UNIVERSAL AGREEMENT
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UNIVERSAL AGREEMENT
NCR Corporation
CONTINUING AGREEMENT FOR EQUIPMENT AND SERVICES
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Clearwater,
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NCR Corporation (NCR) and Customer agree that all equipment, programs,
and systems and maintenance services obtained from NCR, either directly
or indirectly, shall be furnished only under the terms and conditions of
this agreement, Unless the context otherwise requires, the term "Customer"
shall mean the Customer listed above.
The terms and conditions of this agreement shall prevail in spite of any
contrary printed provision of any purchase order or other form utilized by
Customer in effecting the furnishing of any equipment, programs or ser,
vices and any such form, letter or order must state on the face of it:
FURNISHING OF THE EQUIPMENT, PROGRAMS AND/OR SER,
VICES IS DONE ONLY IN ACCORDANCE WITH AND PURSUANT
TO OUR AGREEMENT DATED 7-1-76
IMPORTANT
THESE PROVISIONS ARE Ir\lTENDED TO STATE ALL OF THE RIGHTS
AND RESPONSIBiliTIES BETWEEN NCR AND CUSTOMER, THEY
TAKE THE PLACE OF AND SUPERSEDE ALL WARRANTIES, EXPRESS
OR IMPLIED AND WHETHER OF MERCHANTABILITY, FITNESS OR
OTHERWISE, THE REMEDIES HEREIN CONTAINED ARE EXCLU,
SIVE. CUSTOMER AND NCR WAIVE ALL OTHER REMEDIES INCLUD,
ING BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES.
This Agreement shall be effective only when executed by both parties,
Notice of acceptance is waived although Customer will be furnished a copy
showing acceptance by NC R.
THE TERMS AND CONDITIONS ON THE SUBSEQUENT PAGES ARE
PART OF THIS AGREEMENT
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1. General - Customer may order equipment,
programs and services by submitting an order, here-
after termed the "Order", setting forth 1) the de,
scription, 2) whether to be purchased, rented or
licensed, 3) any cash with order amount and if pur-
chased, whether the remainder is to be in install-
ments or if rented or licensed, the term, 4) the
charge and 5) any other appropriate circumstance
or condition. NCR reserves the right to reject any
Order if in its opinion it cannot comply with the
description or requirements of the Order. Neither
Customer nor NCR shall be bound by any Order
until it is accepted in writing by NCR and at such
time both shall be bound and a contract shall exist
in accordance with the terms of this agreement
and, to the extent not in conflict, the Order. The
Contract, comprised of this agreement and the
Order shall constitute the entire agreement of the
parties and shall supersede all prior agreements and
understandings whether oral or written and all
negotiations, letters, other papers and proposals
except as attached to the Order or specifically in-
corporated by reference. Any applicable NCR
furnished form signed by Customer shall be a part
of the contract.
This Agreement may not be changed or
modified in any way subsequent to the date of ex-
ecution except by an instrument in writing signed
by the Customer and accepted by NC R. No con,
tract or amendment, entered into after this Agree-
ment shall amend by implication any provision of
this Agreement. Any notices required or authorized
to be given shall be deemed to be given when mailed
by certified or registered mail, postage prepaid, as
follows: if to the Customer, to the Customer's ad-
dress as shown on the face of this Agreement; if to
NCR, to its local District Office. This Agreement
shall remain in effect until terminated by either
party on 30 day's prior written notice, Termination
shall not operate to termi nate any contract then
outstanding.
2. Delivery - NCR will use its best efforts to
accomplish delivery by any indicated delivery date.
However, unless otherwise specifically provided,
NCR will not be liable for any expenses or damages
incurred as a result of actual delivery or certification
after such indicated date, if any. All shipments shall
be f.o.b. shipping point. Customer agrees to pay
the appropriate NCR distribution charge, and in
the case of rented equipment back to the distribu-
tion point and due to any change of location of the
equipment. Such charges shall be added to the first
invoice and paid by Customer. Customer agrees to
pay any applicable installation charge. Unless other-
wise provided, title to and possession of traded-in
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equipment will pass to NCR on delivery of the or-
dered equipment.
