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EXHIBIT 10.1
MASTER AGREEMENT
BETWEEN
Town Pages UK Limited of 00 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxx, XX00
0XX (the "Customer")
and
NCR Limited of 000 Xxxxxxxxxx Xxxx
Xxxxxx XX0 0XX ("NCR")
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CONTENTS
1 - Definitions
2 - Orders, Addenda, and Contract Formation
3 - Delivery and Installation
4 - Prices, Invoice, Payment, Taxes, and Title
5 - Services
6 - Licence to Use Software and Deliverables
7 - Warranties
8 - Customer Obligations
9 - Product Evaluation
10 - Defence of Infringement Claims
11 - NCR's Liability
12 - Dispute Resolution
13 - Miscellaneous Terms
1 DEFINITIONS
Agreement means this Master Agreement.
Addendum is defined in Section 2.1.
Contract is defined in Section 2.2.
Deliverables is defined in Section 5.3.
Equipment means hardware and associated peripherals and
features that the Customer acquires from NCR.
Interest Rate two percent above the London one year LIBOR
rate for sterling, accruing daily
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both before and after judgement
NCR Product Specifications means NCR's official published specifications for
Products when the Customer acquires them (which
NCR will provide to the Customer upon request),
and the documentation which NCR includes with
Products delivered to the Customer.
NCR means NCR Ltd.
Products means Equipment, Software, Services, Deliverables,
and Supplies.
Services means those services that the Customer acquires
from NCR, including those described in Section
5.0.
Software means computer programs in any form that the
Customer acquires from NCR, but does not include
diagnostic software as set out in Section 6.3
Supplies means consumable items that the Customer acquires
from NCR.
2 ORDERS, ADDENDA, AND CONTRACT FORMATION
2.1 Scope; Addenda -- This Agreement establishes general terms and
conditions that apply to the Customer's acquisition (directly or
through a leasing company) of Products for the Customer use. The
Customer and NCR may agree to additional terms covering a specific
transaction. These terms will be contained in an "Addendum" (which
may be called an Addendum, "Statement of Work," or other name).
2.2 Contracts -- This Agreement, standing alone, does not constitute an
obligation to buy or provide Products except and until the Customer
and NCR enter into an Addendum, purchase order, or other document
that contains terms and conditions, such as Products being ordered,
quantities, prices, delivery schedules, and discounts, which apply
only to a specific transaction. This Agreement and each set of
transaction-specific documentation will together constitute a
"Contract" between the Customer and NCR that is a binding agreement
separate from other Contracts. NCR may accept written or oral
orders. NCR accepts an order when it signs the order or acknowledges
it by performance or otherwise. If NCR accepts a written order, the
Contract includes the written order, this Agreement and any
applicable Addenda. Unless NCR specifically agrees in writing, any
preprinted language on the Customer order forms will not be a part
of the Contract. If NCR accepts an oral order, the Contract includes
this Agreement and any applicable Addenda, and the quantities,
prices and product identifications confirmed on NCR's invoice or
acknowledgment. If there is a conflict within any Contract, the
following order of precedence will apply: first, the order, second,
any applicable Addenda, and finally, this Agreement.
2.3 Other Software Licence Terms; Other Company's Products -- If NCR
provides Software to the Customer with a "shrink-wrap" or other
licence, those licence terms are included in the Contract rather
than the licence terms in this Agreement. If NCR provides the
Customer with Equipment, Software, Deliverables, or Supplies that
bear the logo or copyright of another company with warranty and/or
support terms from the other company, the other company's terms are,
in relation to the other company's products, included in the
Contract rather than those in this Agreement, and, unless
specifically agreed in writing, NCR provides no warranty or support
for these products. Upon the Customer's request, NCR will give the
Customer a copy of the terms discussed in this Section 2. before the
Customer orders these products.
2.4 Invoiced Services -- In order to facilitate the continuation of
Services at the end of a warranty period or maintenance Service
term, NCR may offer to provide the Services by sending invoices
covering them to the person the Customer designates. These invoices
will clearly describe the Services and identify the covered
Products. The Contract for the Services will include this Agreement
and the terms on the face of the invoice. If the Customer does not
want the Services but the Customer's employees mistakenly pay the
invoice or accept the Services, then the Customer
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may notify NCR within three months in which event NCR will cancel
the Contract. If the Customer has made any payments, NCR will refund
them, less charges for time and materials which NCR has already
provided at the Customer's request. If the Customer has not made any
payments, NCR will charge the Customer for time and materials which
NCR has already provided at the Customer's request.
2.5 Electronic Data Interchange ("EDI") -- NCR may provide EDI options,
including electronic ordering, invoicing and payment. These options
and NCR's acceptance of the Customers electronic document will be
governed by an EDI Addendum to this Agreement. If, however, the
Customer and NCR communicate electronically without executing an EDI
Addendum, an identification code contained in an electronic document
will be legally sufficient to verify the sender's identity and the
document's authenticity as a signed writing.
2.6 Changes -- Each Contract is the complete agreement between the
Customer and NCR concerning transactions covered by it, and replaces
any prior or contemporary oral or written communications. If the
Customer requests that NCR cancel or modify a Contract (including
changing delivery or installation dates or locations), the Customer
and NCR will negotiate in good faith new schedules and/or sufficient
compensation to NCR for accommodating the Customer. If no agreement
is reached, the Contract will continue unmodified, and if the
Customer refuses to perform further or reject NCR's tender of
Products, NCR may pursue its available remedies. No change to this
Agreement or a Contract will be effective unless it is in writing
and signed by authorised representatives of both the Customer and
NCR. Changes to Contracts should be made on NCR's change control
form.
3 DELIVERY AND INSTALLATION
3.1 Delivery -- NCR will use all reasonable efforts to perform its
obligations by dates included in a Contract. These dates are
estimates only. NCR will inform the Customer of delays as far in
advance as reasonably possible. If NCR's performance is delayed
(other than by a force majeure) for an unreasonable time, the
Customer may cancel delivery without penalty.
3.2 Location and Risk of Loss -- NCR will deliver Products to the
location that the Customer specifies. If the Customer selects the
shipping agent, the agent's receipt of the Products constitutes
delivery. Risk of loss passes to the Customer upon delivery. The
Customer agrees to inspect Products when the Customer receives them
and to notify NCR promptly if there is any visible damage.
3.3 Installation -- NCR will notify the Customer prior to the scheduled
delivery date if Products require a special physical environment.
The Customer agrees to provide that environment prior to
installation. Upon request, NCR will provide installation Services
which may be separately chargeable.
4 PRICES, INVOICE, PAYMENT, TAXES, AND TITLE
4.1 Prices -- Prices will be included in Contracts. If NCR announces a
price increase for a Product which the Customer has ordered and the
Contract specifies delivery more than 120 days after the price
increase becomes effective, NCR may increase the Customer price for
the Product. Price increases for Services or Software licensed for a
periodic fee will only apply to subsequent billing periods.
4.2 Invoice and Payment -- NCR will invoice the Customer:
4.2.1 for Equipment and Software -after delivery to the Customer or
its contractors, unless NCR stores Equipment or Software for
the Customer, in which case NCR will invoice the Customer when
storage begins;
4.2.2 for recurring Services -- in advance; and
4.2.3 for non-recurring Services, including the provision of
Deliverables, after NCR provides them to the Customer.
Payment is due when the Customer receives the invoice. NCR reserves
thc right to charge interest at the Interest Rate on late payments
if it does not receive payment within 30 days from the date of the
invoice. If the Customer does not pay after NCR notifies the
Customer of
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the Customer's default, NCR also may suspend or terminate applicable
Services and repossess or reclaim the applicable Products without
waiving NCR's right to payment.
4.3 Taxes and Other Charges -- Unless otherwise stated Product prices
exclude delivery and installation charges; charges associated with
preparing the Customer's site; and all taxes (such as sales, use,
and ad valorem taxes, and assessments after audit) other than NCR's
net income or franchise taxes. If the Customer qualifies for tax
exemptions, the Customer must provide NCR with appropriate exemption
documentation.
4.4 Title -- Title to Equipment passes to the Customer on delivery,
except that if NCR stores purchased Equipment for the Customer,
title passes to the Customer where and when storage occurs. Where
NCR stores purchased Equipment, NCR will charge the Customer
reasonable amounts for such storage.
5 SERVICES
5.1 Equipment Warranty and Maintenance Services
5.1.1 During the term of an Equipment warranty or Contract for
Equipment maintenance Services, NCR will maintain the covered
Equipment in accordance with this Section so that it complies
with the warranties in Section 7.1.2. Unless otherwise
stated, the initial term of a Contract for Equipment
maintenance Services is one year and will automatically renew
for additional one year terms unless the Customer or NCR
terminate it, no later than 30 days prior to the commencement
of the new term.
5.1.2 NCR's Equipment warranty and prepaid or contract maintenance
Services include parts and, if labour is included in the
Service, labour during covered hours. Replaced parts become
or remain NCR's property. NCR will charge separately for:
5.1.2.1 Supplies;
5.1.2.2 service calls outside of the applicable scope of
contracted Service or coverage hours;
5.1.2.3 service calls for Equipment that was in good
operating condition at the time of the call;
5.1.2.4 use of specified types of Equipment above their
rated usage levels (which NCR will provide to the
Customer at the Customer's request); and
5.1.2.5 per-call Services covering Products outside of
warranty or not on contract maintenance.
