NCR MASTER SOLUTIONS AGREEMENT
Exhibit
99.2
XXX
XXXXXXXXXXX
Customer
Number: ____________
(For
NCR
Use)
NCR
MASTER
SOLUTIONS
AGREEMENT
This
Agreement between Thunderball Entertainment, Inc. (“you”), a Nevada corporation
with its chief executive office located at 000 Xxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxxxxx, XX 00000, and XXX XXXXXXXXXXX (“NCR”), 0000
XXXXX XXXXXXXXX XXXX., XXXXXX, XX 00000, is
effective as of June 8,
2005.
1.SCOPE
This
Agreement applies to Products which you acquire from NCR either directly
or
indirectly (e.g.,
through
a leasing company or other intermediary) for your internal business use.
This
Agreement does not authorize you to acquire Products for resale or
redistribution. The foregoing does not prohibit you from placing Products
at
third party locations for third party use pursuant to an Order (as defined
below), provided you retain title to the Equipment and do not sublicense
the
Software. “Products” include:
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Equipment,
which means units of hardware and peripheral
apparatus;
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Services,
which means Professional Services, Maintenance Services, software
support
services, and any other services which NCR may perform for
you;
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Software,
which means generally available computer programs and, for the
purposes of
Sections 2.2 and 4.0, Deliverables in the form of computer
programs;
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Deliverables,
which means specified tangible items (e.g.,
on
magnetic media or paper) or items that can be reduced automatically
to
tangible form (e.g., digital files sent electronically) that NCR
creates
for you in the course of providing Professional Services, but does
not
mean Equipment, Software (except as noted above) or Supplies;
and
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Supplies,
which means consumables such as paper products, ribbons, ink cartridges
and the like.
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By
itself, this Agreement does not constitute an obligation to acquire or provide
Products; a binding obligation will only be created when the parties
additionally sign a written document such as a purchase order, Addendum,
or
Statement of Work (“SOW”) (together, either collectively or individually, with
this Agreement, referred to as an “Order”). Each Order stands alone, serves as
the complete, integrated agreement for the Products ordered under it, and
replaces all other oral or written communications regarding those Products.
An
Order may be changed only by written agreement, and does not include any
preprinted terms or conditions not agreed upon in writing by both parties.
To
the extent an Order is inconsistent with the terms of this Agreement with
respect to Products, the terms of the Order shall govern. Either you or NCR
may
terminate the Agreement by providing thirty days written notice, but termination
will not end either party’s obligations under accepted Orders.
2.PRODUCTS
2.1 Professional
Services & Deliverables
You
may
acquire Professional Services such as consulting, research and program design
services from NCR through an SOW, which may also identify specific items
as
Deliverables. NCR grants you a nontransferable, nonexclusive, perpetual,
worldwide license to use non-software Deliverables but not for the benefit
of
any third party. NCR is free, with no right of accounting, to create similar
Deliverables and perform similar Services for itself and others, provided
that
it does not disclose your Confidential Information or incorporate your
trademarks. Notwithstanding the foregoing, NCR may grant you an exclusive
right
to acquire the Products for a defined period as set forth in an Order.
Deliverables NCR obtains from third parties are subject to any terms imposed
by
those suppliers. All licenses and rights related to an Order that NCR grants
are
conditioned upon your payment in full of undisputed amounts and compliance
with
all terms in such Order.
2.2 Software
License
Conditioned
on your payment in full of applicable license fees, NCR grants you a
non-transferable, non-exclusive license to use Software (but not Diagnostic
Tools) for internal use only. Software bearing the logo or copyright notice
of a
third party is subject to the third party’s license terms. Unless otherwise
specified in the Order, you may use Software only in object code form, unless
NCR provides it in source code form, on a single processing unit (e.g., on
a
per-kiosk basis) of the class and model for which you originally licensed
it.
You may modify provided source code to meet your business requirements, but
(a)
you may not distribute, license, or transfer the modifications to any third
party; (b) the modifications do not create any ownership or other intellectual
property right in or to the Software on your behalf; and (c) NCR will not
be
responsible for Product failures or errors resulting from the modifications,
and
you will indemnify and hold NCR harmless from any related loss or damage.