3. Term and Charges - Each contract for rental
equipment or licensed program shall become effec-
tive on the date of its acceptance by NC R and shall
remain in force, except as otherwise provided, for
the period of the initial term and thereafter until
terminated as provided in paragraph 18. ::rhe initial
term shall begin on the first day of the month for
which full rental is paid, The rental charge shall be,
gin immediately upon certification by NC R that it
is ready for use or on the expiration of the previous
term as the case may be. The program license shall
be paid in accordance with the applicable payment
schedule. The Basic Monthly Rental and any other
equipment charges shall be billed on a calendar
month basis. The Basic Monthly Rental and
scheduled extra charges shall be billed monthly in
advance, and other equipment charges shall be
billed monthly as accrued, Basic Monthly Rental
charges for a fractional part of the calendar month
shall be computed at the rate of 1/30th of the
monthly charge for any day within such fractional
part of a calendar month. Rental rates may be
changed at the expiration of the term on 30 days'
prior written notice or during the term on 90 days'
prior written notice provided that any increase dur-
ing the term shall be limited to the amount of any
increase in NCR's maintenance charges for the unit
or units on which the rent is increased. Payment of
the Basic Rental Charge entitles Customer to the
applicable use of the equipment.
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4. Purchase Price - NCR shall invoice the Cus-
tomer for the purchase price balance or if applicable
the first installment of it upon certification or de,
livery of the equipment by NCR. The entire unpaid
purchase price balance shall, at NCR's option, be-
come due and payable upon refusal to accept de,
livery when tendered, to make any payment when
due or if Customer sells, conceals, removes, dam,
ages or destroys the equipment or attempts to do
so prior to final payment of the entire price, Cus'
tomer may prepay the Time Payment Balance in
advance and shall in such event be entitled to a
credit against the Finance charge determined in
accordance with the rule of "78's".
5. Billing and Payment - All invoices to the
Customer shall be due and payable in accordance
with their terms. Failure to pay any amount when
due shall entitle NCR to collect the late charge or
interest stated on the invoice. If it is necessary to
refer any claim to an attorney not an employee of
NCR, Customer agrees to pay reasonable attorney's
fees provided such is allowed under applicable state
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law. If NCR's established price or rental charge for
any unit of equipment shall be lower on the date
of shipment than in effect at the time the order is
placed, Customer shall have the benefit of such
lower price or rental charge,
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6, Taxes" The stated rental charges, purchase
price, maintenance fees or charges, program license
fees, system service and programming charges or
other amounts to be paid pursuant to any contract
do not include any Federal, State, County or local
sales, use or other excise tax however designated,
whether levied on seller or buyer and whether
based on such price, charge, the equipment, part,
product or service or their use or the contract. Any
such taxes, amounts in lieu of them and interest on
them required to be paid by NCR shall be added to
the invoices and shall be considered as additional
rent if resulting from or arising out of rent. Cus-
tomer shall pay all personal property taxes assessed
after delivery of any equipment, part, product,
program, or service except if equipment is rented
NCR will pay personal property tax. Any taxes to
be paid by Customer but in fact paid by NCR shall
be reimbursed to NCR. In the event any taxes to
be paid by Customer but levied on NCR are not
paid until audit, NCR may then invoice customer,
7. Advance Payment - The advance payment
plus any interest credited to the Customer shall be
applied against the purchase price or the first and
subsequent rental or license fee payments until the
total amount has been exhausted.
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8. Supplies - The price, monthly rental charges,
the warranty, maintenance, programs or other ser-
vices does not include furnishing of supplies or
other expendable items unless otherwise indicated.
NCR agrees to sell to the Customer, at NCR's then
established prices and upon NCR's regular invoice
terms, supplies or other expendable items for use
with the Equipment so long as NCR has them avail-
able for sale. Damage to equipment or other loss
sustained due to use of supplies not meeting NCR
specifications shall be the sole responsibi Iity of
Customer.