5.1.3 NCR will also charge separately to repair Equipment which has
failed due to:
5.1.3.1 an alteration to Equipment or Software or attachment
not provided by NCR, approved by NCR in writing or
compatible with NCR's standard interfaces;
5.1.3.2 the Customer's use of Supplies or products acquired
from third parties that are defective or that do not
meet NCR standards or specifications;
5.1.3.3 he Customer or any third party's negligence, misuse,
or abuse; or:
5.1.3.4 fire, smoke, water, or acts of God.
5.1.4 The Customer must maintain the Equipment site consistent with
NCR specifications at the Customer's expense, and the
Customer must provide safe working conditions and appropriate
utility services for maintenance personnel. When Equipment is
under warranty or a Contract for maintenance Services, or is
loaned to the Customer under Section 9.0, the Customer may
not allow anyone other than NCR or an authorised NCR warranty
service provider to maintain it. Before accepting an order
for maintenance Services for Equipment that is not then under
maintenance Services or which anyone other than NCR has
installed or serviced. NCR may inspect and refurbish it at
the Customer's expense. Orders for maintenance Services must
include all of the same type of Equipment at a location.
5.1.5 If NCR provides Services for products the Customer acquires
from third parties, NCR will maintain those products in good
operating condition during the term of the contract for those
Services. NCR will not assume the manufacturer's warranty
obligations or make modifications specified by the
manufacturer unless otherwise agreed in writing.
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5.2 Software Support
5.2.1 During the term of a Software warranty or Contract for
Software Support, NCR will perform the following in
accordance with this Agreement:
5.2.1.1 provide telephone access to NCR support resources to
assist in resolving Software problems; and
5.2.1.2 distribute, at the Customer's request, Software
updates. NCR will announce the availability of
updates via internet postings or otherwise.
Unless otherwise stated, the initial term of a Contract for
Software Support is one year and will automatically renew for
additional one year terms unless the Customer or NCR
terminate it no later than 30 days prior to the commencement
of the new term.
5.2.2 NCR will provide Software Support for the most recent release
and the prior release of covered Software. Software Support
for the prior release may not include updates or code level
fixes if these are not available to NCR. When the Customer
orders Software Support, the Customer must order the same
level of service (to the extent available) for all
interdependent Software operating on the same Equipment. If
the Customer has licensed multiple copies of the same
Software, the Customer must order Software Support for each
copy used at the same location.
5.2.3 To permit NCR to provide Software Support, upon request the
Customer agrees to assist in isolating Software problems. The
Customer also agrees to provide modems and telephone lines
for NCR to access the Customers system remotely, to install
and test all fixes and updates, and to perform other actions
reasonably requested by NCR.
5.3 Professional Services -- When NCR performs Services for the
Customer, NCR may provide the Customer with "Deliverables."
Deliverables may include:
5.3.1 custom or third party Software in executable or source code
form; and
5.3.2 written, visual, or audio materials such as architectural
designs, data models, and training materials in either
written or electronic form; which relate to the Customer's
information processing systems.
Software Deliverables may be subject to additional terms and
conditions contained in an Addendum.
5.4 Year 2000 maintenance and support
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5.4.1 If, during the term of a Software warranty, Equipment
warranty, Contract for Software Support or Equipment
maintenance services, as appropriate, NCR receives a
substantial number of calls attributable to century date
issues, the Customer recognises that this may have an effect
on NCR's ability to achieve any service levels that would
otherwise apply. If NCR (notwithstanding that NCR has solely
for this reason used all reasonable endeavours) fails to meet
those service levels, NCR shall not be liable for such
failure.
6 LICENCE TO USE SOFTWARE AND DELIVERABLES
6.1 Scope -- Subject to the Customer's payment of all one-time or
periodic licence fees, NCR grants the Customer a non-transferable,
non-exclusive licence to use Software and Deliverables under the
terms of this Agreement. Unless the Contract specifies that the
licence to Software is periodic, the Customer's licence is
perpetual. If the Contract does not specify usage terms such as the
number of users or site licence rights, the Customer may use the
Software at any time on a single processing unit of the class and
model for which the Customer originally licensed it. The Customer
may use the Software in object code only, unless the Customer and
NCR agree to additional terms regarding the use of source code. The
Customer may use the Software only for the Customer's internal use,
(which may include use by the Customers end users where such use is
normal for the Equipment to which the Software relates). The licence
term for Software and Deliverables begins on delivery. The
Customer's licence to use Software or Deliverables terminates
automatically if the Customer violates the licence terms. When a
licence terminates, the Customer will immediately stop using the
Software or Deliverables and either return or destroy all copies.
6.2 General -- The Customer may not copy Software or Deliverables;
transfer, disclose, sublicense or distribute them to any party; or
use them other than as allowed by this Agreement or a Contract,
except that, subject to Section 2.3:
6.2.1 The Customer may transfer Software and Deliverables to the
Customer's affiliates who agree to be bound by this
Agreement:
6.2.2 The Customer may give access to the Software and Deliverables
to the Customer's consultants who agree to be bound by the
licence terms of this Section 6.0 and the Contract, for the
sole purpose of performing consulting services for the
Customer, and:
6.2.3 if the Customer transfers Equipment to a third party, the
Customer may transfer Software running on that Equipment to
the third party for that party's internal use only (and not
for resale or redistribution) if the Customer notifies NCR
and gives the other party a copy of the licence terms of the
Contract, including this Section 6.0 and all usage
limitations. The licence transfer will be effective when the
third party accepts the terms by initial use of the Software
and pays any applicable relicence fees.
The Customer will retain copyright notices and proprietary legends
on all copies of Software and Deliverables the Customer possess or
transfers. Software and Deliverables remain the property of NCR or
its licensors. The Customer will not take any steps, such as reverse
assembly or reverse compilation, to derive a source code equivalent
of Software, except to the extent permitted by law.
6.3 Diagnostic Software -- NCR may provide Products to the Customer that
include software, data, documentation, and other material that NCR
uses to diagnose the operation of the Products ("Diagnostic Tools").
Diagnostic software may be firmware or it may be loaded in memory
from disks or other media. The Diagnostic Tools are not licensed for
use by any person other than NCR. Diagnostic Tools are the
confidential intellectual property of NCR and are provided solely to
assist NCR in supporting its Products. They may not be copied,
disclosed to any third party (except under the same terms as under
Section 6.2.3), or used by any person for any purpose whatsoever
without NCR's express written consent NCR may delete or remove
Diagnostic Tools at any time without notice. NCR provides no
warranties for diagnostic tools and is not liable for their use by
any person other than NCR.
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7 WARRANTIES
7.1 Equipment, Supplies, Software, and Services -- NCR warrants that:
7.1.1 Title in Equipment and Supplies will be free and clear.
7.1.2 Equipment, Supplies, and Software media will be free from
defects in material and workmanship and will conform to NCR
Product Specifications. Software operation will materially
conform to NCR Product Specifications (except for Software
Deliverables, which are covered in 7.1.3 below).
7.1.3 Deliverables, including Software Deliverables, will
materially conform to the specifications included in the
applicable Addendum.
7.1.4 Equipment and Software listed in the "NCR Year 2000
Qualification List" ("Qualified Products") at the time of
acquisition from NCR will comply with the "NCR Year 2000
Qualification Requirements Definition" in effect at the time
of acquisition. Both the Qualification List and the
Qualification Requirements Definition will be made available
to the Customer at the Customer's request. This warranty
applies only to the performance of the Qualified Products
themselves, and does not extend to the use of Qualified
Products in combination with other products, whether acquired
from NCR or not. Notwithstanding Section 7.2, this warranty
is not limited in duration.
7.1.5 NCR will provide Services in a professional manner consistent
with Section 5.0 and any Contract in effect at the time the
Services are rendered.
Equipment may include used components, which will not affect the
applicable warranties.
7.2 Warranty Period -- The warranty period for Equipment, Supplies,
Software and Deliverables will be agreed per Contract. The warranty
period begins on delivery of the Product. The warranty for a copy of
a piece of Software covers only that specific copy; software fixes
supplied under warranty Services may nor be incorporated into other
copies of the same Software which are not then under warranty or a
Contract for Software Support. If the Contract does not state the
warranty period there is no warranty (other than 7.1.1 and 7.1.4
above).
7.3 Nonconformance with Warranties -- If Equipment, Software (except
Software Deliverables, which are covered by the next sentence), or
Supplies do not conform to their warranties during the applicable
warranty period, NCR will promptly and without charge;
7.3.1 under Section 5.1 repair Equipment or replace it with a unit
of Equipment that is at least functionally equivalent;
7.3.2 under Section 5.2 correct Software; or
7.3.3 replace Supplies.
If NCR does not perform Services as warranted (including by
providing Deliverables that do not conform to their warranties) and
the Customer provides prompt notice, NCR will use all reasonable
efforts to reperform them.
7.4 Refunds
7.4.1 If NCR is unable to repair, correct, or replace Equipment,
Software (except Software Deliverables, which are covered by
Section 7.4.2), or supplies under Section 7.3 within a
reasonable time, the Customer may return the defective
Product and obtain a refund, or the Customer may accept the
Product "as is."
7.4.2 If NCR is unable to reperform Services as warranted under
Section 7.3 within a reasonable time (including by correcting
any non-conforming Deliverables), the Customer may terminate
the Contract and obtain a refund of the Customer payments to
NCR for those Services and/or associated Deliverables. The
Customer refund for a fixed term Services Contract will not
exceed the Customer's most recent payment for such Services.
