EXHIBIT 10.19
[LOGO] NCR
XXX XXXXXXXXXXX
MASTER AGREEMENT
_______________
Customer Number
G+G Retail, Inc.
Your Business Name ("you")
000 0xx Xxxxxx
Xxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 10018
City State Zip Code
February 9, 1999
Effective Date
CONTENTS
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1 - Definitions 8 - Your Obligations
2 - Orders, Addenda, and Contract Formation 9 - Product Evaluation
3 - Delivery and Installation 10 - Defense of Infringement Claims
4 - Prices, Invoice, Payment, Taxes, 11 - NCR's Liability
and Title 12 - Dispute Resolution
5 - Services 13 - Miscellaneous Terms
6 - License to Use Software and Deliverables
7 - Warranties
1.0 DEFINITIONS
1.1 "Agreement" means this Master Agreement.
1.2 "Addendum" is defined in Section 2.1.
1.3 "Contract" is defined in Section 2.3.
1.4 "Deliverables" is defined in Section 5.3.
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1.5 "Equipment" means hardware and associated peripherals and features that you
acquire from NCR.
1.6 "NCR Product Specifications" means NCR's official published specifications
for Products when you acquire them (which NCR will provide to you upon request),
and the documentation which NCR includes with Products delivered to you.
1.7 "NCR" means XXX Xxxxxxxxxxx.
1.8 "Policies" is defined in Section 2.2.
1.9 "Products" means Equipment, Software, Services, Deliverables, and Supplies.
1.10 "Services" means those services that you acquire from NCR, including those
described in Section 5.0.
1.11 "Software" means computer programs in any form that you acquire from NCR,
but does not include diagnostic software as set out in Section 6.3
1.12 "Supplies" means consumable items that you acquire from NCR.
2.0 ORDERS, ADDENDA, AND CONTRACT FORMATION
2.1 Scope; Addenda -- This Agreement establishes general terms and conditions
that apply to your acquisition (directly or through a leasing company) of
Products for your use. This Agreement does not authorize you to acquire
Products for resale or redistribution. In the future, you and NCR may agree to
additional terms covering a specific transaction. These terms will be contained
in an "Addendum" (which may be called an Addendum, "Statement of Work," or other
name).
2.2 NCR Policies -- This Agreement refers to a number of NCR policies
("Policies"). These are written policies that apply to NCR's customers
generally. They contain supplemental details of NCR's Products (for example,
details regarding Services and Software usage terms) and the way that NCR
interacts with its customers (for example, NCR's credit policies). These
Policies are incorporated into this Agreement as if they were written in it.
NCR will give you copies at your request. Changes to these Policies affect only
Contracts (defined in the next Section) which you and NCR subsequently create or
which renew; they do not change Contracts in place at the time of the change
during such Contracts' then-current terms.
2.3 Contracts -- This Agreement, standing alone, does not constitute an
obligation to buy or provide Products except and until you and NCR enter into an
Addendum, purchase order, or other document that contains terms and conditions,
such as Products being ordered, quantities, prices, delivery schedules, and
discounts, which apply only to a specific transaction. This Agreement and each
set of transaction-
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specific documentation will together constitute a "Contract" between you and NCR
that is a binding agreement separate from other Contracts. NCR may accept
written or oral orders. NCR accepts an order when it signs the order or
acknowledges it by performance or otherwise. If NCR accepts a written order, the
Contract includes the written order, this Agreement, the applicable Policies,
and any applicable Addenda. Unless NCR specifically agrees in writing, any
preprinted language on your order forms will not be a part of the Contract. If
NCR accepts an oral order, the Contract includes this Agreement, the applicable
Policies, any applicable Addenda, and the quantities, prices and product
identifications confirmed on NCR's invoice or acknowledgment. If there is a
conflict within any Contract, the following order of precedence will apply:
first, the order, second, any applicable Addenda, third, Policies, and finally,
this Agreement.
