no warranty for date data functionality for Products
designated "N" or "U" or for Products with no designation in the Y2K
Ready column. Client acknowledges that it understands that Products
designated "N" are not and will not be made Year 2000 Ready and that
Unisys disclaims any warranty of the Product's ability to function
correctly when dealing with dates. Client has independently evaluated the
Products and, notwithstanding the foregoing, confirms its order for the
said Products and agrees its use of such Products will be at its sole
risk.
12.5 SURETY Support Services:
(a) Unisys warrants that equipment and Software will be supported in
accordance with the specific SURETY Support Service selected, Unisys sole
and exclusive obligations under this warranty will be to conform to the
SURETY Support Service Descriptions. Equipment parts which are removed for
replacement by Unisys become the property of Unisys.
(b) To determine eligibility and prerequisites for SURETY Support
Services, Unisys may require inspection, at Client expense, of equipment
which (i) has not been maintained continuously by Unisys from the date of
purchase by Client or (ii) has been relocated.
(c) Unisys requires the same SURETY Support Service Level for the SPU and
all equipment and Software that is eligible for SURETY Support Services
and interoperates with the SPU. Application software, local area networks,
workstations, and remote data communications Products are excluded from
this requirement.
(d) SURETY Support Services do not cover the parts and service required to
repair damage or correct errors attributable to (i) alterations or
out-of-specification supplies, (ii) accidents, misuse, negligence or
failure of Client to follow instructions for proper use, care and cleaning
of equipment, (iii) external factors (e.g., failure or fluctuation of
electrical power or air conditioning, fire, flood), or (iv) failure by
Client to comply with Unisys environmental specifications.
(e) SURETY Support Services apply only to properly configured Products at
the minimum hardware and software levels designated by Unisys for support
of the applicable Product specification. SURETY Support Services will
include repair or correction of material deviations that prevent the
Product from being Year 2000 Ready only if the Product is warranted as "R"
according to Sections 12.4(a) and (c) and Unisys is then currently
providing development center support (also called engineering support) for
the Product or, if Unisys discontinues development center support, a
Unisys created repair or correction already exists for the same deviation.
Except as provided in the immediately preceding sentence, all SURETY
Support Services provided by Unisys exclude repair of damage or correction
of errors related to date data functionality.
(f) SURETY Support Services do not include correction or repair of
defects, including any related to date data functionality, in the design,
manufacture, materials or workmanship of either (i) non Unisys services or
products without a Unisys brand, or (ii) Product(s) for which Unisys has
discontinued development center support.
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12.6 Information Services:
(a) Unisys will endeavor to provide Information Services on a timely basis
subject to availability of qualified personnel and the difficulty and
scope of the services to be provided.
(b) Unisys may assign, reassign and substitute personnel at any time and
may provide the same or similar services and materials to other clients.
(c) Information Services under this Agreement do not include any services
related to date data functionality, including services pertaining to Year
2000.
13. Alterations and Attachments
13.1 If Unisys is providing SURETY Support Services, Client will give
Unisys prior written notice of any proposed alterations or attachments to
equipment, Unisys has no obligation to provide SURETY Support Services for
non Unisys attachments, altered equipment or modified Software. Should
Unisys agree to maintain, support or correct altered Products, Unisys may
impose additional charges.
13.2 Unisys is not responsible for any malfunction, nonperformance or
degradation of performance of Products, supplies or maintenance support
materials caused by or resulting directly or indirectly from any
alteration or attachment unless Unisys is maintaining and Client has
notified Unisys of the alteration or attachment that causes the
malfunction.
13.3 Unisys warranties will not apply if attachment of non Unisys
equipment or alteration of Products directly or indirectly results in any
malfunction, nonperformance or degradation of performance of Unisys
Products; in addition, Client will be solely responsible for resulting
infringement, personal injury or damage to property and Products. 13.4 For
purposes of this Agreement, "alterations" includes, but is not limited to,
the incorporation of non Unisys components, boards and subassemblies into
equipment, as well as modifications to Software. "Attachments" includes,
but is not limited to, any non Unisys equipment, software, components or
devices which are connected to Unisys Products.