7.4.3 Any refund under this Section 7.0 will be reduced on the same
basis as the Customer depreciates the Product(s) in the
Customer's financial statements, calculated from the delivery
date. If the Customer does not depreciate the Product(s), the
refund will be reduced on a 5-year straight-line basis.
7.5 Warranty Services -- NCR will provide warranty Services as set out
in this Agreement and the relevant Contract. The Customer may
separately purchase expanded warranty Services from NCR, when
available.
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7.6 Except for warranties specifically contained in this Agreement or a
contract, NCR disclaims all warranties, express and implied,
including but not limited to the implied warranties of
merchantability, fitness for a particular purpose, and those
arising from a course of dealing. NCR does not warrant that Products
will operate uninterrupted or error free, or that all deficiencies,
errors, defects or nonconformities will be corrected. NCR has no
warranty obligation for Products that the Customer acquires from
third parties, even if NCR assisted in evaluating or selecting them.
The failure of Products the Customer acquires from third parties or
their suppliers will not affect the Customer's obligations to NCR.
If NCR designates that Products are provided "as is," there is no
warranty.
7.7 Exclusive Remedies - The Customer's rights and remedies set forth in
this Agreement or a Contract are exclusive and in lieu of all other
rights and remedies related to any Contract or Product (except to
the extent that applicable law prohibits agreements to disclaim
warranties or limit liabilities).
8 CUSTOMER OBLIGATIONS
8.1 The successful performance of the Products depends on the Customer's
knowledgeable selection and operation of the Products and the
Customer's reasonable cooperation with NCR. The Customer's
obligations include, unless otherwise agreed:
8.1.1 determining whether the Products, if they perform as
warranted, will meet the Customer specific requirements;
8.1.2 giving NCR sufficient, free, and safe access to the
Customer's facilities, free of any hazardous materials (e.g.,
asbestos) or conditions;
8.1.3 providing back-up equipment and services to safeguard the
Customer's programs, data and funds;
8.1.4 implementing and operating the Products;
8.1.5 testing and operating Software and all Software updates; and
8.1.6 documenting Software problems;
8.1.7 giving NCR reasonable access to the Customer's employees,
including clearly identified key contacts;
8.1.8 obtaining the commitment of the Customer's management to the
success of the Products and communicating that commitment to
all of Customer's employees;
8.1.9 appropriately educating the Customer's employees on the use
of the Products;
8.1.10 giving NCR information that it requests that is reasonably
relevant to the Customer's implementation or operation of the
Products;
8.1.11 obtaining any necessary governmental permits or consents.
9 PRODUCT EVALUATION
9.1 NCR may loan Products to the Customer for the Customer's evaluation.
The Customer and NCR will agree in advance on;
9.1.1 the length of the evaluation period;
9.1.2 prices if the Customer elects to acquire the Products;
9.1.3 the post-evaluation warranty periods, if any; and;
9.1.4 the post-evaluation warranty periods, if any; and;
9.1.5 who will bear related costs of freight,
installation/deinstallation and maintenance.
The evaluation period will begin when NCR delivers the Products to
the Customer. At the end of the evaluation period, the Customer will
make the Products available for return to NCR, or NCR will invoice
the Customer for the Products at the agreed prices. The Customer
agrees not to move the Products to another location during the
evaluation without NCR's consent. During the Customer's evaluation,
products are furnished to the Customer "as is." If the Customer is
dissatisfied with them for any reason, the Customer's exclusive
remedy will be NCR's removal of the products from the Customer site.
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10 DEFENCE OF INFRINGEMENT CLAIMS
10.1 NCR will defend at its expense any claim or suit brought against the
Customer alleging that any Product infringes a patent, copyright or
trade secret and will pay all costs and damages finally awarded, if
the Customer promptly notifies NCR of the claim and gives NCR;
10.1.1 the information and cooperation that NCR reasonably asks for,
and;
10.1.2 sole authority to defend or settle the claim.
10.2 In handling the claim, NCR may obtain for the Customer the right to
continue using the Product or replace or modify the Product so that
ii becomes non-infringing. If NCR is unable to reasonably secure
those remedies, as a last resort NCR will refund the purchase price
for infringing Equipment and refund one-time licence fees for
infringing Software. The refund will be reduced on the same basis as
the Customer depreciate the infringing Product in the Customer
financial statements. If the Customer does not depreciate it, the
refund will be reduced on a 5-year straight-line basis. NCR is not
obligated to indemnify the Customer under this Section 10.0 if the
alleged infringement is based on the use of the Product with other
products not furnished directly by NCR, or on NCR's compliance with
any designs, specifications or instructions provided by the
Customer, or on the modification of the product by anyone other than
NCR. This section states NCR's entire liability for infringement of
patents, copyrights, trade secrets, and other intellectual property
rights.
11 NCR'S LIABILITY
11.1 Circumstances may arise where, because of NCR's default or other
liability, the Customer is entitled to recover damages from NCR. In
each such instance, regardless of the basis on which the Customer
becomes entitled to claim damages, the Customer's sole remedy, and
NCR's entire liability (except to the extent that applicable law
prohibits agreements to limit liabilities), is as follows:
11.2 For failure;
11.2.1 of Equipment, Supplies, and Software (other than Software
Deliverables, which are covered by the next clause) to
conform to their warranties during a warranty period,
11.2.2 to perform Services (including by providing Deliverables that
do not conform to their warranties) as warranted, and
11.2.3 any warranty as sot out in Section 7.4. as stated in Section
7.0.
11.3 For delays in delivery, as stated in Section 3.1 or as otherwise
provided in a Contract.
11.4 For the Customer dissatisfaction with Products that NCR loans to the
Customer, as stated in Section 9.0.
11.5 For infringement of patents, copyrights, trade secrets, and other
intellectual property rights, as stated in Section 10.0.
11.6 For bodily injury, including death, caused by NCR's negligence,
NCR's liability will be unlimited, to the extent NCR's negligence
caused the injury. For physical damage to tangible property, NCR
will be liable for direct damages up to (pound)2,000,0O0 per
occurrence, to the extent NCR's negligence caused the damage.
11.7 For all claims not expressly addressed in sections 11.1 through 11.5
(or if the remedies in those sections are held to have failed of
their essential purpose or are otherwise held to be invalid or
unenforceable), including but not limited to claims of
misrepresentation (but not including fraudulent misrepresentation)
arising out of or related in any manner to the performance of any
obligations under a contract, NCR's cumulative liability (including
refunds and the value of replacement products given to the Customer)
will be limited to the Customer's direct damages not to exceed the
amount the Customer paid NCR for the applicable Product(s) over any
12 month period proceeding the claim..
11.8 Under no circumstances are NCR, or its officers, directors,
employees, affiliates, subcontractors, or suppliers liable, whether
in an action in contract, tort, negligence, product liability,
statute or otherwise (and even if advised of the possibility of loss
or damages) for loss of profits or revenue (whether direct or
indirect), nor liable for any indirect, incidental, consequential or
punitive damages.
11.9 The Customer agrees that the Customer is in a better position than
NCR to foresee and evaluate any potential damage or loss that the
Customer may suffer in connection with any Contract,; and that the
damages payable under this Agreement have been calculated on the
basis that NCR shall exclude or
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limit liability as set out in this Agreement. The Customer warrant
to NCR that the Customer will insure against, or bear itself, any
loss for which NCR has excluded liability.
11.10 Sections 11.6 and 11.7 will survive failure of an exclusive or
limited remedy.
12 DISPUTE RESOLUTION
12.1 Negotiation, Escalation and Mediation -- If any controversy or claim
arises relating to this Agreement or any Contract, the Customer and
NCR will attempt in good faith to negotiate a solution to their
differences, including progressively escalating any controversy or
claim through senior levels of management. If negotiation does not
result in a resolution within 15 business days of when one party
first notifies the other of the controversy or claim, the Customer
and NCR will attempt to settle it by mediation in accordance with
the Centre for Dispute Resolution (London) Model Mediation
Procedure.
12.2 Two Year Limitation -- Neither the Customer nor NCR may bring a
claim or action regardless of form, arising out of or related to
this Agreement, including any claim of fraud or misrepresentation,
more than two years after the delivery of any Products at issue, or
more than two years after cause of action accrues, whichever is
later.
12.2 Confidentiality - in order to facilitate the resolution of
controversies or claims between the Customer and NCR, the Customer
and NCR will keep them confidential, including details regarding
negotiations, mediation, arbitration, and settlement terms.
12.4 Substitute Products - The Customer's acceptance of refunds or
substitute Products under this Agreement waives all claims relating
to the nonperforming Products involved.
13 MISCELLANEOUS TERMS
13.1 Effective Date; Non-Waiver; Assignment -- The cover page of this
Agreement specifies the effective date. If the date is left blank,
the date NCR signs this Agreement or first provides Products to the
Customer is the effective date. Failure to enforce any term of this
Agreement or a Contract is not a waiver of future enforcement of
that or any other term. Neither the Customer nor NCR may assign this
Agreement, a Contract, or its rights or obligations under them
without the express written consent of the other, except NCR may
assign this Agreement or a Contract to an affiliate and may use
subcontractors or resellers to fulfil its obligations.