2.4 Other Software License Terms; Other Company's Products -- If NCR provides
Software to you with a "shrink-wrap" or other license, those license terms are
included in the Contract rather than the license terms in this Agreement. If
NCR provides you with Equipment, Software, Deliverables, or Supplies that bear
the logo or copyright of another company with warranty and/or support terms from
the other company, the other company's terms are included in the Contract rather
than those in this Agreement, and, unless specifically agreed in writing, NCR
provides no warranty or support for these products. Upon your request, NCR will
give you a copy of the terms discussed in this Section 2.4 before you order
these products.
2.5 Invoiced Services -- In order to facilitate the continuation of Services at
the end of a warranty period or maintenance Service term, NCR may offer to
provide the Services by sending invoices covering them to the person you
designate. These invoices will clearly describe the Services and identify the
covered Products. If you want the Services, pay the invoices, or let NCR
perform the Services. The Contract will include this Agreement, the applicable
Policies, and the invoice terms. If you do not want the Services but your
employees mistakenly pay the invoice or accept the Services, notify NCR within
three months and NCR will cancel the Contract. If you have made any payments,
NCR will refund them, less charges for time and materials which NCR has already
provided. If you have not made any payments, NCR will charge you for time and
materials which NCR has already provided.
2.6 Electronic Data Interchange ("EDI") -- NCR may provide EDI options,
including electronic ordering, invoicing and payment. These options and NCR's
acceptance of your electronic document will be governed by an EDI Addendum to
this Agreement. If, however, you and NCR communicate electronically without
executing an EDI Addendum, an identification code contained in an electronic
document will be legally sufficient to verify the sender's identity and the
document's authenticity as a signed writing.
2.7 Changes -- Each Contract is the complete agreement between you and NCR
concerning transactions covered by it, and replaces any prior or contemporary
oral or written communications. If you request that NCR cancel or modify a
Contract (including
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changing delivery or installation dates or locations), you and NCR will
negotiate in good faith new schedules and/or sufficient compensation to NCR for
accommodating you. If no agreement is reached, the Contract will continue
unmodified, and if you refuse to perform further or reject NCR's tender of
Products, NCR may pursue its available remedies. No change to this Agreement or
a Contract will be effective unless it is in writing and signed by authorized
representatives of both you and NCR. Changes to Contracts should be made on
NCR's change control form.
3.0 DELIVERY AND INSTALLATION
3.1 Delivery -- NCR will use reasonable efforts to perform its obligations by
dates included in a Contract. These dates are estimates only. NCR will inform
you of delays as far in advance as reasonably possible. If NCR's performance is
delayed (other than by a force majeure) for an unreasonable time, you may cancel
delivery without penalty.
3.2 Location and Risk of Loss -- NCR will deliver Products to the location that
you specify. If you select the shipping agent, the agent's receipt of the
Products constitutes delivery. Risk of loss passes to you upon delivery. You
agree to inspect Products when you receive them and to notify NCR promptly if
there is any visible damage.
3.3 Installation -- NCR will notify you if Products require a special physical
environment. You agree to provide that environment prior to installation. Upon
request, NCR will provide installation Services which may be separately
chargeable.
4.0 PRICES, INVOICE, PAYMENT, TAXES, AND TITLE
4.1 Prices -- Prices will be included in Contracts. If NCR announces a price
increase for a Product which you have ordered and the Contract specifies
delivery more than 120 days after the price increase becomes effective, NCR may
increase your price for the Product. Price increases for Services or Software
licensed for a periodic fee will only apply to subsequent billing periods.
4.2 Invoice and Payment -- NCR will invoice you (1) for Equipment and Software
-- after shipment, unless NCR stores Equipment or Software for you, in which
case NCR will invoice you when storage begins; (2) for recurring Services -- in
advance; and (3) for non-recurring Services, including the provision of
Deliverables -- after NCR provides them to you. Payment is due when you receive
the invoice. NCR reserves the right to charge late fees if it does not receive
payment within 30 days from the date of the invoice, at the rate of one and one-
half percent per month, or up to the maximum allowed by law, whichever is less.