14. Limitation of Liability
14.1 UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, THE ENTIRE
LIABILITY OF UNISYS AND CLIENT'S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY
CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT OR IN TORT, WILL NOT EXCEED THE GREATER OF
(a) $100,000 OR (b) THE CHARGES PAID TO UNISYS DURING THE 24-MONTH PERIOD
IMMEDIATELY PRIOR TO CLIENT'S NOTICE PURSUANT TO SECTION 18.1 FOR THE
PRODUCTS OR SERVICES WHICH ARE THE SUBJECT MATTER OF OR DIRECTLY RELATED
TO THE CAUSES OF ACTION ASSERTED. THIS SECTION 14.1 DOES NOT APPLY TO
CLAIMS COVERED BY SECTION 15.
14.2 IN NO EVENT WILL UNISYS BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
USE, REVENUES, PROFITS OR SAVINGS, EVEN IF UNISYS KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (b) CLAIMS, DEMANDS OR ACTIONS
AGAINST CLIENT BY ANY PERSON, EXCEPT AS PROVIDED IN SECTION 15, OR (c)
LOSS OF OR DAMAGE TO CLIENT DATA FROM ANY CAUSE.
14.3 The entire liability of Unisys and Client's exclusive remedy for any
defective non Unisys Products provided under this Agreement is limited to
their return to Unisys within 90 days after shipment for refund of the
amount paid to Unisys for such Products (not including any amounts paid
for related services).
14.4 Unisys may direct Client to third parties having products or services
which may be of interest to Client for use in conjunction with the
Products. Notwithstanding any Unisys recommendation, referral or
introduction, Client will independently investigate and test non Unisys
products and services and will have sole responsibility for determining
suitability for use of non Unisys products and services. Unisys has no
liability with respect to claims relating to or arising from use of non
Unisys products and services, including, without limitation, claims
arising from failure of non Unisys products to provide proper time and
date functionality.
15. Patent, Copyright and Trade Secret Indemnification
15.1 Unisys, at its own expense, will defend and indemnify Client against
claims that Products furnished under this Agreement infringe a United
States patent or copyright or misappropriate trade secrets protected under
United States law, provided Client (a) gives Unisys prompt written notice
of such claims pursuant to Section 17, (b) permits Unisys to defend or
settle the claims, and (c) provides all reasonable assistance to Unisys in
defending or settling the claims.
15.2 As to any Product which is subject to a claim of infringement or
misappropriation, Unisys may (a) obtain the right of continued use of the
Product for Client or (b) replace or modify the Product to avoid the
claim. If neither alternative is available on commercially reasonable
terms, then, at the request of Unisys, any applicable Software license and
its charges will end, Client will stop using the Product, and Client will
return the Product to Unisys. Upon return of the Product, Unisys will give
Client a credit for the price paid to Unisys, less a reasonable offset for
use and obsolescence.
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15.3 Unisys will not defend or indemnify Client if any claim of
infringement or misappropriation (a) is asserted by a parent, subsidiary
or affiliate of Client, (b) results from Client's design or alteration of
any Product, (c) results from use of any Product in combination with any
non Unisys product, or (d) relates to a non Unisys Product alone.
15.4 This Section 15 states the entire liability of Unisys and Client's
sole and exclusive remedies for patent or copyright infringement and trade
secret misappropriation.
16. Termination and Cancellation
16.1 Unisys may suspend SURETY Support Services if any payment for such
service under this Agreement is past due more than 30 days.
16.2 Unisys may terminate SURETY Support Services or change support to
Client for a Product upon six months written notice or at the expiration
of the then-current term for SURETY Support Services, whichever occurs
earlier.