9. Patents, NCR will defend, at its expense,
and will pay the cost and damages awarded as are,
suit of any action brought against the Customer
based on the allegation that the equipment or any
unit or part thereof or any program furnished by
NCR infringes a United States patent, provided
that NCH is notified promptly by the Customer in
writing of any such action or allegation of infringe,
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ment, and provided further that NCR shall have
had sole control of the defense of any such action
and all negotiations for its settlement or compro-
mise. In the event that a final injunction shall be
obtained against Customer's use of the equipment
or any unit or part thereof or program by reason of
infringement of a United States patent, or if in
NCR's opinion the equipment or any unit or part
thereof or any program is likely to become the sub-
ject of a claim of infringement of a United States
patent, NCR will, at its option and at its expense,
procure for the Customer the right to continue
using the equipment, unit or part, or program, re-
place or modify the same so that it becomes non-
infringing, or terminate the rental or if purchased,
repurchase the equipment on a depreciated (5-year
straight line) basis. NCR shall not have any liability
to Customer under any provision of this clause if
any patent infringement or allegation thereof is
based upon the use of any program or the equip-
ment or any unit or part thereof in combination
with any program or equipment of any unit or
parts thereof not furnished by NCR or if the equip-
ment is used in a manner for which the equipment
or units or parts thereof were not designed. The
above states the entire liability of NCR with re-
spect to infringement of patents by any program or
by the equipment or units or parts thereof, or by
their operation,
10, Ownership of Software and Confidentiality -
a. The following terms shall be defined as
indicated: "Program" shall mean machine instruc-
tions whether denominated software or firmware,
wherever resident and on whatever media and all
related documentation which is existing and fur-
nished to Customer. "Systems Services" is installa-
tion and operational training and assistance and
programming services. "Programming Services" is
creating a program or modifying an existing pro-
gram to perform particular functions or to
function in a particular manner for the Customer.
b. All Programs furnished by NCR and all
drawings, diagrams, specifications, and other ma-
terial furnished by NCR relating to the use and
service of equipment, including the information
contained therein, shall remain confidential and
proprietary property of NCR. Customer agrees to
continue to treat such information as confidential
and proprietary property of NCR and shall acquire
no rights in them except to use such information
solely for the purpose of and only during the time
it uses the equipment or for the perio.d covered by
any license fee. All such programs and other infor-
mation supplied directly or indirectly by NCR (ex-
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cept such as may be established to be in the general
public domain or which Customer may be required
to disclose pursuant to judicial or governmental
action) shall be received by the Customer in con-
fidence. Customer shall not use or cause to be used
any program or other such information for the
benefit of any other party whether or not for a
consideration unless otherwise agreed, shall not
sell, rent, loan, disclose or otherwise communicate
or make available any such program or other infor-
mation or any part or modification thereof to any
person, shall use the program only in connection
with the equipment designated by type/serial
number unless on backup equipment during the
time required, and shall take all reasonable pre-
cautions to maintain the confidentiality of them,
but not less than that employed to protect its own
proprietary information unless otherwise agreed to
by NCR in writing. In the event the equipment is
rented and rental is terminated (except by pur-
chase), or if the equipment is purchased and Cus-
tomer ceases to use it, Customer shall thereafter
cease to use any program or other information fur,
nished by NCR or any facsimile thereof and shall
promptly delete any program from its library and
return to NCR any material associated therewith
and any copies. In the event that customer desires
to sell purchased equipment to a third party, cus-
tomer may not transfer or provide such data or
material to the purchaser from customer without
the prior agreement of NCR which shall be granted
if, and only if, the purchaser (1) shall have agreed
in writing that it will retain such in confidence to
the same extent as provided in this section 10 and
(2) agrees to the continued payment of periodic
license fees and/or the payment of any relicense
fee in effect at the time of transfer. NCR shall also
have and may accumulatively exercise such further
rights as it might have at law or in equity in such
cases.
c. The Customer shall be the owner of the
product of Programming Services but NCR may re-
tain copies, disclose and further use the product of
the services.
