EXHIBIT 10.25
ADDENDUM TO
VALUE ADDED RESELLER AGREEMENT
Reseller: CPS Systems Effective Date: ______________
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
NCR Business Unit:
Imaging and Payment Systems
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
This Reseller Addendum between CPS Systems ("you" and/or "Reseller") and XXX
Xxxxxxxxxxx ("NCR") contains the terms on which Reseller may acquire certain
PRISM and CAPRS software programs from NCR and remarket those products to
others. This Addendum is an attachment to the Terms and Conditions of an XXX
Xxxxxxxxxxx Value Added Reseller Agreement signed by CPS Systems on April 1,
1993.
PAGES 1 THROUGH 8 AND EXHIBITS A AND B ARE PART OF THIS RESELLER ADDENDUM. This
Addendum states additional terms and conditions between us concerning PRISM and
CAPRS Software and supersedes all prior oral and written communications between
us concerning this subject. In consideration of the execution of this Addendum
by NCR and of the sale of PRISM and CAPRS software programs to you under this
Addendum, you hereby release NCR from all claims and demands you may have
against either of them as of the date you sign this Addendum.
CPS SYSTEMS, INC. XXX XXXXXXXXXXX
(Reseller)
By: /s/ Xxxxx X. Xxxxxxx Xx. By: /s/ Xxxx X. Xxxxxxx
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Printed: Xxxxx X. Xxxxxxx Xx. Printed: Xxxx X. Xxxxxxx
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Title: President & COO Title: General Manager
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Date: June 14, 1996 Date: June 13, 1996
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FOR NCR USE ONLY
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Addendum Number:
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1.0 DEFINITIONS
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1.1 Refer to your Value Added Reseller Agreement
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1.2 Refer to your Value Added Reseller Agreement
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1.3 Refer to your Value Added Reseller Agreement
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1.4 "Programs" in this Addendum means the NCR PRISM and CAPRS software
listed in Exhibit A and other related NCR Programs which support PRISM and CAPRS
software.
1.5 Refer to your Value Added Reseller Agreement
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1.6 Refer to your Value Added Reseller Agreement
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1.7 "NCR Confidential Materials" means this Addendum, NCR PRISM and CAPRS
software, other related NCR Programs and all copies of or information contained
in NCR Software, and all other material that NCR furnishes to you that NCR has
marked "Confidential" or the like.
1.8 "NCR Software" means all computer programs and related documentation
that NCR furnishes to you -- whether those programs are referred to as
"software", "firmware", "object code", "microcode", or otherwise; wherever
resident and on whatever media; and whether separately licensed, furnished as
part of Equipment, provided as a result of software services, or otherwise
furnished. NCR Software may include computer programs and related documentation
that third parties own and that NCR furnishes under license from the owner.
Source code to Programs listed in Exhibit A shall not be a part of this
Addendum.
1.9 Refer to your Value Added Reseller Agreement
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1.10 Refer to your Value Added Reseller Agreement
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1.11 "Support Services" means all the supporting services not provided by
you following the sale of the NCR Products including but not restricted to:
preparation, installation, annual maintenance, updates, customization,
documentation and future sales of NCR Products.
1.12 "Value Added Reseller Agreement" means the master Agreement signed on
April 1, 1993 by Reseller. (This agreement is an Addendum to the Value Added
Reseller Agreement.)
1.13 "Targeted Market" is the specific market of high-end imaging products
for financial institutions of total assets in excess of $2 billion dollars.
Resellers are restricted from competing against NCR for end-users in this
Market.
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2.0 AUTHORIZATION OF RESELLER
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2.1 Under the terms of this Addendum, NCR authorizes you as a Reseller of
NCR PRISM and CAPRS software Programs and related NCR Programs and grants you
the right to purchase for resale (or license for sublicense, as applicable)
those Programs.
2.2 Refer to your Value Added Reseller Agreement
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2.3 Refer to your Value Added Reseller Agreement
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2.4 Refer to your Value Added Reseller Agreement
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3.0 DUTIES OF RESELLER
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Refer to your Value Added Reseller Agreement
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4.0 CONDITIONS ON THE RESALE OF NCR PROGRAMS
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4.1 Refer to your Value Added Reseller Agreement
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4.2 Refer to your Value Added Reseller Agreement
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4.3 Except with NCR's prior written consent, you will not remarket
Products -- either directly or through an intermediary -- to federal government
agencies or NCR Targeted Market.