16.3 Either party may terminate any license for Software or any SURETY
Support Services upon expiration of the applicable term by providing 30
days prior written notice. Failure to give such notice will result in a
renewal or extension of the license or service in accordance with the
provisions of this Agreement. The licenses for any Software automatically
terminate upon Client's discontinuance of use of the SPU on which the
Software was licensed, at which time Client must either destroy or return
the Software and documentation to Unisys. Upon termination or
cancellation of SURETY Support Services, all diagnostics will be returned
to Unisys.
16.4 Without prejudice to other remedies, Unisys may cancel this
Agreement or any order placed under it, for default and repossess
Products (excluding only equipment for which the purchase price has been
fully paid), if, upon written notice, Client fails to (a) make any
payment identified as delinquent (including payment of charges for
services) within ten days or (b) cure any default relating to Sections 10
or 11 within 30 days.
16.5 Unisys may terminate SURETY Support Services on 30 days prior
written notice if Unisys determines that any alterations, attachments,
Client Software modification or failure to install a maintenance release
will interfere with the provision of such services.
16.6 Termination or cancellation of this Agreement will not affect any
rights or duties arising under it with respect to Proprietary Information
or security interest.
17. Notices
17.1 All notices required by this Agreement to be given to Client will be
sent to its address on the cover page of this Agreement.
17.2 All notices required by Sections 15 and 18.1 and all requests for
information under Section 8 will be sent by certified or registered mail
and, when given to Unisys, addressed to:
Office of General Counsel
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx
Xxxx Xxxx XX 00000
cc: Regional Vice President
17.3 All other notices to Unisys will be sent to the Unisys office which
has been servicing Client.
18. Dispute Resolution
18.1 Disputes and Demands - ANY CLAIM OR CONTROVERSY RELATED TO OR
ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT OR IN TORT ("DISPUTE"),
WILL BE RESOLVED ON A CONFIDENTIAL BASIS ACCORDING TO THE FOLLOWING
PROCESS, WHICH EITHER PARTY MAY START BY DELIVERING TO THE OTHER PARTY A
WRITTEN NOTICE DESCRIBING THE DISPUTE AND THE AMOUNT INVOLVED ("DEMAND").
18.2 Negotiation and Meditation - AFTER RECEIPT OF A DEMAND, AUTHORIZED
REPRESENTATIVES OF THE PARTIES WILL MEET AT A MUTUALLY AGREED UPON TIME
AND PLACE TO TRY TO RESOLVE THE DISPUTE BY NEGOTIATION. IF THE DISPUTE
REMAINS UNRESOLVED AFTER THIS MEETING, EITHER PARTY MAY START MANDATORY
NON-BINDING MEDIATION UNDER THE COMMERCIAL MEDIATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION (AAA).
18.3 Arbitration - IF THE DISPUTE REMAINS UNRESOLVED 45 DAYS AFTER THE
RECEIPT OF THE DEMAND, EITHER PARTY MAY START BINDING ARBITRATION UNDER
THE COMMERCIAL ARBITRATION RULES OF THE AAA. THE ARBITRATION WILL BE
BEFORE ONE ARBITRATOR: HOWEVER, BEFORE THE SELECTION OF THE ARBITRATOR, A
PARTY (WHOSE IDENTITY WILL NOT BE REVEALED TO THE ARBITRATORS) MAY
REQUIRE, AT ITS SOLE ADDITIONAL EXPENSE, A THREE ARBITRATOR PANEL. AT
LEAST ONE ARBITRATOR WILL BE AN ATTORNEY. NO STATEMENTS BY, OR
COMMUNICATIONS BETWEEN, THE PARTIES DURING NEGOTIATION OR MEDIATION, OR
BOTH, UNDER SECTION 18.2, ABOVE, WILL BE ADMISSIBLE FOR ANY PURPOSE IN
ARBITRATION. THE ARBITRATOR(S) WILL HAVE NO AUTHORITY TO AWARD PUNITIVE
DAMAGES OR ANY OTHER MONETARY RELIEF NOT MEASURED BY THE PREVAILING
PARTY'S ACTUAL DAMAGES (ADJUSTMENTS FOR TIME VALUE OF MONEY PERMITTED),
AND WILL NOT MAKE ANY DECISION INCONSISTENT WITH THE TERMS AND CONDITIONS
OF THIS AGREEMENT. EACH PARTY WILL BEAR ITS OWN INTERNAL EXPENSES AND
ATTORNEY'S FEES.