If you do not pay after NCR notifies you of your default, NCR also may suspend
or terminate applicable Services and repossess or reclaim the applicable
Products without waiving NCR's right to payment.
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4.3 Taxes and Other Charges -- Product prices exclude delivery and installation
charges; charges associated with preparing your 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 you qualify for tax exemptions, you must
provide NCR with appropriate exemption documentation.
4.4 Title -- Title of Equipment passes to you on delivery, except if NCR stores
purchased Equipment for you, title passes to you where and when storage occurs.
NCR retains a purchase money security interest in each Product that you purchase
until you pay for it. You appoint NCR as your agent to sign and file a
financing statement to perfect NCR's security interest. In addition to NCR's
retention of a purchase money security interest in Products, NCR may make its
acceptance of orders subject to the entering into of additional mutually
acceptable credit arrangements, which may include the making of advance
payments.
5.0 SERVICES
5.1 Equipment Warranty and Maintenance Services
5.1.1 During the term of an Equipment warranty or Contract for Equipment
maintenance Services, NCR will maintain the covered Equipment in accordance
with this Section and applicable Policies so that it complies with the
warranties in Section 7.1.b. Unless otherwise stated, the initial term of
a Contract for Equipment maintenance Services is one year and will
automatically renew for additional one year terms unless you or NCR
terminate it. You or NCR may terminate a Contract for Equipment
maintenance Services at any time by providing 30 days advance written
notice. On termination under this Section 5.1.1, NCR will refund the
unapplied portion of any advance payment.
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5.1.2 NCR's Equipment warranty and prepaid or contract maintenance
Services include parts and, if labor is included in the Service, labor
during covered hours. NCR will charge separately for: (1) Supplies; (2)
service calls outside of the applicable scope of contracted Service or
coverage hours; (3) service calls for Equipment that was in good operating
condition at the time of the call; (4) use of specified types of Equipment
above their rated usage levels (which NCR will provide to you at your
request); and (5) per-call Services covering Products outside of warranty
or not on contract maintenance. NCR will also charge separately to repair
Equipment which has failed due to: (i) an alteration to Equipment or
Software or attachment not provided by NCR, approved by NCR in writing or
compatible with NCR's standard interfaces; (ii) your use of Supplies or
products acquired from third parties that are defective or that do not meet
NCR standards or specifications; (iii) your or any third party's
negligence, misuse, or abuse; or (iv) fire, smoke, water, or acts of God.
Replaced parts become or remain NCR's property.
5.1.3 You must maintain the Equipment site consistent with NCR
specifications at your expense, and you must provide safe working
conditions and appropriate utility services for maintenance personnel.
When Equipment is under warranty or a Contract for maintenance Services, or
is loaned to you under Section 9.0, you may not allow anyone other than NCR
or an authorized NCR warranty service provider to maintain it. Before
accepting an order for maintenance Services for Equipment that is not then
under maintenance Services or which anyone other than NCR has installed or
serviced, NCR may inspect and refurbish it at your expense. Orders for
maintenance Services must include all of the same type of Equipment at a
location.
5.1.4 If NCR provides Services for products you acquire from third
parties, NCR will maintain those products in good operating condition
during the term of the Contract for those Services. NCR will not assume
the manufacturer's warranty obligations or make modifications specified by
the manufacturer unless otherwise agreed in writing.
5.2 Software Services
5.2.1 During the term of a Software warranty or Contract for Software
Services, NCR will perform the following in accordance with this Agreement
and applicable Policies: (1) provide telephone access to NCR support
resources to assist in resolving Software problems; and (2) distribute, at
your request, Software updates. NCR will announce the availability of
updates via internet postings or otherwise. Unless otherwise stated, the
initial term of a Contract for Software Services is one year and will
automatically renew for additional one year terms unless you or NCR
terminate it. You or NCR may terminate a Software Services Contract at any
time by providing 30 days advance written notice. On
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termination under this Section 5.2.1, NCR will refund the unapplied portion
of any advance payment.