11. Ownership of Equipment and Risk of Loss-
If the equipment is rented, title shall remain in
NCR.. Customer shall not do anything prejudicing
NCR's ownership; nor fail to do anything necessary
to protect NC R's ownersh ip. Customer agrees to
execute any document necessary or desirable, in
NCR's opinion, to ensure its title and ownership.
This Agreement, any contract, and any unit of
equipment may not be assigned, sublet or trans-
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ferred by Customer without NCR's prior written
consent. If the equipment is purchased, title to the
equipment shall pass to the Customer only upon
NCR's receipt of payment of the full purchase
price balance. NCR reserves, and the Customer
hereby grants to NCR, a purchase money security
interest in each unit of the equipment in the
amount of its purchase price, and such security in-
terests shall be satisfied by payment of the pur-
chase price balance in full, NCR may file a financ,
ing statement (NCR being constituted an agent of
Customer to sign on Customer's behalf or Cus-
tomer shall execute if requested by NCR) with
appropriate state and/or local authorities in order
to perfect NCR's security interest. Any such filing
shall not constitute acceptance of this Agreement
by NCR. Upon delivery customer assumes the risk
of loss or damage for purchased equipment. NC R
shall retain the risk of loss or damage for rented
equipment except due to customer's negligence.
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12. Excused Performance - NCR shall not be
deemed to be in default of any provision hereof or
be liable for any delay, failure in performance, or
interruption of service resulting directly or indi,
rectly from acts of God, civil or military authority,
civil disturbance, war, strikes, fires, other catastro,
phies, or other force majeure beyond its reasonable
control.
13. Maintenance - N C R sha II perform remed ia I
maintenance during the applicable maintenance
period:
a) for rented equ ipment
b) for purchased equipment
(1) for a 90-day warranty period begin-
ning on delivery or certification, and
(2) after the 90 day warranty period
upon payment in advance of NCR's
then current maintenance charges for
the specified period as set forth on
the invoice, provided that only
equipment in good condition on the
effective date of any renewal period
shall be accepted for coverage.
Remedial maintenance during other periods may
be available at either a scheduled or hourly basis at
NCR's then current rates. Use of equipment above
designated levels may require additional charges for
equipment on rent or maintenance.
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Customer shall prepare prior to delivery of
equipment, and thereafter maintain at its expense,
the site in accordance with NCR specifications.
Customer shall provide at the site adequate and
suitable working facilities and space for mainte-
nance personnel. As to equipment maintained by
NCR, only NCR shall move or perform service on
it. Replaced parts shall become or remain the pro-
perty of NCR. With respect to any alteration (any
change made to the physical, mechanical or elec-
trical arrangement of the equipment whether or
not additional devices or parts are required) or at-
tachment (the mechanical, electrical or electronic
interconnection of non,NCR equipment marketed
by others) to NCR equipment, NCR will provide
maintenance and repair service for the unaltered
portion of the equipment unless an alteration or
attachment creates a safety hazard or renders main-
tenance and repair impractical. If an alteration,
attachment, use of supplies not meeting NCR
specifications, use of unsupported software, use of
software not furnished by NCR, or modifications
to NCR supported software not performed by
NCR results in an increase in NCR's maintenance
of NCR equipment, such increased maintenance
will be billed at the appropriate increased rate.
Repair or replacement of equipment on
maintenance or warranty necessitated by fire,
water, other casualty, acts of God, or by customer's
negligence or acts of a third party, as well as repair
or replacement of rental equipment necessitated by
customer's negligence is not included in the rent,
warranty, or maintenance service charge and shall
be performed at customer's expense. NCR's
liability to the customer resulting from the per-
formance of maintenance service shall be limited
to restoring the equipment covered by this agree-
ment to good operating condition.