Page 8 of 17
18.4 Court - NOTHING IN THIS SECTION 18 WILL PRECLUDE A PARTY'S RECOURSE
TO A COURT OF COMPETENT JURISDICTION TO (a) ENFORCE THE TERMS OF, OR AN
ARBITRATION AWARD UNDER, THIS SECTION; (b) SEEK TEMPORARY EQUITABLE
RELIEF NECESSARY TO PROTECT ITS INTERESTS; OR (c) RECOVER SPECIFIC
PROPERTY, INCLUDING AN ACTION IN REPLEVIN.
18.5 Time Limit - NEITHER ARBITRATION UNDER THIS SECTION NOR ANY LEGAL
ACTION, REGARDLESS OF ITS FORM, RELATED TO OR ARISING OUT OF THIS
AGREEMENT MAY BE BROUGHT MORE THAN 2 YEARS AFTER THE CAUSE OF ACTION
FIRST ACCRUED, EXCEPT IF A DEMAND IS MADE WITHIN 45 DAYS BEFORE THE END
OF THIS 2 YEAR PERIOD, THE PARTIES WILL HAVE 60 ADDITIONAL DAYS FROM THE
DEMAND TO START ARBITRATION UNDER THIS AGREEMENT.
19. Other Provisions
19.1 All risk of loss or damage to Products will pass to Client upon
delivery to Client's location.
19.2 Neither party will be liable for failure to fulfill its obligations
when due to causes beyond its reasonable control.
19.3 Any failure or delay by either party in exercising any right or
remedy will not constitute a waiver.
19.4 THIS AGREEMENT WILL BE GOVERNED BY THE LOCAL LAW OF THE COMMONWEALTH
OF PENNSYLVANIA.
19.5 This Agreement constitutes the entire agreement between the pates
with respect to the Products and services provided hereunder and
supersedes all prior proposals and agreements, both written and oral, and
all other written and oral communications between the parties. Statements
made to you in the course of this sale are subject to the Year 2000
Information and Readiness Disclosure Act (15 U.S.C. 1-note). In the case
of a dispute, this Act may reduce your legal rights regarding the use of
any such statements, unless otherwise specified by your contract or
tariff. The terms and conditions of this Agreement will supersede all
other terms and conditions submitted by Client, including any preprinted
terms on any Client purchase orders,
19.6 Unisys may assign this Agreement or its interest in any equipment,
or assign the right to receive payments, without Client's consent, Any
such assignment, however, will not change the obligations of Unisys to
Client. Client will not assign or transfer its rights or obligations
under this Agreement without prior written consent of Unisys. Any
assignment or transfer prohibited by this provision will be void. Unisys
may subcontract any services described in this Agreement to third parties
selected by Unisys.
19.7 The terms and conditions of this Agreement may be modified only by a
writing signed by a Unisys Vice President, General Manager or Contracts
Manager.
19.8 Each paragraph and provision of this Agreement is severable, and if
one or more paragraphs or provisions are declared invalid, the remaining
provisions of this Agreement will remain in full force and effect.
19.9 Products and services provided under this Agreement may be subject
to U.S. and other government export control regulations. Client assures
that it will comply with all applicable export laws and regulations
related to the use, disclosure, export, or reexport of these Products and
services.