5.2.2 NCR will provide Software Services for the most recent release and
the prior release of covered Software. Software Services for the prior
release may not include updates or code level fixes. When you order
Software Services, you must order the same level of service (to the extent
available) for all interdependent Software operating on the same Equipment.
If you have licensed multiple copies of the same Software, you must order
Software Services for each copy used at the same location.
5.2.3 To permit NCR to provide Software Services, upon request you agree
to assist in isolating Software problems. You also agree to provide modems
and telephone lines for NCR to access your system remotely, to install and
test all fixes and updates, and to perform other actions reasonably
requested by NCR.
5.3 Professional Services -- When NCR performs Services for you, NCR may
provide you with "Deliverables." Deliverables may include: (1) custom or third
party Software in executable or source code form; and (2) written, visual, or
audio materials such as architectural designs, data models, and training
materials in either written or electronic form; which relate to your information
processing systems. Software Deliverables may be subject to additional terms
and conditions contained in an Addendum.
6.0 LICENSE TO USE SOFTWARE AND DELIVERABLES
6.1 Scope -- Subject to your payment of all one-time or periodic license fees,
NCR grants you a non-transferable, non-exclusive license to use Software and
Deliverables under the terms of this Agreement. Unless the Contract or
applicable Policies specify that the license to Software is periodic, your
license is perpetual. If the Contract or applicable Policies do not specify
usage terms such as the number of users or site license rights, you may use
Software at any time on a single processing unit of the class and model for
which you originally licensed it. You may use Software in object code only,
unless you and NCR agree to additional terms regarding the use of source code.
The license term for Software and Deliverables begins on delivery. Your license
to use Software or Deliverables terminates automatically if you violate the
license terms. When a license terminates, you will immediately stop using the
Software or Deliverables and either return or destroy all copies.
6.2 General -- You may not copy Software or Deliverables; transfer, disclose,
sublicense or distribute them to any party; or use them other than as allowed by
this Agreement or a Contract, except that, subject to Section 2.4, (a) you may
transfer Software and Deliverables to your affiliates who agree to be bound by
this Agreement, (b) you may give access to the Software and Deliverables to your
consultants who
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agree to be bound by the license terms of this Section 6.0 and the Contract, for
the sole purpose of performing consulting services for you, and (c) if you
transfer Equipment to a third party, you may transfer Software running on that
Equipment to the third party for that party's internal use only (and not for
resale or redistribution) if you notify NCR and give the other party a copy of
the license terms of the Contract, including this Section 6.0 and all usage
limitations. The license transfer will be effective when the third party accepts
the terms by initial use of the Software and pays any applicable relicense fees.
You will retain copyright notices and proprietary legends on all copies of
Software and Deliverables you possess or transfer. Software and Deliverables
remain the property of NCR or its licensors. You will not take any steps, such
as reverse assembly or reverse compilation, to derive a source code equivalent
of Software.
6.3 Diagnostic Software -- NCR may provide Products to you that include
software, data, documentation, and other material that NCR uses to diagnose the
operation of 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 XXX
Xxxxxxxxxxx. Diagnostic Tools are the confidential intellectual property of NCR
and are provided solely to assist NCR in supporting its Products. They may not
be copied, disclosed to any third party (except under the same terms as under
Section 6.2(c)), or used by any person for any purpose whatsoever without NCR's
express written consent. NCR may delete or remove Diagnostic Tools at any time
without notice. NCR PROVIDES NO WARRANTIES FOR DIAGNOSTIC TOOLS AND IS NOT
LIABLE FOR THEIR USE BY ANY PERSON OTHER THAN NCR.
7.0 WARRANTIES
7.1 Equipment, Supplies, Software, and Services - NCR warrants that:
(a) Title in Equipment and Supplies will be free and clear except for NCR's
security interest.
(b) Equipment, Supplies, and Software media will be free from defects in
material and workmanship and will conform to NCR Product Specifications.