4.4 Refer to your Value Added Reseller Agreement
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4.5 Refer to your Value Added Reseller Agreement
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4.6 You will offer and provide to your End-user customers adequate Support
Services for the Programs you furnish, in a manner reasonably calculated to
ensure a high level of customer satisfaction
4.6.1 All End-Users must be informed in advance of the sale the name
of the authorized NCR Reseller providing Support Services.
4.6.2 The Support Services provider(s) must (i) receive all Product
information from you before the sale; and (ii) the Support Services
provider must receive all applicable Program and End-User system
information following the sale.
4.6.3 You will contract directly with the authorized NCR Support
Services provider(s) concerning any services required to complete the
sale and installation of the Products.
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4.6.4 The NCR Support Services provider(s) will contract directly
with the End-User concerning on-going Program's Support Services.
4.6.5 NCR will supply you, upon request, with the current list of
NCR Support Services providers and update the list as applicable.
4.7 If you make any Alteration to a Product bearing an NCR Xxxx, then
before furnishing that Product to your customer, you agree to notify that
customer in writing (i) of the nature of the Alteration, (ii) that NCR's
warranties do not cover the Alteration, and (iii) that NCR may not maintain or
support the altered Product. The Programs listed in Exhibit A may or may not
contain an NCR Xxxx.
4.8 Refer to your Value Added Reseller Agreement
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4.9 You agree to make no warranty of any kind to your customers on behalf
of NCR, and to include in your written terms and conditions of sale a
conspicuous statement that the manufacturer of the Programs disclaims all
implied warranties, including the implied warranties of merchantability and
fitness for a particular purpose. NCR does not warrant, maintain or support
Programs listed in Exhibit A.
4.10 Refer to your Value Added Reseller Agreement
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4.11 You are responsible for the sale of all Products and Programs
necessary to support the Programs listed in Exhibit A which are provided by
third parties. You are responsible whether or not you recommended them or
assisted in their evaluation, selection, or supervision. The failure of those
third party products and programs or their suppliers to meet End-user's
requirements will not effect your obligations under this Addendum. Third party
software provided with the NCR licensed software must be sold by you and
supported by the Support Services provider(s).
4.12 NCR shall provide NCR Programs listed in Exhibit A to you for your
End-Users as follows:
4.12.1 Orders: You must mail or FAX a copy of the End-user order to
a designated NCR Image and Payment Systems-Cortland (see Section 15.7)
order representative in order to calculate the appropriate royalty on
NCR Programs based on Exhibit A.
4.12.2 Prices: You may market the NCR Program listed in Exhibit A at
your own prices to your End-users. Exhibit A lists the suggested
retail price. If you change the list price or its entire pricing
model, which you may do at your own discretion, you will still be
responsible for the same royalty payment per license sold. All
licenses granted under this Addendum are subject to the payment of the
royalty prices. All prices are calculated and payable in US dollars
and do not include any applicable sales, use, transfer, excise,
customs, or similar taxes.
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4.12.3 Payment: Exhibit A lists the appropriate royalty payment
schedule per license. Royalties are due to NCR Image and
Payments-Cortland (see Section 15.7) thirty (30) days after the last
day of the installation of the NCR Programs on the Equipment. The
unsuccessful operation of the Programs by the End-user will not
prevent the payment of the appropriate license royalties once the
Programs have been installed.
4.12.4 Expenses: In general, each party will bear its own expenses
related to this Addendum. However, if you have NCR personnel provide
training or consulting services, except for purposes of your training
(see Section, 2.0), NCR will invoice Reseller time and material
charges plus reasonable travel and lodging expenses not to exceed
NCR's standard expense policy then in effect.
4.12.5 Record keeping and audit: You will implement and maintain the
accounting and record keeping procedures necessary to demonstrate
compliance with its financial obligations under this Addendum. NCR
may, at its expense and through its independent auditors, audit the
other's records to determine the audited party's compliance with its
financial obligations. Such audits may take place on reasonable notice
(not less than 30 days), during normal business hours, not more than
once in a calendar year, covering a period no greater than 2 years
immediately preceding the date of audit, and may not interfere
unreasonably with the audited party's business. The audited party may
require the auditor to sign a confidentiality agreement on
substantially the terms of the confidentiality section 12 of this
Addendum, for information received under the audit. This section will
survive for two (2) years any termination of this Addendum.