You
may not copy, transfer, disclose, sublicense or distribute Software to any
third
party or use it other than as allowed by the Order. You may transfer Software
to
your affiliates who agree to be bound by the Order and you may make a reasonable
number of backup copies. You may transfer Software installed on a piece of
Equipment to a third party along with that Equipment, as long as the third
party
agrees to the terms of the Order and pays any re-license fees that NCR may
assess. You will retain copyright notices and proprietary legends on all
copies
of Software. Software remains the property of NCR or its licensors. You will
not
take any steps (e.g.,
reverse
assembly or reverse compilation) to derive a source code equivalent of
Software.
2.3 Diagnostic
Tools
In
providing Products, NCR may include computer programs, data, documentation,
and
other material that NCR uses solely to diagnose the operation of Products
(“Diagnostic Tools”). Diagnostic Tools are the confidential intellectual
property of NCR and are not licensed or transferred to you. They may not
be
copied or used by anyone other than NCR without NCR's written consent. NCR
may
remove or change Diagnostic Tools without notice. DIAGNOSTIC TOOLS ARE PROVIDED
“AS IS.”
2.4 Delivery,
Title & Risk of Loss
NCR
will
make commercially reasonable efforts to deliver Products to the location
you
specify by the delivery date(s) in an Order. Title to Products (other than
Software and Deliverables licensed to you) and risk of loss pass to you and
delivery occurs when NCR has tendered the Products to: (a) the applicable
shipping agent (either selected by you as specified on the Order or selected
by
NCR) for delivery to you or your agent; or (b), if you request NCR to store
Products for you, the applicable storage facility. However, if you and NCR
sign
a Purchase Order Assignment as part of a leasing transaction, the terms of
such
Purchase Order Assignment will prevail over the terms of this Agreement with
respect to the passage of title to Products (other than Software and
Deliverables licensed to you) subject to such leasing transaction.
2.5 Warranty,
Maintenance & Other Services
During
the term of a warranty, NCR will provide standard warranty service in accordance
with the Order and NCR’s warranty policies provided to you. Warranty upgrades
may be available and will be governed by the Order. NCR will provide other
Services, such as installation and maintenance services, as set out in an
Order.
2.6 Your
Product Obligations
Successful
Product implementation depends on your knowledgeable selection and operation
of
the Products and your reasonable cooperation with NCR. Unless otherwise agreed
in an Order, your obligations include:
(a)
determining whether the Products as warranted will meet your requirements;
(b)
providing back-up equipment and services;
(c)
giving NCR requested information reasonably relevant to your use of the
Products;
(d)
obtaining necessary governmental permits and consents for your use of the
Products;
(e)
providing and maintaining an operating environment that conforms to published
specifications and documentation for the Products provided to you by NCR;
(f)
implementing and operating Products
and any
Software updates provided;
and (g)
testing and operating Software.
2.7 Data
You
are
responsible for data used in connection with a Product. Your responsibilities
include determining whether any privacy laws, regulations or duties apply
to the
data. You warrant that to the best of your knowledge there is no restriction
on
the processing or use of the data in connection with Products, and NCR will
have
no liability to you or any other person arising from NCR’s violation of any
restriction on the processing or use of such data while performing in accordance
with an Order.
3.PRICING,
PAYMENTS AND FINANCIAL SECURITY
3.1 Prices
& Payments
Unless
otherwise agreed in an Order, Services will be provided on a time and materials
basis, and NCR will invoice for Services and Deliverables monthly. You will
pay
NCR’s reasonable travel and living expenses associated with providing Services
as agreed by the parties. Equipment, Software and Supplies will be invoiced
on
shipment, unless NCR stores such Products for you, in which case NCR will
invoice you when storage begins. Prices do not include, and you will pay,
applicable freight, installation and distribution charges, as provided in
an
Order. Prices do not include, and you will pay, any sales, use and like taxes,
other than taxes on NCR’s net income. Additionally, if NCR stores Products at
your request, you will pay applicable storage fees. NCR may change its prices
and rates at any time; however, price and rate changes will not affect Orders
accepted prior to the effective date of the change. Unless otherwise provided
in
an Order, if you cancel or delay delivery, you will pay NCR’s invoice for
applicable cancellation or delay charges as provided in such Order. Payments
are
due upon your receipt of invoice. NCR will be entitled to late fees for payments
not received within 30 days after the date of the invoice, at the rate of
up to
1.5 percent per month, not to exceed any limit imposed by law.
3.2 Payment
Security
You
grant
NCR a purchase money security interest in ordered Products and will sign
and
provide, or authorize NCR to sign if such authorization is legally required,
a
financing statement that NCR may file to perfect its security interest. NCR
may
make its acceptance of Orders conditioned upon acceptable credit and payment
arrangements. Your failure to pay for Products as required by an Order will
entitle NCR to suspend shipment of Products, suspend Services, and reclaim
possession of Products for which full payment has not been received. On the
occurrence of either party’s bankruptcy or insolvency, all Orders will
automatically terminate unless the non-affected party elects to have any
such
Order continue.