Software operation will materially conform to NCR Product Specifications
(except for Software Deliverables, which are covered in 7.1(c) below).
(c) Deliverables, including Software Deliverables, will materially conform
to the specifications included in the applicable Addendum.
(d) Equipment and Software listed in the "NCR Year 2000 Qualification List"
("Qualified Products") at the time of acquisition from NCR will comply with
the "NCR Year 2000 Qualification Requirements Definition" in effect at the
time of acquisition. Both the Qualification List and the Qualification
Requirements
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Definition will be made available to you at your request. This warranty
applies only to the performance of the Qualified Products themselves, and
does not extend to the use of Qualified Products in combination with other
products, whether acquired from NCR or not. Notwithstanding Section 7.2,
this warranty is not limited in duration.
(e) It will provide Services in a professional manner consistent with
Section 5.0, any Contract, and applicable Policies in effect at the time
the Services are rendered.
Equipment may include used components, which will not affect the applicable
warranties.
7.2 Warranty Period -- Unless otherwise specified in a Contract or Policies at
the time of delivery, the warranty period for Equipment and Supplies is 90 days,
and for Software and Deliverables is 30 days. 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 not
be incorporated into other copies of the same Software which are not then under
warranty or a Contract for Software Services.
7.3 Nonconformance with Warranties -- If Equipment, Software (except Software
Deliverables, which are covered by the next sentence), or Supplies do not
conform to their warranties during the applicable warranty period, NCR will
without charge: (a) under Section 5.1 repair Equipment or replace it with a new
unit of Equipment that is at least functionally equivalent; (b) under Section
5.2 correct Software; or (c) replace Supplies. If NCR does not perform Services
as warranted (including by providing Deliverables that do not conform to their
warranties) and you provide prompt notice, NCR will use its best efforts to
reperform them.
7.4 Refunds
7.4.1 If NCR is unable to repair, correct, or replace Equipment, Software
(except Software Deliverables, which are covered by Section 7.4.2), or
Supplies under Section 7.3 within a reasonable time, you may return the
defective Product and obtain a refund, or you may accept the Product "as
is."
7.4.2 If NCR is unable to reperform Services as warranted under Section
7.3 within a reasonable time (including by correcting any non-conforming
Deliverables), you may terminate the Contract and obtain a refund of your
payments to NCR for those Services and/or associated Deliverables. Your
refund for a fixed term Services Contract will not exceed your most recent
payment for such Services.
7.4.3 If NCR makes a warranty in a Contract that does not have a specified
remedy for its failure, and a problem arises concerning that warranty, you
will
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notify NCR promptly in writing, and NCR will without charge correct the
problem. If NCR is unable to correct the problem within a reasonable time,
you may return the affected Product(s) and obtain a refund.
7.4.4 Any refund under this Section 7.0 will be reduced on the same basis
as you depreciate the Product(s) in your financial statements, calculated
from the delivery date. If you do not depreciate the Product(s), the
refund will be reduced on a 5-year straight-line basis.
7.5 Warranty Services -- NCR will provide warranty Services under the
applicable Policies in effect when it delivers the Products. You may separately
purchase expanded warranty Services from NCR, when available.
7.6 EXCEPT FOR WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT OR A
CONTRACT, NCR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING. NCR DOES NOT WARRANT THAT
PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES,
ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. NCR HAS NO WARRANTY
OBLIGATION FOR PRODUCTS THAT YOU ACQUIRE FROM THIRD PARTIES, EVEN IF NCR
ASSISTED IN EVALUATING OR SELECTING THEM. THE FAILURE OF PRODUCTS YOU ACQUIRE
FROM THIRD PARTIES OR THEIR SUPPLIERS WILL NOT AFFECT YOUR OBLIGATIONS TO NCR.
IF NCR DESIGNATES THAT PRODUCTS ARE PROVIDED "AS IS," THERE IS NO WARRANTY.