Notwithstanding anything up to the con-
trary, NCR shall have no obligation to perform any
service outside the United States unless otherwise
agreed.
14. Operation
(a) General - The equipment will comply
with applicable safety and other governmental
regulations in effect at the time of manufacture.
Units of equipment sold as new may be composed
in whole or in part of used components which
are warranted the equivalent of new.
(b) Equipment Functioning , If the
equipment is purchased, then for 90 days following
certification or delivery, NCR warrants the equip-
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ment to be in good working order and will at its
expense keep the equipment in good operating or-
der and repair by performing maintenance in ac-
cordance with Section 13. This is the only
warranty made as to the equipment. If the equip'
ment is rented, NCR agrees to keep the equipment
in good operating order and repair by performing
maintenance in accordance with Section 13.
THERE ARE NOWARRANTIESOF MERCHANT-
ABILITY OR FITNESS. NCR'S SOLE OBLlGA,
TION IS LIMITED TO SUCH MAINTENANCE.
(c) Programming Services - NCR agrees
to perform programming services in a skillful and
professional manner and furnish programs in accor-
dance with the specifications as to the intended
functions. NCR will provide, and its obligation
shall be limited to providing programming services
after delivery, without additional charge, to at-
tempt to correct any program error, malfunction
or defect and/or issue corrected releases for any
corporate supported program or programming ser-
vices furnished by NCR. NCR reserves the right to
reclassify its programming services on any pro'
grams on six (6) months notice given by general
publication. Some reclassifications may constitute
a discontinuation of services. NCR assumes no re-
sponsibility for programs which have been altered
or modified by other than NCR representatives.
(d) Limitations - Customer shall arrange
for back-up equipment or service, Customer shall
be solely responsible for proper audit and recovery
routines and procedures. NCR shall not be liable
for any expense or damages incurred by Customer,
whether internal to Customer or paid by Customer
to any third party, which may arise out of failure
of the Equipment to function or due to any mal-
function of the equipment or software upon what-
ever cause of action any claim is based except that
NCR shall be liable for only personal injury
occasioned solely by the negligence of NCR in
design, manufacture, installation or servicing of the
equipment,
(e) Rental Credit, If the equipment is
rented and if a component of the equipment being
maintained becomes inoperative and remains in-
operative for a period of twenty-four (24) sched-
uled maintenance hours or more from the time
Customer notifies NCR until it is returned to good
operating condition (48 hours in Alaska and
Hawaii), NCR shall grant a credit to Customer for
each inoperative hour (not scheduled maintenance
hour) at the rate of 1/720th of the basic monthly
rental charge for such component. A like credit
shall be granted for each interconnected NCR com,
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ponent being maintained which is not usable as a
result of the breakdown. Customer shall not be en-
titled to the credit if the cause of inoperation is due
to the fault or negligence of Customer, fire, water,
and other acts of Godr civil or military authority
or the act of any third party.
15. System Implementation - Customer has the
responsibility for implementing and operating the
system. Systems services furnished to Customer are
to facilitate implementation of the system by Cus'
tomer and are not to be construed as evidencing
any obligation of NCR for implementing or oper-
ating the system. The term "System" shall mean
an integrated group of equipment supplied or
specified by NCR and the NCR furnished pro-
grams utilized with it.
16. System Capability- Any proposal or rec-
ommendation by NCR for the equipment or soft-
ware ordered respecting the capability of the sys-
tem to perform applications of, or produce certain
results for, Customer is based on NCR's best ef-
forts to provide an operational system for Customer.
It shall constitute a commitment on the part of
NCR only if a) it is attached to the Order or speci-
fically incorporated by reference AND b) eus'
tomer cannot itself verify system capability in ad,
vance of equipment delivery.