4.13 You will remarket NCR Programs at the prices you choose.
5.0 RE-LICENSING NCR SOFTWARE
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Refer to your Value Added Reseller Agreement
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6.0 YOUR PURCHASE/LICENSE OF NCR PRODUCTS
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Refer to your Value Added Reseller Agreement
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7.0 PRODUCT DISCONTINUANCE AND CHANGES TO PRODUCT LINE
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Refer to your Value Added Reseller Agreement
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8.0 CONFIDENTIAL INFORMATION
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Refer to Value Added Reseller Agreement
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9.0 TRADEMARKS
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Refer to Value Added Reseller Agreement
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10.0 PATENT, COPYRIGHT, AND TRADE SECRET INFRINGEMENT
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Refer to Value Added Reseller Agreement
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11.0 WARRANTIES
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11.1 Equipment: Refer to Value Added Reseller Agreement
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11.2 NCR Programs:
11.2.1 Refer to Value Added Reseller Agreement
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11.2.2 Refer to Value Added Reseller Agreement
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11.2.3 Refer to Value Added Reseller Agreement
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11.3 Exhibit A Programs: Except as provided in Section 4.0, NCR licenses
the Programs listed in Exhibit A to you under this Addendum as is, with no
warranties or representation of any kind.
11.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN OR REFERENCED IN THIS
ADDENDUM, NCR (AND ITS LICENSORS, IF APPLICABLE) DISCLAIM ALL WARRANTIES,
EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF
PERFORMANCE, A COURSE OF DEALING, OR TRADE USAGE. NCR DOES NOT WARRANT THAT THE
OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL
DEFICIENCIES OR ERRORS WILL BE CORRECTED.
12.0 LIMITATIONS OF LIABILITY
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Refer to your Value Added Reseller Agreement
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13.0 TERMINATION
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13.1 Refer to your Value Added Reseller Agreement
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13.2 Refer to your Value Added Reseller Agreement
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13.3 Refer to your Value Added Reseller Agreement
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13.4 Refer to your Value Added Reseller Agreement
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13.5 If you fail to provide satisfactory Program Support Services (see Section
4.6) for your End-Users, and NCR should receive written notice containing a
legitimate complaint from an End-User or a NCR authorized Support Services
provider, you grant NCR the right to investigate such a notice and take the
appropriate action concerning that customer or the Addendum as a whole. In such
cases, the Addendum may be altered, amended or otherwise changed within thirty
(30) days. In the event that NCR receives several legitimate complaints, the
Addendum may be terminated as provided in Section 13.0.
14.0 DISPUTES
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Refer to Value Added Reseller Agreement
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15.0 GENERAL
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15.1 Refer to your Value Added Reseller Agreement
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15.2 Refer to your Value Added Reseller Agreement
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15.3 Refer to your Value Added Reseller Agreement
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15.4 Refer to your Value Added Reseller Agreement
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15.5 Refer to your Value Added Reseller Agreement
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15.6 Refer to your Value Added Reseller Agreement
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15.7 All notices required or permitted under this Addendum and all requests
for approvals, consents, and waivers must be in writing and must be delivered by
a method providing for proof of delivery. Any notice or request will be deemed
to have been given on the date of receipt. Notices and requests must be
delivered to the parties at the addresses set forth on the first page of this
Addendum until a different address has been designated by notice to the other
party.
Notices should be sent to:
NCR: XXX Xxxxxxxxxxx
Imaging and Payment Systems Division
Attn: Contracts Administration
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Reseller: CPS Systems
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
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15.8 Refer to your Value Added Reseller Agreement
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15.9 Non-solicitation. You and NCR agree not to solicit employees or
independent contractors of the other for employment who are knowledgeable in the
NCR Programs listed in Exhibit A for 12 months after that person last performed
work under this Addendum. However, this provision does not bar a party from such
solicitation after termination of this Addendum if termination is due to the
other party's bankruptcy or the like. In the event that an employment
opportunity is initiated by the employee, you and NCR agree to promptly notify
each other for proper consideration and coordination.
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EXHIBIT A
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NCR PROGRAMS*
The following NCR Programs are provided to the Reseller under the above terms
and conditions. The prices represent the discounts mutually agreed for this
Reseller. All payments will be per licensed copy of the software and paid in US
dollars.