3.3 Leasing
If
you
choose to lease Products from a third party, you and the third party will
execute an NCR-approved Purchase Order Assignment to permit NCR to sell the
Products and issue invoices directly to the third party. If you do not submit
a
fully executed Purchase Order Assignment to NCR prior to the first shipment
of
Products under an Order, NCR may (i) refuse to consent to such assignment
and
require payment in full in accordance with this Agreement, or (ii) condition
its
consent on receipt of additional documents and fees.
4.CONFIDENTIALITY
4.1
Confidential
Information
"Confidential
Information" is proprietary information disclosed by one party to the other,
related to the subject of an Order. Confidential Information disclosed in
documents or other tangible form must be marked as confidential at the time
of
disclosure. Confidential Information in oral or other intangible form must
be
identified as confidential at the time of disclosure, and summarized in tangible
form marked as confidential and delivered to the recipient within 10 days
after
disclosure. Confidential Information does not include information that is
or
becomes available without restriction to the recipient or another through
no
wrongful act. Software in human-readable form (e.g.,
source
code), NCR’s Logical Data Models and your data values stored in computers will
be considered Confidential Information whether or not marked as
such.
4.2
Obligation
& Duration
Each
party will take all commercially reasonable steps to prevent the disclosure
of
the other’s Confidential Information to third parties and employees who do not
have a need to know the Confidential Information, but may disclose it to
the
extent compelled by process of law. Except as expressly stated in the Order,
all
Confidential Information remains the disclosing party’s property. Upon the
disclosing party’s request, all Confidential Information (other than materials
that have been licensed to the recipient) will be destroyed or returned to
the
disclosing party. Unless otherwise agreed in an Order, all confidentiality
obligations under an Order will end three years after the date of first
disclosure, except that those with respect to software in human readable
form,
your data values and NCR’s Logical Data Models will continue
indefinitely.
4.3 Order
Confidentiality; Customer/Vendor References
Except
as
required by law, the parties will keep confidential the terms and conditions
of
Orders, including pricing. However, without revealing any specific terms
of an
Order, you may disclose that NCR is your vendor and NCR may disclose that
you
are an NCR customer, the Products you have purchased under an Order, the
value
of the Order and a general description of your intended use of those Products.
At NCR's request you may choose to participate in mutually agreed upon NCR
marketing activities, including participating in and providing quotes for
inclusion in press releases, participating in NCR print and television
advertisements, discussions with the media and business analysts, speaking
at
NCR and industry events, acting as a reference site for prospective NCR
customers, participating with NCR on industry award nominations and allowing
NCR
to document a case study of your use of NCR Products.
4.4 Subcontractors
and Consultants
Either
party may disclose Confidential Information to its majority-owned subsidiaries
who agree to the terms of the Order, and to its subcontractor employees who
agree in writing to confidentiality obligations consistent with this Agreement.
You may also disclose Confidential Information to your consultants solely
to
further your internal business purposes, provided they agree in writing to
be
bound by the terms of the Order, including its intellectual property and
confidentiality provisions. NCR will be an intended third party beneficiary
of
any such agreement, and will have the right to directly enforce it.
5.WARRANTIES
AND INDEMNITY
5.1 General
Warranty
The
parties represent and warrant that each has the right and authority to enter
into this Agreement, the full power and authority to grant the rights granted
by
this Agreement, and that entering into and carry out the terms and conditions
of
this Agreement will not violate or constitute a breach of any binding
obligation. The parties represent and warrant that each will comply with
all
applicable international, federal, state and local laws (and all corresponding
regulations/directives) that govern its conduct in connection with performance
under this Agreement.
NCR
warrants that: (a) Services will be provided in a professional manner consistent
with industry standards and NCR policies by trained and experienced personnel;
(b) Deliverables will substantially conform to the specifications included
in an
Order; (c) except for NCR's purchase money security interest, title to Equipment
and Supplies will be clear at time of delivery; (d) Equipment, Supplies and
Software media will be free from defects in material and workmanship; and
(e)
Equipment, Supplies and Software will substantially conform to published
documentation delivered with them.