13.2 Severability -- If any provision of this Agreement or a
Contract is held to be illegal, invalid, or unenforceable,
the provision will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and
the remaining provisions of this Agreement or the Contract
will remain in full force and effect.
13.3 Termination -- This Agreement will remain in effect until the
Customer or NCR terminate it on 30 days advance written
notice. Termination of this Agreement will not terminate any
existing Contract. Either party may terminate an existing
Contract with immediate effect if the other party is in
material breach and, if the breach was capable of remedy, has
failed to remedy the breach within 30 days of receipt of
written notice giving details of the breach and requiring the
other party to remedy the breach.
13.4 Insolvency and Bankruptcy -- On the occurrence of any of the
following, all Contracts will automatically terminate unless
the non-affected party elects to have any such contract
continue:
13.4.3 the admission by either party in writing of its
inability to pay its debts generally or the making
of a general assignment for the benefit of
creditors;
13.4.2 any affirmative act of insolvency by either party or
the filing by or against any party of any petition
or action under any bankruptcy, reorganisation,
insolvency arrangement, liquidation, dissolution or
moratorium law, or any other law or laws for the
relief of, or relating to, debtors, unless the
petition or action is withdrawn within 30 days; or
13.4.3 the subjection of a material part of either party's
property to any levy, seizure, assignment or sale
for or by any creditor, third party or governmental
agency.
13.4.4 the appointment of a receiver, administrative
receiver or liquidator over an asset of a party;
13.5 Confidentiality; Customer References -- Except as required by
law, the Customer and NCR will keep the terms and conditions
of this Agreement and of Contracts, including pricing,
confidential; provided, however, that NCR may without the
Customer's consent disclose to third
10
11
parties that the Customer is a customer of NCR and Customer
may disclose to third parties that NCR is a supplier of
Customer, without revealing any specific terms of this
Agreement or any Contract.
13.6 Notices -- All notices (including requests, consents or
waivers) made under this Agreement or any Contract will be in
writing and delivered by facsimile, electronic mail, or other
electronic means (in which case the recipient will provide
acknowledgment within one business day separately from any
machine-generated automatic reply); or by prepaid means
providing proof of delivery. Notices are effective upon
receipt. NCR will send notices to the Customer at the address
on the face of this Agreement, and the Customer will send
notices to NCR at its local district office or other
designated address, with an additional copy to Head of Legal,
NCR Ltd, 000 Xxxxxxxxxx Xx, Xxxxxx XX0 0XX. Either party may
change its address upon notice as required by this Section.
13.7 Force Majeure - Except for the Customer's obligation to make
payments, neither party is liable for failing to fulfil its
obligations due to causes beyond its reasonable control
including, without limitation, acts of God, civil or military
authority, warriots, strikes, or fire. If NCR's performance
of a Contract is adversely affected by any such causes then
the Customer may terminate that Contract on 35 days notice
unless the failure to perform is remedied within the notice
period.
13.8 Choice of Law - This Agreement is governed by the law of
England and Wales and subject to the exclusive jurisdiction
of the English courts.
13.9 Governmental authorisations - The Customer nay not export
certain Products without appropriate approvals from time
United States and foreign governments.
13.10 Entire Agreement - This Agreement contains the entire
agreement and understanding of the parties with respect to
its subject matter and supersedes and cancels all prior
agreements, statements, representations, warranties or
understandings, written or oral, with respect thereto. Each
of the parties acknowledges and agrees that in entering into
this Agreement it does not rely on, and shall have no remedy
in respect of, any statement, representation, warranty or
understanding made prior to this Agreement except to the
extent that such statement, representation, warranty or
understanding is incorporated in this Agreement. Each of the
parties hereby acknowledges that it has not been induced to
enter into this Agreement by reason of any representation
made by or on behalf of the other party or any party
connected with the other party. Nothing in this sub-clause
shall operate to limit or exclude any liability for fraud.
CUSTOMER NCR LIMITED
/s/ F.N. Xxxxxx - Skegges /s/ X. Xxxx
------------------------------ -----------------------------------
Signature Signature
X.X. XXXXXX - XXXXXX X. Xxxx
------------------------------ -----------------------------------
Printed Name Printed Name
Director DIRECTOR
------------------------------ -----------------------------------
Title Title
22nd Aug '99 26/8/99
------------------------------ -----------------------------------
Date Date
------------------
NCR Law/
Contract Mgmt.
------------------
/s/ [ILLEGIBLE]
------------------
Approved As To
Legal Form
------------------
11
12
[LOGO]
NCR
KIOSK SERVICES ADDENDUM
1.0 THIS ADDENDUM
1.1 Our Contract with respect to Kiosk Services the Customer acquire from NCR
consists of the -Master Agreement dated 26th August 1999 ("Master Agreement"),
this Kiosk Services Addendum, any Appendices attached to this Addendum, and a
Statement of Work. Unless otherwise agreed in writing, all Kiosk Services will
be governed by this Addendum.
1.2 If a conflict exists between the terms and conditions of any of the
documents referenced above, the order of precedence will be (a) any Statement of
Work, (b) Appendices to this Addendum; (c) this Kiosk Services Addendum; and (d)
the Master Agreement. Any pre-printed language on the Customer's or NCR's Order
Forms shall not apply.
2.0 TERM
2.1 The initial term of this Addendum ("Initial Term") will begin on the
Effective Date and will continue for a period of three years. Thereafter, this
Addendum will automatically renew for one year periods, until terminated by
either party by written notice to the other no less than 90 days prior to the
end of the Initial Term or renewal period, unless terminated according to
Section 10.0.
3.0 DEFINITIONS
3.1 As used in this Addendum, the following terms will have the following
meanings. Capitalised terms not defined in this Addendum will have the meanings
assigned in the Master Agreement.
(b) "Customer Preventable Call" is a Service call which could have been
avoided if the Customer had properly undertaken the Customer's obligations
hereunder. Customer Preventable Calls include, but are not limited to,
calls for First Line Maintenance to replenish supplies because the
Customer neglected to do so during normal business hours.
(c) "Good Operating Condition" means for:
(i) Kiosk hardware, conformance to the NCR Product Specification.
(ii) Kiosk software, material conformance to the NCR Product
Specification.
Defects in material and workmanship in Kiosk hardware which are present on
delivery to the Customer (or on delivery or handover to the Customer
representative) shall be deemed to be failures to materially conform to
the NCR Product Specification.
(d) "Principal Period of Maintenance" ("PPM") is the time period (in hours
per day and days per week) during which NCR will provide Services.
------------------------------
3/94
------------------------------
13
(e) "Response Time" is the interval between the Customer's call to NCR and
arrival of the NCR customer engineer at the Kiosk. Response Time intervals
are measured during the PPM only. For example, if the PPM is 8:00 a.m.
through 5:00 p.m. and NCR receives a request of service at 4:00 p.m. and
responds at 9:00 a.m. the following day, the Response Time is 2 hours.
3.2 Reference to the conduct of a party includes the conduct of employees,
subcontractors or agents of that party. NCR may provide Services either directly
or through subcontractors.
4.0 SCOPE
4.1 NCR will provide and the Customer will purchase First and Second Line
Maintenance Services described herein. (Additional Services may be described in
Appendices to this Addendum.) The Services selected for various Kiosksare
specified in Appendix A, which may be updated from time to time by the agreement
of the parties to add additional Kiosks and/or Kiosk equipment, services, or
locations.
4.2 Second Line Maintenance consists of Remedial Maintenance, Replacement Parts,
Preventive Maintenance, and Engineering Changes, as described below, necessary
to keep the Kiosk in Good Operating Condition. Generally, NCR will attempt
problem diagnosis and resolution on a remote basis first.
4.2.1 Remedial Maintenance - Remedial Maintenance consists of those
functions required to repair a malfunctioning Kiosk and return it to Good
Operating Condition. NCR's response to a service request will be
consistent with the nature of the problem, and may include remote support
in the form of on-line diagnosis and telephone assistance, and if
necessary, on-site presence.
4.2.2 Replacement Parts -- NCR will install parts on an exchange basis.
Installed parts may be new or reconditioned used parts. Replacement parts
become the Customer's property (if the Customer own the equipment).
Replaced parts become the property of NCR. As used in this Addendum, the
term "parts" does not include consumable items such as batteries, paper,
printheads, and storage media, such parts will be a chargeable item.
4.2.3 Preventive Maintenance - Preventive Maintenance consists of any
functions performed on a proactive basis designed to keep the Kiosk in
Good Operating Condition. Any applicable Preventive Maintenance will be
performed as determined by NCR. Preventive Maintenance may include system
monitoring as applicable, further specified in the Statement of Work
section 4.4.
4.2.4 Engineering Changes -- Engineering Changes include any safety
changes to NCR Kiosks required of NCR by a governmental or regulatory
entity. Safety changes will be made at no additional charge. Other
engineering changes, e.g., changes intended to enhance or simplify the
performance, reliability or serviceability of NCR equipment, that are
generally adopted by NCR and provided to NCR's maintenance customers at no
charge, if any, will also be made by NCR at no additional charge and will
be installed at NCR's convenience.
4.2.5 Intentionally deleted.
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4.2.6 Unless otherwise agreed in writing, new NCR Kiosks will receive the
level of support specified by their warranty. If the Customer upgrades the
warranty to receive a higher level of support, the warranty upgrade charge
will commence on installation. At the expiration of the NCR warranty
period, the NCR Kiosks will automatically be placed under this Addendum
for the remainder of the term at the maintenance rates specified in the
applicable Statement of Work, or if not specified, at NCR's standard
maintenance rates then in effect. NCR does not assume the manufacturer's
warranty obligations on non-NCR equipment.