SUGGESTED ROYALTY
LIST PER PER COPY
COPY TO PAYMENT
END-USER TO NCR
PRODUCT DESCRIPTION
CODE
7770 S/W Products
0000-0000-0000 CAPRS 7,800 3,120
0000-0000-0000 CAPRS - Florida Tax Package 7,800 3,120
0000-0000-0000 EIP 1,500 600
0000-0000-0000 Reformatter 2,000 800
0000-0000-0000 Report Writer 1,700 680
0000-0000-0000 Consolidation 1,500 600
0000-0000-0000 Consolidation Delete 2,000 800
7780 S/W Products
0000-0000-0000 PRISM-CV - Conventional 12,000 8,000
0000-0000-0000 PRISM-HS - High Speed 15,000 10,000
0000-0000-0000 PRISM-FTP - Florida Tax Package 15,000 10,000
0000-0000-0000 PRISM-IC - Image Capture 20,000 8,000
0000-0000-0000 PRISM SERVER ND - No Database 10,000 6,670
The sale of two or more identical licenses to the same End-user will reduce the
total royalty payment on those licenses by 12.5%.
*The above NCR Programs are supplied to Reseller through an authorized third
party who has responsibility for the reasonable maintenance of the source code
on behalf of NCR.
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EXHIBIT B
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END-USER PROGRAM LICENSE AGREEMENT
This Agreement is entered into as of this ___________ day of _____________,19__
by and between ____________________________________________("Reseller")
and_____________________________ ("Customer").
1.0 Background
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1.1 The term "NCR Licensed Program Materials" shall include the
programs and related documentation described on the signature page of this
Agreement, as well as any other programs of XXX Xxxxxxxxxxx ("NCR") furnished to
Customer by Reseller, whether referred to as "software", "firmware" or
otherwise, wherever resident and on whatever media, whether separately licensed,
furnished as part of equipment, or provided as a result of software services.
NCR Licensed Program Materials may include programs and related documentation
that are owned by third parties and distributed by NCR under license from the
owner.
1.2 Reseller has obtained from NCR the right to sublicense NCR
Licensed Program Materials to its customers. Reseller and Customer have entered
into a separate agreement for the purchase or lease of certain NCR equipment
described on the signature page ("Designated Equipment"), and Customer desires
to obtain a license from Reseller to use the NCR Licensed Program Materials in
connection with the Designated Equipment. This Agreement sets forth the terms
and conditions under which Customer may possess and use the NCR Licensed Program
Materials.
2.0 License
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Reseller hereby grants Customer a non-exclusive and non-transferable license to
use the NCR Licensed Program Materials only on or in connection with the
Designated Equipment, for the term as agreed to between Reseller and Customer,
subject to the following restrictions:
2.1 Customer may not make any copies of the NCR Licensed Program
Materials, except one copy solely for archival purposes. On any copy of the NCR
Licensed Program Materials Customer is permitted to make, Customer must
reproduce all copyright notices and any other proprietary legends.
2.2 Customer must at all times use reasonable efforts to maintain the
confidentiality of the NCR Licensed Program Materials (and any other NCR
material relating to the NCR Licensed Program Materials or the Designated
Equipment) and may not sublicense, transfer, sell, rent, disclose, make
available or otherwise communicate the NCR Licensed Program Materials to any
other person, nor use the NCR Licensed Program Materials except as expressly
authorized under this Agreement.
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2.3 The NCR Licensed Program Materials may only be used in connection
with the single unit of the Designated Equipment unless the Designated Equipment
becomes temporarily inoperative, in which case the NCR Licensed Program
Materials may be used temporarily on back-up equipment while the Designated
Equipment is inoperative.
2.4 The NCR Licensed Program Materials may only be used by Customer,
and Customer shall not permit the Licensed Program Materials to be used by or
for the benefit of any other party, nor use the NCR Licensed Program Materials
at any time after the term of the license expires.
2.5 Customer shall destroy NCR Licensed Program Materials, or
immediately return the NCR Licensed Program Materials to Reseller in the event
(i) Customer ceases to use the NCR Licensed Program Materials, or (ii) the term
of the license expires.
2.6 The NCR Licensed Program Materials, including copies thereof,
shall at all times remain the sole and exclusive property of NCR or its
licensor.
2.7 If Customer sells or otherwise disposes of Customer-owned media on
which the NCR Licensed Program Materials are resident, that media must be erased
before such sale or disposal.