Page 9 of 17
Agreement Number
UNISYS Equipment Sale Schedule -----------------------------------
Equipment Location
------------------------------------------------------------------------------------------------------------------------------------
Southern Community Bank and Trust, 00000 Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
List of Products Applicable to this Agreement
------- ------------------- -------------------------- ---------- -------- --------- ------------- --------- ------------ ----------
Item Style Description Xxxxxxxx X0X Quantity Unit Client Installation Total
no. ready purchase install- Charge purchase
price able price
------- ------------------- -------------------------- ---------- -------- --------- ------------- --------- ------------ ----------
Page Page
subtotal subtotal--
Installation
charge Purchase
$ price
$
------------ ----------
Total Total
installation purchase
charge price
$ $
------------ ----------
Other
$
---------------------------
Grand total
$
---------------------------
Less: down payment
$
---------------------------
Total
amount due
$
--------------------------
Service Warranty
Unisys will provide a Service Warranty for equipment designated A, B, C or D in
the Warranty column. Support Center Service for Client installable equipment is
included in the Service Warranty for 90 days from the Installation Date. Service
Warranty also includes Mail-In Service or Equipment On-Call Remedial Maintenance
according to the following description:
For equipment designated "A" which is within 60 miles of the center of a Unisys
concentration city, Unisys will provide Same Day Service(2). For equipment
designated "A" which is more than 60 miles from the center of the nearest Unisys
concentration city and for equipment designated "B," Unisys will provide Next
Day Service(1). For equipment designated "C," Unisys will provide Second Day
Service(1). For equipment designated "D," Unisys will provide Mail-In Service.
The number immediately following the A, B, C or D designation identifies the
number of months, following the Installation Date, that the Service Warranty
will be performed.
1) Refer to SURETY "Definitions and Service Descriptions".
2) Second Day Service means Unisys will make every reasonable effort to respond
to on-site service requests two business days from call placement during the
PPM.
Page 10 of 17
Agreement Number
UNISYS Equipment Sale Schedule -----------------------------------
Equipment Location Xxxx To Location Service Level
-------------------------------------------- ----------------------------------- -----------------------------------
(C) Comprehensive Platinum
(G) Comprehensive Gold
(P) Performance Gold
(S) Performance Silver
(A) Partner Silver
-------------------------------------------- ----------------------------------- (B) Partner Bronze
Administrator Telephone number Administrator Telephone number
------------------------------------------------------------------------------------------------------------------------------------
Initial Term (Check if more than one year) Annual rate increase cap SURETY Support Services
[ ] 2-Years [ ] 3-Years [ ] Other: Years (3-year initial term or longer) Commencement Date
------------------------------------------------------------------------------------------------------------------------------------
Service Access (Check one) Billing period (Check one)
[ ] Standard [ ] Premium [ ] Quarterly [ ] Annual [ ] Other:
List of Products Applicabel to this Agreement
------------------ -------------- ---------------- -------------- --------------- ---------------- ---------------- ------------
Level Style Description Quantity Monthly Warranty Monthly SURETY
(Include Service Upgrade Unit charge Total charge
vendor name Warranty Total charge
and model if Upgrade
non Unisys Unit charge
product)
------------------ -------------- ---------------- -------------- --------------- ---------------- ---------------- ----------------
Page subtotal - Upgrade charges Page subtotal - Monthly charges
$ $
--------------- ---------------- ---------------- ----------------
Total upgrade Total montly
charges charges
$ $
--------------- ---------------- ---------------- ----------------
Other Other
$ $
--------------- ---------------- ---------------- ----------------
Upgrade Grand Grand Total
Total $
$
--------------- ---------------- ---------------- ----------------
Charges
If Client is ordering SURETY Support Services for equipment that also has a
Service Warranty Period, the following applies. During the Service Warranty
Period, or any portion of this period, the equipment receives the Surety Support
Services ordered. The Monthly SURETY charge for equipment will not apply during
the Service Warranty period; however, the Monthly Service Upgrade charge will
apply.