4.2.7 Before accepting Kiosks for maintenance, NCR may inspect, and if
necessary repair, Kiosks which have not been subject to NCR warranty or
maintenance for a period in excess of 90 days. Inspection and any
necessary repairs will be at the Customer's expense at NCR's then-current
time and materials service rates and policies.
4.2.8 With respect to any Alteration or Attachment to Kiosks, NCR will
determine in its discretion if it will provide maintenance for the Kiosk.
NCR will not maintain Kiosks if an Alteration or Attachment creates a
safety hazard or renders maintenance or repair impractical. For purposes
of this Addendum, an "Alteration" is a change made to the physical,
mechanical, or electrical arrangement of hardware, whether or not
additional devices or parts are required, and an "Attachment" is a
mechanical, electrical, or electronic interconnection to NCR hardware of
non-NCR hardware marketed by others. If an Alteration, Attachment, use of
supplies not meeting the Kiosk manufacturer's specificatons, use of
unsupported software, use of software not furnished by NCR, or
modifications to NCR-supported software not performed by NCR result in an
increase in NCR's maintenance of Kiosks, such increased maintenance will
be billed at an appropriate increased rate. Use of certain equipment above
designated levels which NCR communicates to the Customer may require
additional charges.
4.2.9 Second Line Maintenance does not include clearing of paper, card,
envelope and jams, the replenishment of media and supplies (paper,
ribbons, ink cartridges, and printheads), or Administrative Maintenance
including retrieval of mutilated paper from the divert cassette, retrieval
of captured cards, or the general cleaning of Kiosk and the immediate
surrounding area.
4.3 Services will be performed only during the PPM. If a service request
received by NCR within the PPM cannot be completed by the end of that day's PPM,
it will be continued during the next occurring hours of the PPM. Except as
otherwise agreed in writing, the PPM does not include New Year's Day, Christmas
Day, Boxing Day, and any public or bank holidays (collectively, "Holidays").
4.4 The following services are not covered by this Addendum and are billable to
the Customer on a "Per Call" basis:
(a) Any service which, at the Customer's request, is provided outside the
PPM, or which is beyond the scope of the service as described in this
Addendum.
(b) Intentionally deleted
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15
(c) Services relating to installation, deinstallation, and movement of
Kiosks, to electrical work external to an Kiosk.
(d) At NCR's discretion, services requested for equipment which is in Good
Operating Condition.
(e) Service resulting from the following causes: the Customer's or any
third party's negligence, misuse, or abuse, including the failure to
operate the Kiosk in accordance with NCR's power, environmental, and other
specifications; movement of the Kiosk by anyone other than NCR; failure of
equipment not maintained by NCR, improper use of or failure to use
supplies; use of supplies not meeting the manufacturer's specifications;
acts of third parties; fire originating outside of NCR-furnished
equipment; water; acts of God; damage ordinarily covered by insurance.
(f) Customer Preventable Calls.
Per Call services are billed upon performance at NCR's then-current time and
materials rates, and are subject to personnel and material availability. The
applicable Hourly service rates are subject to a surcharge if the service is
performed outside the PPM.
4.5 In the event service is required on Kiosks under circumstances which could
jeopardise the safety of NCR employees, NCR reserves the right, but is not
obligated to, reschedule service to other times, require a security escort at
the Customer's expense, or refuse service. Alternatively, NCR may recommend
changes the Customer can make to the Kiosk site, such as additional lighting,
designed to improve safety and enable NCR to service the Kiosk without
limitation. NCR agrees to use its best efforts to notify the Customer
immediately if any of the above circumstances apply.
6.0 THE CUSTOMER'S RESPONSIBILITIES
6.1 The Customer will not permit anyone other than NCR to perform Second Line
Maintenance on any Kiosk covered by this Addendum.
6.2 The Customer is responsible for initially determining that the Kiosk
requires service and will follow the service request procedures provided by NCR.
6.3 The Customer is responsible for preparing prior to the delivery of the
Kiosk, and maintaining thereafter, the site of the Kiosk in accordance with the
Kiosk manufacturer's specifications and NCR's site safety specifications (which
will be provided upon request) and for providing safe and adequate working
conditions for NCR's service personnel, including appropriate utility service
and, if required, local telephone extensions. Subject only to reasonable and
necessary security regulations, the Customer agrees to permit NCR access to all
Kiosk's to be maintained by NCR.
6.4 The Customer is responsible for:
(a) Installation. testing, and operation of all software Updates.
(b) Providing all necessary consumables for service of the Kiosk (paper,
ribbons, etc.)
4
16
6.5 The Customer represent that the Customer have the authority of the owner of
any Kiosk not owned by the Customer to have it serviced by NCR.
6.6 The Customer are responsible for all products and services provided by
parties other than NCR and NCR's subcontractors, whether or not NCR recommended
them or assisted in their evaluation, selection, or supervision. The failure of
those products, services or their suppliers to meet the Customer's requirements
will not affect the Customer's obligations to NCR under this Addendum.
7.0 RATES
7.1 NCR may increase the prices set out in any SOW or Order to reflect increases
in its costs once every twelve months subject to 30 days written notice. The
price increase shall not exceed the annual rate set out for UK Wages/Earnings,
in the edition of The Economist magazine published for the month of the
anniversary date of this Agreement. Where no edition of The Economist magazine
is published for that month, or where the edition does not contain the UK
Wages/Earnings rate, the previous edition of The Economist shall be used, and so
on until a copy of The Economist containing the UK Wages/Earnings rate is
located.
7.2 Rates do not include any Federal, state, county, or local sales, use, or
other taxes however designated, whether levied on seller or buyer and whether
based on price, charge, product, service, use, or this Addendum. Any such taxes
and interest (if not due to NCR's delay) required to be paid by NCR will be
added to the invoices. Any taxes to be paid by the Customer but in fact paid by
NCR will be reimbursed to NCR upon request. In the event any taxes to be paid by
the Customer but levied on NCR are not paid until audit, NCR may then invoice
the Customer.
8.0 INVOICING AND PAYMENT
The Customer will pay NCR for services quarterly in advance, beginning on the
Effective Date of this Addendum, or for Kiosks not installed on the Effective
Date, on the date the Kiosk is installed and certified ready for use. NCR will
provide appropriate invoices 30 days prior to each payment due date. NCR will
invoice the Customer for Per Call services as those services are rendered.
Invoices for Per Call services are due and payable upon receipt. The Customer's
failure to pay any invoice when due will entitle NCR to late payment fees or
interest, or both, and to applicable collection costs (if any).
9.0 WARRANTY AND LIMITATION OF LIABILITY
9.1 NCR warrants that it will perform its obligations under this Addendum, and
for the stated term of this Addendum, in a professional and workmanlike manner.
NCR, at its expense, will promptly re-execute any Services that fail to conform
to the requirements of this Addendum. If NCR is unable reasonably to do so, the
fees the Customer paid for that portion of the Service will be refunded.
9.2 In the event NCR is required to perform maintenance services on a Kiosk as a
result of damage or inoperability caused by the Customer's negligence, failure
to comply with the terms of this Addendum, or failure to comply with agreed
operational procedures, NCR reserves the right to xxxx the Customer for such
services at its then-current time and materials rate.
5
17
6.5 The Customer represent that the Customer have the authority of the owner of
any Kiosk not owned by the Customer to have it serviced by NCR.
6.6 The Customer are responsible for all products and services provided by
parties other than NCR and NCR's subcontractors, whether or not NCR recommended
them or assisted in their evaluation, selection, or supervision. The failure of
those products, services or their suppliers to meet the Customer's requirements
will not affect the Customer's obligations to NCR under this Addendum.
7.0 RATES
7.1 NCR may increase the prices set out in any SOW or Order to reflect increases
in its costs once every twelve months subject to 30 days written notice. The
price increase shall not exceed the annual rate set out for UK Wages/Earnings,
in the edition of The Economist magazine published for the month of the
anniversary date of this Agreement. Where no edition of The Economist magazine
is published for that month, or where the edition does not contain the UK
Wages/Earnings rate, the previous edition of The Economist shall be used, and so
on until a copy of The Economist containing the UK Wages/Earnings rate is
located.
7.2 Rates do not include any Federal, state, county, or local sales, use, or
other taxes however designated, whether levied on seller or buyer and whether
based on price, charge, product, service, use, or this Addendum. Any such taxes
and interest (if not due to NCR's delay) required to be paid by NCR will be
added to the invoices. Any taxes to be paid by the Customer but in fact paid by
NCR will be reimbursed to NCR upon request. In the event any taxes to be paid by
the Customer but levied on NCR are not paid until audit, NCR may then invoice
the Customer.
8.0 INVOICING AND PAYMENT
The Customer will pay NCR for services quarterly in advance, beginning on the
Effective Date of this Addendum, or for Kiosks not installed on the Effective
Date, on the date the Kiosk is installed and certified ready for use. NCR will.
provide appropriate invoices 30 days prior to each payment due date. NCR will
invoice the Customer for Per Call services as those services are rendered.
Invoices for Per Call services are due and payable upon receipt. The Customer's
failure to pay any invoice when due will entitle NCR to late payment fees or
interest, or both, and to applicable collection costs (if any).