5.2 Warranty
Period
Unless
otherwise specified in an Order, the warranty period for Equipment is 90
days
from the date of delivery; for Software, Deliverables, and Supplies is 30
days
from the date of delivery; and for Services is 30 days from the date of
performance. In the event that NCR procures hardware, software or other items
related to its delivery of the Products, NCR will, if and to the extent
permitted under the purchase agreement with the manufacture(s) and/or
licensor(s), pass through and hereby assigns to you all warranties provided
by
the manufacturer(s) and/or licensor(s) of such items.
5.3 Warranty
Remedies
If,
during the warranty period, a Product does not conform to its warranty and
you
provide NCR with notice of such nonconformance, NCR will repair or replace
nonconforming components or otherwise correct the nonconformity in accordance
with its standard warranty service terms as provided to you and the applicable
Order. If, for any reason, NCR does not conform a Product to its warranty
within
a reasonable time after notice, then you may accept it as is without further
recourse or you may, after written notice, return it and NCR will refund
the
amount it was paid for that Product. If NCR does not perform Services as
warranted and you provide prompt notice, NCR will use its best efforts to
reperform them. If NCR is unable to reperform Services as warranted within
a
reasonable time, you may obtain a refund of your payments to NCR for those
Services. A refund for an annuity Order for Services will not exceed your
advance payment to NCR for the then-current annual billing period. THESE
ARE
YOUR SOLE AND EXCLUSIVE WARRANTY REMEDIES.
5.4 Defense
of Infringement Claims
NCR
will
defend, at its expense, any claim or suit brought against you alleging that
a
Product infringes a patent, copyright or trade secret and will pay all costs
and
damages finally awarded as a result thereof, if you promptly notify NCR of
the
claim and give NCR reasonably requested information and cooperation and sole
authority to defend and settle the claim. In handling the claim, NCR may
obtain
for you the right to continue using the Product or replace or modify it so
that
it becomes non-infringing. If NCR is unable to reasonably secure those remedies,
and if you must discontinue use of the infringing Product, as a last resort
NCR
will refund, on a five-year, straight-line, depreciated basis, the purchase
price for infringing Equipment and license fees paid for infringing Software.
NCR is not obligated to indemnify you if the alleged infringement arises
from
the use of a Product in connection with goods or services not furnished by
NCR,
NCR's compliance with your designs, specifications or instructions, or
modifications by anyone other than NCR or its subcontractors. This Section
5.4
states NCR's entire liability for claims of infringement or misuse of
intellectual property.
5.5 Exclusions
Equipment
may include used components, which are warranted to function equivalent to
new.
Problems not covered by NCR’s warranties or maintenance agreements include those
resulting from: unauthorized alterations or attachments; negligence, abuse
or
misuse, including failure to operate the Product in accordance with
specifications or interface requirements; improper handling; failure of goods
or
services not obtained from NCR or not subject to a then-effective NCR warranty
or maintenance agreement; improper use or storage of Supplies; and, fire,
water,
acts of God or other catastrophic events. NCR makes no warranty that data
or
analysis is correct or accurate or that a Product will yield any specific
business result, even if an expected business result is identified in an
Order.
NCR does not warrant that Products will operate uninterrupted or error free,
or
that all deficiencies, errors, defects or nonconformities will be corrected.
Unless otherwise agreed to in writing, NCR will have no liability for failure
to
deliver Products by dates set forth in an Order. EXCEPT
AS OTHERWISE STATED HEREIN OR AGREED UPON IN AN ORDER, THERE ARE NO WARRANTIES,
ORAL OR WRITTEN, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
0.XXXXXX
LIABILITY LIMITATIONS AND EXCLUSIONS
NEITHER
PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME, OPPORTUNITY
OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE,
EQUITY OR OTHERWISE. NEITHER PARTY WILL BE CUMULATIVELY LIABLE TO THE OTHER
FOR
ANY AMOUNT GREATER THAN THE PURCHASE PRICE, FEES AND CHARGES SET FORTH IN
THE
APPLICABLE ORDER. Notwithstanding the above: (a) a party’s liability for
personal injury, including death, will be unlimited to the extent caused
by that
party’s negligence or willful misconduct; (b) a party’s liability for physical
damage to tangible real or personal property will be the amount of direct
damages, to the extent caused by that party’s negligence or willful misconduct,
up to one million dollars per occurrence; (c) a party’s obligation to indemnify
for intellectual property infringement is not limited by this Agreement;
and (d)
subject to the limitations of Section 7.0 with respect to punitive damages,
a
party’s liability for violating the other’s intellectual property rights or for
intentionally breaching the provisions of Sections 4.0 (Confidentiality)
or 2.7
(Data), is not limited by this Agreement. EACH CLAUSE OF THIS SECTION IS
SEPARATE FROM THE OTHERS AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS
ELSEWHERE IN THIS AGREEMENT, AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF A REMEDY OR TERMINATION OF AN ORDER.