7.7 Exclusive Remedies -- Your rights and remedies set forth in this Agreement
or a Contract are exclusive and in lieu of all other rights and remedies related
to any Contract or Product (except to the extent that applicable law prohibits
agreements to disclaim warranties or limit liabilities).
8.0 YOUR OBLIGATIONS
The successful performance of our Products depends on your knowledgeable
selection and operation of the Products and your reasonable cooperation with
NCR. Your obligations include, unless otherwise agreed:
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(a) determining whether the Products, if they perform as warranted, will
meet your specific requirements;
(b) giving NCR sufficient, free, and safe access to your facilities, free
of any hazardous materials (e.g., asbestos) or conditions;
(c) providing back-up equipment and services to safeguard your programs,
data and funds;
(d) giving NCR reasonable access to your employees, including clearly
identified key contacts;
(e) obtaining the commitment of your management to the success of the
Products and communicating that commitment to all of your employees;
(f) appropriately educating your employees on the use of the Products;
(g) giving NCR information that it requests that is reasonably relevant to
your implementation or operation of the Products;
(h) obtaining any necessary governmental permits or consents;
(i) implementing and operating the Products;
(j) testing and operating Software and all Software updates; and
(k) documenting Software problems.
If you cause a delay in NCR's performance under a Contract, NCR may charge you a
reasonable amount for accommodating you.
9.0 PRODUCT EVALUATION
NCR may loan Products to you for your evaluation. You and NCR will agree in
advance on: (1) the length of the evaluation period; (2) prices if you elect to
acquire the Products; (3) the post-evaluation warranty periods, if any; and (4)
who will bear related costs of freight, installation/deinstallation and
maintenance. The evaluation period will begin when NCR delivers the Products to
you. At the end of the evaluation period, you will make the Products available
for return to NCR, or NCR will invoice you for the Products at the agreed
prices. You agree not to move the Products to another location during the
evaluation without NCR's consent. DURING YOUR EVALUATION, PRODUCTS ARE
FURNISHED TO YOU "AS IS." IF YOU ARE DISSATISFIED WITH THEM FOR ANY REASON,
YOUR EXCLUSIVE REMEDY WILL BE NCR'S REMOVAL OF THE PRODUCTS FROM YOUR SITE.
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10.0 DEFENSE OF INFRINGEMENT CLAIMS
NCR will defend at its expense any claim or suit brought against you alleging
that any Product infringes a patent, copyright or trade secret and will pay all
costs and damages finally awarded, if you promptly notify NCR of the claim and
give NCR (a) the information and cooperation that NCR reasonably asks for, and
(b) sole authority to defend or settle the claim. In handling the claim, NCR
may obtain for you the right to continue using the Product or replace or modify
the Product so that it becomes non-infringing. If NCR is unable to reasonably
secure those remedies, as a last resort NCR will refund the purchase price for
infringing Equipment and refund one-time license fees for infringing Software.
The refund will be reduced on the same basis as you depreciate the infringing
Product in your financial statements. If you do not depreciate it, the refund
will be reduced on a 5-year straight-line basis. NCR is not obligated to
indemnify you under this Section 10.0 if the alleged infringement is based on
the use of the Product with other products not furnished directly by NCR, or on
NCR's compliance with any designs, specifications or instructions provided by
you, or if anyone other than NCR has modified the Product. THIS SECTION STATES
NCR'S ENTIRE LIABILITY FOR INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS,
AND OTHER INTELLECTUAL PROPERTY RIGHTS.
11.0 NCR'S LIABILITY
Circumstances may arise where, because of NCR's default or other liability, you
are entitled to recover damages from NCR. In each such instance, regardless of
the basis on which you become entitled to claim damages, your sole remedy, and
NCR's entire liability (except to the extent that applicable law prohibits
agreements to limit liabilities), is as follows:
11.1 For failure (i) of Equipment, Supplies, and Software (other than Software
Deliverables, which are covered by the next clause) to conform to their
warranties during a warranty period, (ii) to perform Services (including by
providing Deliverables that do not conform to their warranties) as warranted,
and (iii) any warranty as set out in Section 7.4.3, as stated in Section 7.0.