CUSTOMER ACKNOWLEDGES ITS OBLlGA,
TION TO NCR TO VERIFY SYSTEM CAPABIL,
ITY IN ADVANCE OF DELIVERY WHENEVER
POSSIBLE,
When programming is to be performed by
Customer prior to delivery of the equipment, Cus-
tomer agrees that it has, as of the date of the order
or will have prior to delivery, a sufficient number of
competent and adequately trained personnel to ac-
complish evaluation and implementation and there-
after to operate the system efficiently. Because of
this capability and because it has the better know-
ledge of its operations, methods and volumes,
Customer has, or will have prior to delivery of the
equipmentr the better expertise to itself evaluate
system capability. Failure to inform NCR in writ-
ing prior to delivery that the system will be inade-
quate or not suitable to perform the intended
applications will be conclusively deemed to be an
agreement by the Customer that the equipment is
suitable for the intended applications and will
produce the anticipated results and no claim of
reliance on any NCR recommendation or proposal
will be made. In the event that prior to delivery it
is mutually determined that the system will not
perform substantially as represented, Customer
may at its option accept revised performance cri-
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teria or terminate this Agreement without liability
of either party except for return of any advance
payment,
I n the event that system capabi I ity cannot
be verified by Customer in advance of delivery, and
it later appears that the system cannot perform as
contemplated, then the contract 1) may be termi-
nated by either party without liability ~xcept any
payments previously made to NCR shall be re-
funded, less the reasonable value of services re-
ceived from the system or 2) may be amended to
provide equipment and/or software necessary to
perform as rep resented,
17. Other Equipment and Software - I n the
event that equipment which is neither sold nor
rented nor specified by NCR is attached by Cus-
tomer either mechanically or electrically to any
unit of NCR equipment or in the event that unsup-
ported software is used or any modification is
made to any NCR supported software except by
NCR or any program is used not furnished by
NCR, NCR assumes no responsibility and shall not
be liable for a) the proper functioning of the sys-
tem or of any unit of equipment except for main-
tenance service under Section 13 or b) the capabil,
ity of the system or c) infringement of any patent
resulting from the combination, Notwithstanding
anything to the contrary, Customer assumes all risk
of loss or damage to NCR furnished equipment
arising out of such attachment.
18. Termination - A contract for specific equip'
ment, programs or services resulting from an
accepted order may be terminated under the
following conditions:
a) Either party may terminate a rental or
license contract at the expiration of the
initial term or any time thereafter upon BO
days' prior written notice without liability
to the other. Any maintenance contract
may be terminated at any time on 30 days'
notice.
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b) Either party may, at its election, and
without prejudice to any other right or
remedy, terminate the contract upon the
filing of a petition in bankruptcy by or
against the other, or should the other make
an assignment for the benefit of creditors,
or should a receiver be appointed or ap-
plied for by the other.
c) NCR may, at its election, and without
prejudice to any other right or remedy
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unless pursuant to Section 16, treat any
contract as terminated by Customer in
the event the Customer cancels or attempts
to cancel the contract prior to delivery, re-
fuses delivery, fails to pay after 10 days'
prior written notice any payment due, or
wilfully violates the confidentiality pro,
vi'sions of Section 10, In such event, NCR
may without further notice reclaim and/or
repossess the equipment and any program
or other software materials and the media
they are on, In the case of a rental contract
or program license, NCR shall be entitled
to the total amount due under it less
amounts previously paid and costs which
will not be incurred thereafter by NCR.
d) In accordance with Section 16,
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19, Disputes - Any controversy or claim, in-
cluding any claim of misrepresentation, arising out
of or related to this Agreement and/or any con-
tract hereafter entered into between NC R and Cus-
tomer, or the breach thereof, or the furnishing of
any equipment or service by NC R to Customerr
shall be settled by arbitration. The arbitration shall
be conducted by a single arbitrator under the then
current rules of the American Arbitration Associa-
tion, provided that the arbitrator shall be chosen
from a panel of persons knowledgeable in business
information and data processing systems. The deci-
sion and award of the arbitrator shall be final and
binding and the award so rendered may be entered
in any court having jurisdiction thereof. The arbi-
tration shall be held and the award shall be deemed
to be made in the city where the NCR district of-
fice procuring the order is located.
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