9.0 WARRANTY AND LIMITATION OF LIABILITY
9.1 NCR warrants that it will perform its obligations under this Addendum, and
for the stated term of this Addendum, in a professional and workmanlike manner.
NCR, at its expense, will promptly re-execute any Services that fail to conform
to the requirements of this Addendum. If NCR is unable reasonably to do so, the
fees the Customer paid for that portion of the Service will be refunded.
9.2 In the event NCR is required to perform maintenance services on a Kiosk as a
result of damage or inoperability caused by the Customer's negligence, failure
to comply with the terms of this Addendum, or failure to comply with agreed
operational procedures, NCR reserves the right to xxxx the Customer for such
services at its then-current time and materials rate.
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10.0 TERMINATION
10.1 This Addendum may be terminated as set forth below:
(a) By either party upon a material default by the other party in the
performance of any of its obligations under this Addendum if it is not
cured within 60 days after written notice by the non-defaulting party.
(b) NCR may terminate in the event the Customer fail to pay after 10 days
prior written notice by NCR of a payment being past due and if in that
notice NCR indicates that this addendum is terminated if not paid. This
right to terminate is in addition to NCR's rights under Section 8.0.
10.2 If NCR is not reasonably able to secure parts, documentation, training, or
support necessary to fully perform its obligations under this Addendum for a
particular class of non-NCR Kiosk, NCR may cancel this Addendum for that non-NCR
Kiosk on 90 days written notice.
1
This Kiosk Services Addendum between TownPages UK Ltd ("the Customer") and NCR
Limited ("NCR") is agreed to on 26th August, 1999 (the "Effective Date").
Signed:
The Customer NCR Limited
/s/ F.N. Xxxxxx - Skegges /s/ X. Xxxx
------------------------------ ------------------------------------
F.N. XXXXXX -SKEGGES. X. Xxxx
------------------------------ ------------------------------------
Name Printed Name Printed
------------------
NCR Law/
Contracyt Mgmt.
------------------
/s/ [ILLEGIBLE]
------------------
Approved As To
Legal Form
------------------
6
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Appendix A
Kiosk SERVICES ADDENDUM
FIRST LINE MAINTENANCE
This Appendix describes the First Line Maintenance Services that NCR will
provide the Customer.
1.0 SCOPE OF SERVICES
1.1 First Line Maintenance Service includes the following: clearing of paper
jams; the general cleaning of the kiosk exterior; and printer paper
replenishment within the same visit as specified in the Statement of Work
section 4.1.
1.2 First Line Maintenance Service rates do not include the cost of, and the
Customer will furnish and distribute to the Kiosks, all media and supplies
or, upon request (and with sufficient notice), NCR will furnish media and
supplies at NCR's then-current prices.
7
20
NCR LIMITED
STATEMENT OF WORK-- KIOSK SERVICES
TownPages Ltd
TownPages Kiosk Project
The following constitutes the Statement of Work between NCR Limited ("NCR") and
the Customer (TownPages) for contractual services provided to the Customer for
the Managed service and First / Second Level Maintenance of Ci20 Kiosks, and
supplements (a) the Master Agreement between the parties dated 26.8.99 ("Master
Agreement") and the Kiosk Services Addendum. Neither NCR, nor those acting on
its behalf, will be liable for any decisions made by the Customer or those
acting on the Customers behalf in the development of any systems, products, or
software solutions, unless NCR accepts such decision in writing.
1.0 PROJECT SCOPE
This Statement of Work is for the support of the Ci2O Kiosk as described
in section 4, Deliverables.
2.0 TERM
Service delivery will be a three year term beginning on ________________,
19__, ("Start Date") and completing on ___________, 20__, ("End Date").
The Start Date and/or End Date may be delayed due to delays in executing
this Statement of Work, availability of required hardware and software,
availability of the Customers personnel, or changes to the Project Scope
or functional specification. In addition to schedule changes, changes in
the Project Scope or functional specification may result in additional
charges.
3.0 NCR'S RESPONSIBILITIES
NCR will perform the services as described in this Statement of Work.
4.0 SERVICE DELIVERABLES
4.1 First Line Maintenance includes:
o Cleaning of kiosk exterior on a once per month visit, per kiosk and
included on the same visit, a physical check of printer paper and
replace where necessary. Scheduling and management of this service
will be co-ordinated by NCR.
o All paper to be supplied on an appropriate basis to NCR nominated
sites by the Customer at the Customer's cost, subject to an agreed
distribution and replacement process. The Customer shall also be
responsible to ensure that appropriate levels of paper are stocked.
o Repair of printer faults resulting from paper jams, between
0800-2000 Monday to Sunday (excluding UK Public and Bank holidays).
Engineering response time on-site, being within eight hours from
notification of equipment failure via the NCR Management Centre or
by call placement to NCR by the Customer.
1
21
4.2 Second Level Maintenance encompasses attendance of NCR engineers to
perform remedial maintenance activity (inclusive of associated parts and
labour) to hardware failures, and will be performed on the following
basis.
Hours of on-call engineering Hardware Maintenance cover is defined as:
08:00 - 20:00 Monday to Friday
08:00 - 20:00 Saturday
08:00 - 20:00 Sunday
(Excluding local Public and Bank Holidays)
Engineering response time on-site, being within eight hours from notification of
equipment failure via the NCR Management Centre or by call placement to NCR by
the Customer.
Repair time will be on a reasonable endeavours basis.
The above service level is based on 95% achievement of total calls placed. For
performance measurement purposes, this will be measured by NCR on a quarterly
basis.
4.3. NCR will provide service management (including remote monitoring of the
kiosks) of the First Level and Second Level maintenance activities via the
NCR Managed Service Centre. The NCR Managed Service Centre operation will
provide these services, between the hours; defined below:
08:00 - 20:00 Monday to Friday
08:00 - 20:00 Saturday
08:00 - 20:00 Sunday
(Excluding local Public and Bank Holidays)
The management centre will provide a monthly Management Information report
detailing kiosk availability. NCR will conduct quarterly service reviews
with the Customer to review service performance.
Due to implementation requirements for the managed service, NCR and the
Customer will agree upon the resource and implementation at a later date.
The two phased approach once agree by both parties may include: NCR
delivering managed services in terms of First Line Maintenance by 1
September 1999 and NCR delivering remote monitoring of the kiosk network
via NCR's management centre by 1 October 1999.
4.4. NCR plan to perform one preventative maintenance visit per kiosk per year
in conjunction with and following a standard repair call. Any time
undertaken for such activity will not be included in repair time and any
subsequent performance measurement. If no repair call has been placed
within each 12 month period for each Kiosk, then preventative maintenance
will be at NCR's discretion.
4.5. In the event that NCR discovers the Customers network infrastructure is
configured in such a way that it requires NCR to incur addition cost, then
NCR reserves the right to make an appropriate additional charge.
4.6. Excludes support of those items deemed consumable by the Original
Engineering Manufacturer.
2
22
4.2 Second Level Maintenance encompasses attendance of NCR engineers to
perform remedial maintenance activity (inclusive of associated parts and
labour) to hardware failures, and will be performed on the following
basis.
Hours of on-call engineering Hardware Maintenance cover is defined as:
08:00 - 20:00 Monday to Friday
08:00 - 20:00 Saturday
08:00 - 20:00 Sunday
(Excluding local Public and Bank Holidays)
Engineering response time on-site, being within eight hours from
notification of equipment failure via the NCR Management Centre or by call
placement to NCR by the Customer.
Repair time will be on a reasonable endeavours basis.
The above service level is based on 95% achievement of total calls placed.
For performance measurement purposes, this will be measured by NCR on a
quarterly basis.
4.3. NCR will provide service management (including remote monitoring of the
kiosks) of the First Level and Second Level maintenance activities via the
NCR Managed Service Centre. The NCR Managed Service Centre operation will
provide these services, between the hours defined below:
08:00 - 20:00 Monday to Friday
08:00 - 20:00 Saturday
08:00 - 20:00 Sunday
(Excluding local Public and Bank Holidays)
The management centre will provide a monthly Management Information report
detailing kiosk availability. NCR will conduct quarterly service reviews
with the Customer to review service performance.
Due to implementation requirements for the managed service, NCR and the
Customer will agree upon the resource and implementation at a later date.
The two phased approach once agree by both parties may include: NCR
delivering managed services in terms of First Line Maintenance by 1
September 1999 and NCR delivering remote monitoring of the kiosk network
via NCR's management centre by I October 1999.
4.4. NCR plan to perform one preventative maintenance visit per kiosk per year
in conjunction with and following a standard repair call. Any time
undertaken for such activity will not be included in repair time and any
subsequent performance measurement. If no repair call has been placed
within each 12 month period for each Kiosk, then preventative maintenance
will be at NCR's discretion.
4.5. In the event that NCR discovers the Customers network infrastructure is
configured in such a way that it requires NCR to incur addition cost, then
NCR reserves the right to make an appropriate additional charge.
4.6. Excludes support of those items deemed consumable by the Original
Engineering Manufacturer.
2
23
4.7. Excludes support of those calls which are outside of those specified in
the Kiosk Services Addendum and associated Statement of Work and hence
chargeable at the then applicable NCR Time and Materials rates. The
exception to this being the remedial repair of occurrences of paperjams
within the kiosk printer mechanism, the repair of such occurrences being
managed by NCR and at NCR's cost, as stated in point 2 above.