Page 11 of 17
Definitions and Service Descriptions
--------------------------------------------------------------------------------
A. Definitions
Principal Period of Maintenance ("PPM") means 8:00 AM to 5:00 PM, Client's local
time, Monday through Friday, excluding Unisys designated holidays.
Off Hours means all hours other than the PPM.
Client Operational Hours ("COH") means all times when Client uses the Products.
Failed Unit means a unit of equipment enrolled under SURETY Support Services,
which is deemed eligible by Unisys for exchange, that is identified by Client as
not in working order.
Exchange Unit means new, repaired, or previously used equipment in working
order that Unisys conveys to Client as a replacement for a Failed Unit. The
Failed Unit will become the property of Unisys upon Client's receipt of the
Exchange Unit or, if later, upon receipt of the Failed Unit by Unisys. Client
warrants that title to the Failed Unit, and Unisys warrants that title to the
Exchange Unit, will be free and clear of all claims, liens, and encumbrances
including security interests.
Same Day Service means Unisys will make every reasonable effort to respond to
Client's requests for on-site SURETY Support Services within four (4) hours
provided the request is received no later than four (4) hours prior to the end
of Client's hours of coverage.
Next Day Service means Unisys will make every reasonable effort to respond to
Client's request for on-site SURETY Support Services received during a PPM no
later than the next PPM.
B. Service Descriptions
Unless specified on the Schedule or in this Section, the Initial Term for SURETY
Support Services will be 12 months and will commence on the later of the
Installation Date of the applicable Products or the date Unisys accepts the
Services order. Unless specified on the Schedule. the Initial Term of SURETY
Support Services for Products added to a system already enrolled under SURETY
Support Services will be coterminous with the applicable term of the Services on
that system and, for purposes of changes to SURETY Support Service charges, will
be deemed to have the same commencement date as the applicable term of the
Services on that system. Following the Initial Term, SURETY Support Services
will continue on an annual renewal basis at Unisys then-current prices until
terminated or canceled according to the terms of this Agreement. The specific
services for each Service Level are identified on the next page.
1. Support Center Services provides assistance by electronic or voice
communication during the PPM on operating the Products, identifying Product
errors or malfunctions and advising on known detours, reporting software
problems via a User Communication Form (UCF), and determining the need for
on-call remedial service. Support Center Services during Off Hours consist of
expediting response to network down and system emergencies. Some non Unisys
products are not included in this service.
2. User Communication Services provides for reporting of suspected Product
errors or malfunctions or suggested new feature changes. Unisys will make
reasonable efforts to provide detours or corrections for Unisys Products or non
Unisys Products if available to Unisys at no additional charge from the vendor.
Client will install all error corrections. User Communication Services and UCF
submissions are available only for Products for which Unisys is then currently
providing development center support (also called engineering support).
3. Essential Engineering Changes are changes released by Unisys for
safety purposes or changes Unisys determines are essential to the performance of
equipment. Changes will be installed at a mutually acceptable time during the
applicable hours of coverage. For non Unisys equipment, Unisys will install
Essential Engineering Changes based upon the availability of required materials
at no cost to Unisys and additional labor charges will apply for Service Levels
other than Comprehensive Gold and Platinum.
4. Equipment Maintenance Parts are parts required for repairs made by Unisys
personnel.
5. Mail-In Service allows Client, at its expense and risk, to ship or to bring a
Failed Unit to the Unisys designated location. Within 7 business days of
receipt, Unisys repairs the Failed Unit or gives Client an Exchange Unit.
6. Software Maintenance Releases are error corrections and maintenance releases
that Unisys develops or provides for currently supported Software level(s).
Unisys licenses these releases only for use on the designated computer system(s)
under the applicable license agreement. Client will install all applicable error
corrections and maintenance releases.
7. Electronic Self Services provides Client with access to an Internet web site
to place equipment service and Software support requests, to obtain information
on known errors and corrections, and to get information on Unisys products and
services.