11.2 For delays in delivery, as stated in Section 3.1 or as otherwise provided
in a Contract.
11.3 For your dissatisfaction with Products that NCR loans to you, as stated in
Section 9.0.
11.4 For infringement of patents, copyrights, trade secrets, and other
intellectual property rights, as stated in Section 10.0.
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11.5 For bodily injury, including death, caused by NCR's negligence, NCR's
liability will be unlimited, to the extent NCR's negligence caused the injury.
For physical damage to tangible property, NCR will be liable for direct damages
up to $2,000,000 per occurrence, to the extent NCR's negligence caused the
damage.
11.6 FOR ALL CLAIMS NOT EXPRESSLY ADDRESSED IN SECTIONS 11.1 THROUGH 11.5 (OR IF
THE REMEDIES IN THOSE SECTIONS ARE HELD TO HAVE FAILED OF THEIR ESSENTIAL
PURPOSE OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE), INCLUDING BUT NOT
LIMITED TO CLAIMS OF FRAUD OR MISREPRESENTATION ARISING OUT OF OR RELATED IN ANY
MANNER TO THE PERFORMANCE OF ANY OBLIGATIONS UNDER A CONTRACT, NCR'S CUMULATIVE
LIABILITY (INCLUDING REFUNDS AND THE VALUE OF REPLACEMENT PRODUCTS GIVEN TO YOU)
WILL BE LIMITED TO YOUR PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT YOU PAID
NCR FOR THE APPLICABLE PRODUCT IN CONTROVERSY.
11.7 UNDER NO CIRCUMSTANCES ARE NCR, OR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES; OR FOR LOSS OF PROFITS, REVENUE, OR DATA;
WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE,
EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
11.8 SECTIONS 11.6 AND 11.7 WILL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED
REMEDY.
12.0 DISPUTE RESOLUTION
12.1 Negotiation, Escalation and Mediation -- If any controversy or claim arises
relating to this Agreement or any Contract, you and NCR will attempt in good
faith to negotiate a solution to our differences, including progressively
escalating any controversy or claim through senior levels of management. If
negotiation does not result in a resolution within 15 business days of when one
party first notifies the other of the controversy or claim, you and NCR will
participate in good faith mediation as administered by the American Arbitration
Association.
12.2 Arbitration -- Any controversy or claim between you and NCR, whether based
on contract, tort, statute, or other legal theory (including but not limited to
any claim of infringement, fraud, or misrepresentation) which cannot be resolved
by negotiation or mediation will be resolved by binding arbitration under this
Section 12.2 and the then-current Commercial Rules and supervision of the
American Arbitration Association. The duty to arbitrate will extend to any
employee, officer, shareholder, agent, or affiliate of you or NCR making or
defending a claim which would be subject to arbitration if brought by you or
NCR. If any part of this Section 12.0 is held to be unenforceable, it
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will be severed and will not affect either the duty to arbitrate or any other
part of this Section 12.0. The arbitration will be held in the United States
headquarters city of the party not initiating the claim before a sole arbitrator
who is knowledgeable in business information and electronic data processing
systems. The arbitrator's award will be final and binding and may be entered in
any court having jurisdiction. The arbitrator will not have the power to award
punitive or exemplary damages, or any damages excluded by, or in excess of, any
damage limitations expressed in this Agreement or a Contract. Issues of
arbitrability will be determined in accordance solely with the federal
substantive and procedural laws relating to arbitration; in all other respects,
the arbitrator will be obligated to apply and follow the substantive law of the
state of New York, as provided by Section 13.9.
12.3 Costs -- Each party will bear its own attorney's fees and other costs
associated with the negotiation, mediation, and arbitration provided for by this
Section 12.0, except that costs and expenses of arbitration other than
attorney's fees will be paid as provided by the rules of the American
Arbitration Association. If court proceedings to stay litigation or compel
arbitration are necessary, the party who unsuccessfully opposes such proceedings
will pay all associated costs, expenses and attorney's fees which are reasonably
incurred by the other party.