2.8 Customer may modify or make derivatives of the NCR Licensed
Program Materials for its own use, but any such modifications or derivatives
must include the copyright notice and any other proprietary legend of NCR or its
licensor. In addition, upon termination of this Agreement or expiration of
Customer's license, the NCR Licensed Program Material and any portion thereof
contained in the modifications or derivatives must be immediately removed and
destroyed, or returned to Reseller.
2.9 Customer may not disassemble, decompile, or reverse engineer the
NCR Licensed Program Materials.
2.10 Customer may not use, nor ship, transmit or otherwise transfer,
directly or indirectly, the NCR Licensed Program Materials outside of the United
States.
3.0 Warranties
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THE NCR LICENSED PROGRAM MATERIALS ARE NOT WARRANTED BY NCR OR ITS LICENSOR, AND
ARE PROVIDED ONLY ON AN "AS IS" BASIS BY NCR. NCR DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
OR OTHERWISE. Under no circumstances shall NCR or its licensor be responsible
for any warranties made by Reseller or for any agreements made by Reseller for
maintenance or support of the NCR Licensed Program Materials.
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4.0 Modifications Of This License Agreement
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This Agreement may not be modified, amended, canceled or waived, in whole or in
part, except by a written instrument signed by NCR and Reseller.
5.0 Other Agreements
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Reseller and Customer may have entered into other agreements concerning the
license fees to be paid by Customer for the NCR Licensed Program Materials, the
maintenance and other obligations of Reseller to Customer for the NCR Licensed
Program Materials, and the sale or lease to Customer of equipment with which the
NCR Licensed Program Materials are to be used. However, this Agreement shall
take precedence over any other agreements with respect to NCR Licensed Program
Materials, Customer's use of them, and NCR's obligations in connection with
them.
6.0 This Agreement For The Benefit Of NCR
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Reseller and Customer agree that the provisions of this Agreement are for the
benefit of NCR, and NCR shall be entitled to directly enforce this Agreement as
if it were a named party. NCR shall be entitled to injunctive relief, as well as
such further rights and remedies as it may have at law or equity, against
unauthorized disclosure or use of the Licensed Program Materials, or against
other breach or threatened breach of this Agreement.
7.0 Term And Termination
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The term of the license under this Agreement shall be for such period as agreed
to between Reseller and Customer. Notwithstanding such term, however, the
license shall automatically terminate if Customer breaches any provision of this
Agreement.
8.0 Limitations
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The maximum liability of NCR or NCR's licensor for damages sustained by Customer
in connection with the possession or use of NCR Licensed Program Materials shall
not exceed the amount of the license fees received by NCR or NCR's licensor. IN
NO EVENT SHALL NCR OR ITS LICENSOR BE LIABLE FOR ANY LOST REVENUES OR PROFITS,
OR OTHER SPECIAL, INDIRECT AND CONSEQUENTIAL DAMAGES, EVEN IF NCR OR RESELLER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges that
these limitations permit NCR and NCR's licensor to provide NCR Licensed Program
Material at lower rates than they otherwise could and that such limitations are
reasonable.
9.0 Arbitration
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Any controversy or claim, including any claim of misrepresentation, arising out
of or related to this Agreement, or to the Customer's acquisition of any
equipment or service or NCR Licensed Program Materials by Customer, shall be
settled by arbitration. The
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arbitration shall be conducted at the location of Customer's principal place of
business by a single arbitrator under the then current rules and supervision of
the American Arbitration Association. The arbitrator shall be chosen from a
panel of persons knowledgeable in business information and data processing
systems. The decision and award of the arbitrator shall be final and binding and
the award so rendered may be entered in any court having jurisdiction. The
arbitrator shall not be authorized to award punitive damages to either party.
All claims subject to this Paragraph 9 must be commenced within one (1) year
after such claim has accrued, or such claim shall be deemed waived and released
and the claimant shall be barred from asserting such claim. This Agreement shall
be construed and interpreted under the substantive laws of the State of New
York, except that the Federal Arbitration Act will govern the interpretation and
enforcement of this Paragraph 9.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Customer: Reseller:
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Address: Address:
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City/State/Zip: City/State/Zip:
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NCR ID No.: Date: NCR ID No.: Date:
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By: By:
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Printed: Printed:
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Title: Title:
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Attachment A: NCR Programs Documentation (Attach applicable program materials
covered by this Addendum)
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