8. Advance Exchange Service allows Client to notify the Unisys designated point
of contact of a Failed Unit enrolled in the Service. Upon notification, Unisys
will ship an Exchange Unit to the Client using a next day delivery service.
Client will install the Exchange Unit and, at its expense and risk, ship the
Failed Unit to Unisys within 14 days after Client's receipt of the Exchange
Unit. Advance Exchange Service is limited to selected equipment.
9. Equipment On-Call Remedial Maintenance includes on-site repair or Exchange
Unit service, at Unisys option, of equipment, if a problem remains unresolved
after Client has utilized Support Center Services as prescribed.
10. Electronic On-Site Services allows the Support Centers to receive system
data from Client and perform remote failure analysis. Client will supply the
equipment, software, and communication facilities to use the electronic support
service capabilities of the Products as outlined in the Unisys product support
plan.
11. Equipment Preventive Maintenance, including the installation of engineering
changes deemed appropriate by Unisys, will be performed at Client's location
according to the manufacturer's recommendations at a mutually acceptable time
during the applicable hours of coverage.
12. Systems Operations Review provides that Unisys will meet with Client's
personnel once annually, at a mutually acceptable location and time, to conduct
computer systems operation reviews with respect to the Products. Client is
responsible for scheduling the meeting. This service applies to systems
designated by Unisys as enterprise servers or mainframes.
13. Software On-Call Support provides on-site service if Unisys determines that
a Software problem remains unresolved and on-site assistance is required, after
Client has used Support Center Services as prescribed. Desktop products are not
included in this service.
14. Equipment On-Call Remedial Maintenance Guaranteed Response means that if
Client is located within a 60 mile radius from the center of a Unisys
concentration city, Unisys commits to have a client service representative
arrive at Client's site within two (2) hours during PPM and within three (3)
hours outside of PPM. Response is measured from the time that Unisys receives
the request for service from Client until Unisys arrives at Client's site. If
Unisys moves its concentration city or Client relocates its site so that
Client's site is no longer within a 60 mile radius from the center of a Unisys
concentration city, Unisys reserves the right to adjust or eliminate the Service
Xxxxx.
00. Support Center Guaranteed Response (available only during the PPM) provides
that Unisys will respond to Client's declared emergencies no later than one (1)
hour after receipt of Client's request at the Support Center designated by
Unisys.
C. Descriptions of Service Access
Standard Access to Support Center Services provides Client with unlimited use of
Electronic Self Services. Voice contacts are chargeable on a per call basis at
Unisys then-current rates.
Premium Access to Support Center Services provides Client with unlimited use of
Electronic Self Services and an unlimited number of voice contacts with the
Unisys Support Centers.
D. Descriptions of Response to On-Call Service Requests
Performance Silver provides Next Day Service for Equipment On-Call Remedial
Maintenance.
Performance Gold and Comprehensive Gold provide Same Day Service for Equipment
On-Call Remedial Maintenance.
Comprehensive Platinum provides Equipment On-Call Remedial Maintenance
Guaranteed Response.
Page 12 of 17
Unisys SURETY Support Servcie Levels
--------------------------------------------------------------------------------
The Service Levels as described below are cumulative (e.g., the services defined
under Performance are in addition to those defined under Partner). Not all
services and Service Levels are available on all Products; please see the
Service Descriptions for additional details. The hours of coverage for
Partner and Performance Service Levels are during the PPM. The hours of
coverage for Comprehensive Service Levels are during the COH, unless
designated PPM only. Individual Unisys SURETY Support Services contained
in a higher Service Level than contracted are provided at Client request, as
available, at then-current Unisys conditions and charges.