12.4 Two Year Limitation -- Neither you nor NCR may bring a claim or action
regardless of form, arising out of or related to this Agreement, including any
claim of fraud or misrepresentation, more than two years after the delivery of
any Products at issue, or more than two years after cause of action accrues,
whichever is later.
12.5 Confidentiality - In order to facilitate the resolution of controversies or
claims between you and NCR, you and NCR will keep them confidential, including
details regarding negotiations, mediation, arbitration, and settlement terms.
12.6 Substitute Products -- Your acceptance of refunds or substitute Products
under this Agreement waives all claims relating to the nonperforming Products
involved.
13.0 MISCELLANEOUS TERMS
13.1 Effective Date; Non-Waiver; Assignment -- The cover page of this Agreement
specifies the effective date. If the date is left blank, the date NCR signs
this Agreement or first provides Products to you is the effective date. Failure
to enforce any term of this Agreement or a Contract is not a waiver of future
enforcement of that or any other term. Neither you nor NCR may assign this
Agreement, a Contract, or its rights or obligations under them without the
express written consent of the other, except NCR may assign this Agreement or a
Contract to an affiliate and may use subcontractors or resellers to fulfill its
obligations. NCR will remain liable for such performance as if NCR performed
the work itself.
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13.2 Severability -- If any provision of this Agreement or a Contract is held to
be illegal, invalid, or unenforceable, the provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remaining provisions of this Agreement or the Contract will remain in full force
and effect.
13.3 Termination -- This Agreement will remain in effect until you or NCR
terminate it on 30 days advance written notice. Termination of this Agreement
will not terminate any existing Contract.
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:
(a) the admission by either party in writing of its inability to pay its
debts generally or the making of a general assignment for the benefit of
creditors;
(b) any affirmative act of insolvency by either party or the filing by or
against any party of any petition or action under any bankruptcy,
reorganization, insolvency arrangement, liquidation, dissolution or
moratorium law, or any other law or laws for the relief of, or relating to,
debtors; or
(c) the subjection of a material part of either party's property to any
levy, seizure, assignment or sale for or by any creditor, third party or
governmental agency.
13.5 Confidentiality; Customer References -- Except as required by law, you and
NCR will keep the terms and conditions of this Agreement and of Contracts,
including pricing, confidential; provided, however, that NCR may without your
consent disclose to third parties that you are a customer of NCR 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 you at the address
on the face of this Agreement, and you will send notices to NCR at its local
district office or other designated address, with an additional copy to:
General Counsel/Notices WHQ-5
XXX Xxxxxxxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxx.xxxxxxx@xxxxxxXX.xxx.xxx
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Either party may change its address upon notice as required by this Section.
13.7 Geographic Scope -- This Agreement applies only to the United States; NCR
will not provide Products, including warranty or maintenance Services, outside
the United States. You may not export Products without appropriate approvals
from the United States and foreign government.
13.8 Force Majeure -- Neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots,
strikes, fire, or other causes beyond its reasonable control, except for your
obligation to make payments.
13.9 Choice of Law -- New York law governs this Agreement, except for its laws
regarding choice of law and as stated in Section 12.2; the United Nations
Convention on Contracts for the International Sales of Goods does not apply.
THIS AGREEMENT TOGETHER WITH ANY CONTRACTS SETS OUT THE ENTIRE AGREEMENT WITH
RESPECT TO YOUR ACQUISITION OF PRODUCTS FROM NCR. YOU ACKNOWLEDGE THAT YOU HAVE
READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT.
Executed on your behalf by: XXX XXXXXXXXXXX
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxx
------------------------------ ------------------------------
Authorized Signature Authorized Signature
Xxxxxxx Xxxxxx Xxxx Xxxxx
------------------------------ ------------------------------
Printed Name Printed Name
3/3/99 3/12/99
------------------------------ ------------------------------
Date Date
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