4.8. Assumes all locations are mainland U.K.
4.9. The provision of service within this agreement does not include support
of software.
5.0 PAYMENT SCHEDULE
All prices within this schedule are exclusive of VAT.
5.1 Combined First and Second Level Maintenance plus Managed Service, as
defined in section 4, per NCR Ci20 Kiosk is (pound)1,023.00 per annum.
.1 Invoicing for service delivery will be quarterly in advance, on a pro-rata
basis from installation.
.1 Services charges are subject to annual review. NCR will inform the
Customer of the annual review % to be applied, one month prior to the
anniversary of each year of the contract. The annual review % notified
will then be applied at the 12-month anniversary of each year of the
contract.
6.0 CHANGE CONTROL PROCESS
6.1 The Change Control Process governs changes to the project scope during the
life of the project. The purpose of this process is to standardise and
optimise the evaluation, testing, and installation of new features and
functionality during the project. The process will apply to new components
and to enhancements of existing components. The Change Control Process
will commence at the start of the project and will continue throughout the
project's duration. Additional procedures and responsibilities may be
outlined by the Project Manager, mutually accepted by both the NCR and the
Customers Project Manager, and included in the baseline project plan.
6.2 The Customer and NCR will each nominate a Project Manager for the purposes
of charge control.
6.3 A Change Request substantially in the form of Exhibit B-1 will be the
vehicle for communicating any desired changes to the project. It will
describe the change, the reason for the change, and the effect the change
may have on the project. The Project Manager of the requesting party will
submit a written Change Request to the Project Manager for the other
party. The other party will formulate an initial response substantially in
the form of Exhibit B-2.
6.4 Both NCR and the Customer will review the proposed Change Request and
approve it for further study or reject it. The costs for the study, if
any, will be agreed upon by both NCR and the Customer. If the study is
agreed to, both NCR and the Customer will sign the Change Request as
defined in Exhibit B attached hereto. This approves only the study and
3
24
its related costs. The results of the study will be used to determine the
effect that the implementation of the Change Request will have on the cost
and schedule of the project.
6.5 Both NCR and the Customer must sign the approval portion of the Change
Request to authorise the implementation of any change that affects the
Project's scope, schedule, or price.
7.0 INITIAL START UP RECOVERY CHARGE
.1 Initial start up costs are included within the Discount Adjustment charges
defined in the Hardware Order between NCR and Townpages date 26th August
1999.
8.0 ORDER OF PRECEDENCE
8.1 This Statement of Work, together with its exhibits, the Addendum, and the
Master Agreement, states all of the rights and responsibilities of, and
supersedes all prior oral and written communications, between NCR and the
Customer regarding this project.
8.2 In the event of any conflict, the order of precedence shall be (a)
exhibits to this Statement of Work; (b) this Statement of Work; (c) the
Kiosk Services Addendum, and (d) the Master Agreement.
Agreed and Accepted:
The Customer NCR Limited
By: /s/ J. R. Xxxxxx-Xxxxxx By: /s/ X. Xxxx
-------------------------------- -------------------------------------
Printed: J.R. Xxxxxx-Xxxxxx Printed: X. Xxxx
--------------------------- --------------------------------
Title: Director Title: Director
----------------------------- ----------------------------------
Date: 22nd Aug '99 Date: 26/8/99
------------------------------ -----------------------------------
[SEAL]
NCR Law/
Contract Mgmt.
[ILLEGIBLE]
Approved As To
Legal Form
4
25
EXHIBIT A
PROJECT UPDATE /COMMUNICATIONS
NCR and the Customer acknowledge that regular communication among and between
the Parties is essential to the Project's successful completion. The Parties
agree that, in addition to normal, day-to-day communication, Project Updates
will be held:
monthly, every (first Tuesday in the month)
at: 10:30
via: on-site meeting held at TownPages Ltd, 00 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxx.
XX00 0XX or teleconference, which will be initiated by NCR.
Expected duration is 2 hours. Both NCR's and the Customers Project Managers will
determine who will participate in regular project updates.
The NCR Project Manager will issue minutes of the Project Updates. The minutes
will include: attendee list, status of previously opened items, list of new
items including person(s) responsible for resolution, and summary of the
project's overall status. Other items will be added as appropriate.
Other meetings, correspondence, etc., will occur as necessary. The regular
Project Update is not intended to eliminate or replace any other forms of
communication between the Parties.
5
26
EXHIBIT B-1
CHANGE REQUEST FORM
TownPages Kiosk Project
Requestor Name: __________________________________________________
Requestor Company Name: __________________________________________
Date Requested: __________________________________________________
Response Requested By: ___________________________________________
Change Requested:
The request should insert a detailed description of the change requested, the
area of the project plan/schedule being modified, and the benefits of making
the change.
Estimated Schedule Impact:
The requestor should provide an estimate of how the requested change will impact
the project schedule.
Estimated Cost Impact:
The requestor should provide an estimate of how the requested change(s) will
impact project costs.
Change Request Received:
By:______________________________________________________________
Company:_________________________________________________________
Date:____________________________________________________________
Change Request No.:______________________________________________
6
27
EXHIBIT B-2
CHANGE REQUEST
EVALUATION RESPONSE FORM
Change Request No.: ____________________________________________
Requestor Name: ________________________________________________
Review Date: ___________________________________________________
Request No. ________ has been: _______ accepted without changes
_______ accepted with modifications (see
below)
_______ redirected for further study
(schedule and cost to be mutually
agreed)
_______ rejected
Modifications to Change Request:
Insert any changes that are made to this original Charge Request. identify, in
detail, the changes to the scope of work, schedule and costs.
Schedule Revision:
Insert new dates (or attach revised project plan/schedule) which show the impact
of the Charge Request, if any.
Cost Revision:
Additional Cost: (pound)________________________________________
Party Responsible for Cost: ____________________________________
Payment Due Date: ______________________________________________
Acceptance Criteria/Deliverables:_______________________________
Agreed and Signed:
The Customer NCR Limited
By:________________________________ By:_____________________________________
The Customer Project Manager NCR Project Manager
Date:______________________________ Date:___________________________________
7
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NCR LIMITED
HARDWARE ORDER
TownPages Ltd
TownPages Kiosk Project
The following constitutes the Hardware Order between NCR Limited ("NCR") and the
Customer (TownPages) for the Supply of Ci2O Kiosks, and supplements the Master
Agreement between the parties dated 26.8.99 ("Master Agreement"). Neither NCR,
nor those acting on its behalf, will be liable for any decisions made by the
Customer or those acting on the Customers behalf in the development of any
systems, products, or software solutions, unless NCR accepts such decision in
writing.
1.0 PURCHASE OF HARDWARE
The Customer purchases from NCR 3,500 Kiosks at the price set out below per
Kiosk (total price (pound)20,202,000). Subject to the cancellation provisions
set out below, the Kiosks will be supplied by NCR and taken by the Customer in
accordance with the dates set out below.
Any additional options will be charged as set out below. Payment for the Kiosks
and any option will be in accordance with the Master Agreement.
Kiosks will be [delivered] to the Customer at [Location] in accordance with the
call-off procedure set out in the Call Off Procedure, below.
"Kiosk" means NCR's Ci2O Kiosk as set out below.
The Customer acknowledges that per Kiosk price set out below is based on the
Customer's order of 3,500 Kiosks, and that the Discount Adjustment set out below
reflects a reduced unit price for reduced quantities actually purchased. List
price of the base unit is (pound)11,360.
--------------------------------------------------------------------------------
TownPages Ci2O Kiosk Description Supply Price Excel. VAT
--------------------------------------------------------------------------------
Ci2O Kiosk with standard panels (5920-2000-xxxx)
--------------------------------------------------------------------------------
2Gb XXXX hard drive
--------------------------------------------------------------------------------
3,5" 1,4Mb Flex drive
--------------------------------------------------------------------------------
24 x speed CD-ROM
--------------------------------------------------------------------------------
Stability foot (5920-F005-)
--------------------------------------------------------------------------------
15" active display touchscreen (5920-F032-)
--------------------------------------------------------------------------------
Pentium 200MHZ processor (5920-F022-)
--------------------------------------------------------------------------------
64MB memory (5920-F076-)
--------------------------------------------------------------------------------
80 Col thermal self service printer (5920-F563-)
--------------------------------------------------------------------------------
Platform NT (5920-F258-)
--------------------------------------------------------------------------------
(pound)5,772
--------------------------------------------------------------------------------
1
29
--------------------------------------------------------------------------
Options Add(pound)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Rugged Keyboard (5920-F720-) 290
--------------------------------------------------------------------------
DIP 123 with Smart (5920-F297-) 300
--------------------------------------------------------------------------
40 Col thermal self service printer (5920-F209-) 437
--------------------------------------------------------------------------
Pre-load Windows NT (5920-F258-) 180
--------------------------------------------------------------------------
Digital ISDN modem (5920-F053) 461
--------------------------------------------------------------------------
Prices identified for the above list of components only shall not be increased
by NCR for the duration of the Contract, unless NCR receive price increases from
any third party suppliers. In such an event the Customers price may be increased
appropriately.
2.0 CALL OFF PROCEDURE
The Customer will call as many units as required at any one time.
Any options must be specified separately on each call off order and will
be invoiced in addition to the units ordered.
A separate order will be placed by the Customer for each batch, quoting on
the order "subject to agreement between Customer and NCR dated xx/xx/xx"
and specifying delivery information.