7.DISPUTE
RESOLUTION
Any
controversy or claim between the parties whether arising under this Agreement
or
otherwise will be settled by arbitration before a sole arbitrator, who is
an
attorney and who will be jointly appointed by the parties, under the then
current Commercial Arbitration Rules of the American Arbitration Association.
If
the parties cannot agree on an arbitrator, either party may request the American
Arbitration Association to appoint an arbitrator which appointment will be
final. The duty and right to arbitrate will extend to any employee, officer,
director, shareholder, agent or affiliate of the parties. The decision and
award
of the arbitrator will be final and binding, and the award so rendered may
be
entered in any court having jurisdiction thereof. The arbitrator is directed
to
hear and decide dispositive motions in advance of the hearing on the merits
by
applying the applicable law. The arbitration will be held in the US headquarters
city of the party not initiating the claim. The obligation to arbitrate shall
not apply to claims for misuse or infringement of a party’s intellectual
property rights. Notwithstanding the foregoing, either party may seek an
injunction in court to prevent misuse of its intellectual property pending
the
appointment of an arbitrator. New York law will govern the interpretation
and
enforcement of this Agreement; however, the Federal Arbitration Act will
govern
issues of arbitrability. Neither party may bring a claim more than two years
after a cause of action accrues. The arbitrator will enforce the terms of
an
Order, and will have no authority to award punitive damages or other
non-compensatory damages or award damages in excess of the limitations and
exclusions set forth in this Agreement or grant relief inconsistent with
the
terms of an Order.
8.MISCELLANEOUS
TERMS
8.1 Non-Waiver;
Assignment
Failure
to enforce any term in an Order is not a waiver of future enforcement of
that or
any other term. Other than as expressly stated in an Order, neither party
may
assign this Agreement, an Order, or rights or obligations under them without
written consent from the other, except: (a) either party may assign this
Agreement or an Order to a corporate affiliate (provided that your assignment
of
such Order is subject to NCR’s credit approval and written receipt of the
address of the affiliate’s chief executive office); and (b) NCR may use
subcontractors or resellers to fulfill some or all obligations. Subject to
the
foregoing, this Agreement will be binding upon and inure to the benefit of
the
parties’ successors and assigns.
8.2 Severability
If
any
provision in an Order 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 the Order will remain
in
full force and effect.
8.3 Notices
All
notices (including requests, consents or waivers) made under this Agreement
or
any Order 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; provided, however, that notices delivered by electronic mail or
other
electronic means will not be effective unless the sender receives
acknowledgement of receipt from the recipient, which acknowledgement will
not
include any machine-generated automatic reply. 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, XXX Xxxxxxxxxxx, Xxxxxx, XX 00000; Fax:
(000) 000-0000; Email: xxx.xxxxxxx@xxxxxxXX.xxx.xxx.
Either
party may change its notice address by proper notice.
8.4 Geographic
Scope
This
Agreement applies only to the United States; NCR will not provide Products
or
warranty service hereunder outside of the United States. You may not export
Products without appropriate approvals from the United States and foreign
governments.
8.5 Force
Majeure
Except
for your obligations to make payments in accordance with the terms of an
Order,
neither party is liable for failing to fulfill its obligations due to acts
of
God or government, civil commotion, military authority, war, riots, strikes,
fire, or other causes beyond its reasonable control.
8.6 No
Third-Party Beneficiaries
NCR
and
you intend that this Agreement will not benefit or create any right or cause
of
action in or on behalf of any person or entity other than the parties
hereto.
8.7 Survival
Terms
intended by the parties to survive termination of an Order will survive such
termination. By way of example and without restricting the foregoing, Sections
4, 5, 6 and 7 shall survive the termination of this Agreement or any Order
hereunder.
Agreed
and Accepted
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You
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XXX
Xxxxxxxxxxx
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By:
/s/ Xxxxxx
Eibensteiner____________________________________
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By: /s/ Xxx
Bogan______________________________________________
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Printed:
____________________________________________________
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Printed:
______________________________________________________
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Title: ______________________________________________________
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Title: ________________________________________________________
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Date:
______________________________________________________
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Date:
________________________________________________________
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