--------------------------------------------------------------------------------
Service Levels
Comprehensive - Platinum
Equipment On-Call Remedial Maintenance Guaranteed Response
Support Center Guaranteed Response (PPM only)
Comprehensive - Gold
Systems Operations Review
Software On-Call Support
Performance - Silver/Gold
Equipment On-Call Remedial Maintenance
Electronic On-Site Services
Equipment Preventive Maintenance
Partner - Silver
Advance Exchange Service
Partner - Bronze
[GRAPH]
Support Center Services
User Communication Services
Essential Engineering Changes
Equipment Maintenance Parts
Mail-In Service
Software Maintenance Releases
Electronic Self Services
--------------------------------------------------------------------------------
Page 13 of 17
Agreement Number
UNISYS Equipment Sale Schedule -----------------------------------
Equipment Location
Xxxxx River Bankshares, Inc. 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
List of Products Applicable to this Agreement
------------------------------------------------------------------------------------------------------------------------------------
Item Style Description Quantity Warr. Y2K License License Initial Installation
no. ready plan charge license charge
(Specify charge
1 NTS40-L NT4.0 S/W 4 R ETP 4420
2 NDP250-INT DOC PROC S/W 1 R term) 6000
3 XXX00-X XX S/W 1 R OTC 0
4 DPC300-DPT DEPCON S/W 1 R OTC 2420
5 DPC300-AFK DEPCON DEPT S/W 1 R OTC 825
OTC
OTC
These license are being paid on customers behalf by
information Technology, Inc. (ITC) provided that customer
has executed the necessary ITI agreements.
-------- ------------ --------------------------------- --------- ------- ------- ------------ ------------ ----------- ------------
Page Page Page
subtotal - subtotal - subtotal -
License Initial Installation
Charge license charge
charge
$ 13,665 $ $
------------ ----------- ------------
Total Total Total
license initial installation
charge license charge
charge
$ 13,665 $ $
------------ ----------- ------------
Grand total
$ 13,665
------------ ----------- ------------
License Plans
1. Licenses of Software for which Unisys charges either an Annual License Charge
(ALC) or a Montly License Charge (MLC) will have an initial term of twelve
months commencing on the Installation Date. The MLC license will continue on a
month-to-month basis and the ALC will renew annually until the license is
terminated or cancelled in accordance with the Termination and Cancellation
section of this Agreement.
2. For certain licenses, Unisys may charge an Initial License Charge which will
include the first monthly or annual charge.
3. Extended Term Plan (ETP): Certain licenses of Software for which Unisys
charges a single fee may have a 36 or 60 month extended term commencing on the
Installation Date. Upon expiration of the extended term, the license will be
automatically continued on a month-to-month basis for a Monthly License Charge,
unless terminated in accordance with the Termination and Cancellation section of
this Agreement, or Client may pay another ETP fee for an additional extended
term, if available.
4. One Time Charge (OTC): For certain Software, upon payment of a one-time
charge (invoiced upon shipment of the Software), Unisys will license Client to
use the Software so long as Client continues to use the Software on the SPU on
which it was originally licensed for use.
5. Software that has no license charge listed on this Schedule will have a
license term which is coterminous with Client's possession and use of the
equipment on which the Software is installed.
Page 14 of 17
Agreement Number
UNISYS Equipment Sale Schedule -----------------------------------
Periodic Basis
------------------------------------------------------------------------------------------------------------------------------------
Item Type of services No. of Hourly Period Total hours Total periodic charge
no. personnel charge Days/Weeks/Months
------------------------------------------------------------------------------------------------------------------------------------
Page subtotal - Periodic
$
-------------------------
Grand total - Periodic
$
-------------------------
Fixed Charges
------------------------------------------------------------------------------------------------------------------------------------
Item Type of service Description Fixed charge
no.
------------------------------------------------------------------------------------------------------------------------------------
Page subtotal - Fixed
$
-------------------------
Grand total - Fixed
$
-------------------------
Information Services may also be called Professional Services or Systems
Services. Client will be invoiced for travel and lodging and premium service
charges in addition to those set forth above, as applicable.
Page 15 of 17
Agreement Number
----------------
Description of Information Services
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 16 of 17
Agreement Number
----------------
Description of Information Services (Cont.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 17 of 17