Delivery times will be notified by NCR in writing at the time of each call
off order placed by the Customer. NCR will use all reasonable efforts to
deliver to the Customer within the time frames provided in the Customers
delivery schedule.
3.0 PAYMENT SCHEDULE
All prices are exclusive of VAT and delivery.
In order to achieve discount the Customer will need to order the total
number of Kiosks in each Period in accordance with the table below.
Call off will be as required, but in order to achieve discount the
Customer will by the end of each Period need to have called off the total
number of Kiosks set out for each Period by the Final Delivery Date set
out below.
-------------------------------------------------------------
Period Total Units Final Total
To Be Delivery/installation Order
Ordered in Date Value (pound)
Period
-------------------------------------------------------------
Initial 250 Up to 30/09/99 1,443,000
-------------------------------------------------------------
1 250 1/10/99-31/12/99 1,443,000
-------------------------------------------------------------
2 1,000 1/1/00-31/08/00 5,772,000
-------------------------------------------------------------
3 2,000 1/9/00-31/08/01 11,544,000
-------------------------------------------------------------
-------------------------------------------------------------
Total 3,500 31/08/01 20,202,000
-------------------------------------------------------------
2
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Unless otherwise agreed in writing, NCR will invoice the Customer upon
delivery of each Kiosk to the Customer. The Customer will pay all invoices
in accordance with the Master Agreement.
4.0 REDUCED ORDERS
4.1 At the end of each Period, the amount of Kiosks actually ordered for
delivery in that Period ("Actually Delivery") will be compared to the
Total Units To be ordered Period. If the Actual Delivery is less than the
Total Units To be ordered in the Period, then the Customer shall pay to
NCR a sum reflecting the loss of earned discount (the "Discount
Adjustment") in accordance with the calculation below. The Discount
Adjustment will become due on the day immediately following the final
delivery date as defined in section 3.0.
Formula for Cancellation charges and Discount Adjustment:
Discount Adjustment (up to 1500 units) =
x*((pound)2873-((pound)2873*(x/1500))) where x is the total number of
units delivered.
Discount Adjustment (beyond 1500 units) = see section 4.2.
In the event that the Customer fails to order the Total Units to be
ordered for each Period by the Final Dates provided in clause 3.0, the
Discount Adjustment detailed above shall be applied. However if at a later
date the Customer reaches the Total Units before the next Period end then
NCR shall issue the Customer with a credit note for that Discount
Adjustment off-set against orders in the current Period.
4.2 If the Customer, within the period starting on the date of this Agreement
and last call off of Kiosk from NCR (the "Exclusion Period"), purchases,
rents, leases or otherwise obtains ("Purchases") a kiosk (or similar
product) from a supplier other than NCR, then the Customer shall pay a
Discount Adjustment as calculated by the Formula in 4.1 or (pound)500 x
the no of Kiosks delivered, up to a maximum of (pound)500 x 1500,
whichever charge is the greater.
4.3 Cancellation is only possible once 250 units have been delivered and
payment received.
4.4 Cancellation charges after 250 units will be calculated using the Formula
in 4.1.
4.5 The Customer shall pay the Discount Adjustment or Cancellation charge
within 30 days of receipt of the invoice which will be issued on the first
business day following the final delivery date as stated in the table
above.
3
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5 WORKING TOGETHER
5.1 NCR are looking forward to working with the Customer as a preferred
channel partner for the Kiosk based community information within the UK
public domain. We consider the Customer as our lead partner in kiosk
solutions and propose to engage the Customer where possible.
5.1.1 NCR will state to customers for kiosk-based community information that the
Customer is its UK preferred channel partner for kiosk based community
information within the public domain. In the event that any customer
prefers not to work with the Customer, then NCR reserves the right to
work directly with that customer or through another channel partner. In
addition, NCR will consider limiting sales of the Ci2O to specific
Customer competitors for a specific period of time. The Customer must
submit to NCR the specific names of the Customer competitors and NCR will
consider this situation on a case by case basis and may enter into such an
agreement at our sole discretion. The Ci2O is a generally available
product that was not specifically designed for the Customer, and as a
result can be sold to any customer unless specifically agreed to by NCR.
If NCR agrees to limit sales to certain companies it will be for a
specific period of time to be determined by NCR.
5.1.2 Where NCR is selected by councils or other authorities within the public
domain to supply kiosks for their internal use, the Customer will be
included as a supplier where reasonably possible but will not be given
exclusivity.
5.1.3 NCR plans to work with the Customer to explore additional opportunities
for co-operation.
6.0 CHANGE CONTROL PROCESS
The Change Control Process will commence at the start of the project and
will continue throughout the project's duration. Additional procedures and
responsibilities may be outlined by the Project Manager, mutually accepted
by both the NCR and the Customers Project Manager, and included in the
baseline project plan.
The Customer and NCR will each nominate a Project Manager for the purposes
of change control.
A Change Request substantially in the form of Exhibit B-1 will be the
vehicle for communicating any desired changes to the project. It will
describe the change, the reason for the change, and the effect the change
may have on the project. The Project Manager of the requesting party will
submit a written Change Request to the Project Manager for the other
party. The other party will formulate an initial response substantially in
the form of Exhibit B-2.
Both NCR and the Customer will review the proposed Change Request and
approve it for further study or reject it. The costs for the study, if
any, will be agreed upon by both NCR and the Customer. If the study is
agreed to, both NCR and the Customer will sign the Change Request as
defined in Exhibit B attached hereto. This approves only the study and its
related costs. The results of the study will be used to determine the
effect that the implementation of the Change Request will have on the cost
and schedule of the project.
4
32
Both NCR and the Customer must sign the approval portion of the Change
Request to authorise the implementation of any change that affects the
Project's scope, schedule, or price.
7.0 ORDER OF PRECEDENCE
7.1 This Statement of Work, together with its exhibits, the Addendum, and the
Master Agreement, states all of the rights and responsibilities of, and
supersedes all prior oral and written communications, between NCR and the
Customer regarding this project.
7.1 In the event of any conflict, the order of precedence shall be (a)
exhibits to this Statement of Work; (b) this Statement of Work; (c) the
Addendum, and (d) the Master Agreement.
Agreed and Accepted:
The Customer NCR Limited
By: /s/ J. R. Xxxxxx-Xxxxxx By: /s/ X. Xxxx
-------------------------------- -------------------------------------
Printed: J.R. Xxxxxx-Xxxxxx Printed: X. Xxxx
--------------------------- --------------------------------
Title: Director Title: Director
----------------------------- ----------------------------------
Date: 22nd Aug '99 Date: 26/8/99
------------------------------ -----------------------------------
[SEAL]
NCR Law/
Contract Mgmt.
[ILLEGIBLE]
Approved As To
Legal Form
5
33
EXHIBIT A
PROJECT UPDATE/COMMUNICATIONS
NCR and the Customer acknowledge that regular communication among and between
the Parties is essential to the Project's successful completion. The Parties
agree that, in addition to normal, day-to-day communication, Project Updates
will be held:
monthly, every (first Tuesday in the month)
at: 10:30
via: on-site meeting held at TownPages Ltd, 00 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxx.
XX00 0XX or teleconference, which will be initiated by NCR.
Expected duration is 2 hours. Both NCR's and the Customers Project Managers will
determine who will participate in regular project updates.
The NCR Project Manager will issue minutes of the Project Updates. The minutes
will include: attendee list, status of previously opened items, list of new
items including person(s) responsible for resolution, and summary of the
project's overall status. Other items will be added as appropriate.
Other meetings, correspondence, etc., will occur as necessary. The regular
Project Update is not intended to eliminate or replace any other forms of
communication between the Parties.
6
34
EXHIBIT B-1
CHANGE REQUEST FORM
TownPages Kiosk Project
Requestor Name: ___________________________________________
Requestor Company Name: ___________________________________
Date Requested: ___________________________________________
Response Requested By: ____________________________________
Change Requested:
The request should insert a detailed description of the change requested, the
area of the project plan/schedule being modified, and the benefits of making
the change.
Estimated Schedule Impact:
The requestor should provide an estimate of how the requested change will impact
the project schedule.
Estimated Cost Impact:
The requestor should provide an estimate of how the requested change(s) will
impact project costs.
Change Request Received:
By: ____________________________________________________
Company: _______________________________________________
Date: __________________________________________________
Change Request No.: ____________________________________
7
35
EXHIBIT B-2
CHANGE REQUEST
EVALUATION RESPONSE FORM
Change Request No.: ____________________________________
Requestor Name: ________________________________________
Review Date: ___________________________________________
Request No. ________ has been: ________ accepted without changes
________ accepted with modifications (see
below)
________ redirected for further study
(schedule and cost to be mutually
agreed)
________ rejected
Modifications to Change Request:
Insert any changes that are made to the original Charge Request. Identify, in
detail, the changes to the scope of work, schedule and costs.
Schedule Revision:
Insert new dates (or attach revised project plan/schedule) which show the impact
of the Change Request, if any.
Cost Revision:
Additional Cost:(pound)_________________________________
Party Responsible for Cost: ____________________________
Payment Due Date: ______________________________________
Acceptance Criteria/Deliverables:_______________________
________________________________________________________
Agreed and Signed:
The Customer NCR Limited
By:________________________________ By:_____________________________________
The Customer Project Manager NCR Project Manager
Date:______________________________ Date:___________________________________
8
