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<br />ATTACHMENT A
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<br />1. PRICE: PAYMENT; TAXES. . Customer agrees to pay the unit price of each item of
<br />hardware or software (collectively "Products') or service described in this Sales Agreement
<br />("Agreemenfì or on an invoice, togerœr with any other itemized charges, fees and costs (the
<br />"Price') lbe ClureDCY to be used foc payment of the Price is the United States Dollar Except
<br />for breach by NAC!!, tennination of this Agreement shall not affect Customer's obligation to
<br />pay the Price.
<br />Interest on any past due obligation shall accrue at the rate of one and one-half percent
<br />(""%) per mooth or allbe maximwn ..te allowed by law. All prices are exclusive of applicable
<br />taxes or other charges Imposed by law and are F.O.B. Custom:r's site.
<br />2. TITLE; RISK OF LOSS; SECURITY INTEREST; REMEDIES UPON DEFAULI.
<br />. Title to and ownership of each Product sold pursuant to the tenDS and provisions of this
<br />Agreement shall remain in NACR until payment is made in fuJl. including any additional
<br />charges provided for herein. Risk ofloss to the Products shall pass to Customer upon delivery.
<br />NACR reserves a purchase mooey security interest in and to the Products, together with
<br />the cost of any services related thereto, sold herelDlder as security for perfonnance of the
<br />Customer's oblIgations and may me the Agreement, together with any attaclunents thereto
<br />providi11) a description thereof: as notice of such interest. Customer appoints NACR as its agent
<br />to sign and file a financing statement to perfect NACR's security interest.
<br />In the event that Customer fails to pay according to the terms and provisions of this
<br />Agreement or an invoice, or fails to perform any of its obligations pursuant to the terms and
<br />provisions of this Agreement, NACR at its option may do any or all of the following: (i) upon
<br />notice to Customer, tenninate this Agreement oc any other agreement between NACR and
<br />Customel; (ii) regardless ofwœther this Agreement is terminated, suspend further perfOIIßance
<br />IUlder this Agreement and any other agreement between NACR and Customer; and (iii) retain all
<br />or a poction of the security deposit, if any, previously paid by Customer as an offset to
<br />Customer's liability fOr such default. Customer shall in any event remain fully liable for
<br />damages resulting trom Cnstomer's breach, including, but not limited to, all costs and expenses
<br />incurred by NACR on account of such breach, including costs of arbitration and reasonable
<br />attorneys' fees. The rights afforded NACR herelDlder shall not be deemed to be exclusive but,
<br />iMtcad, ,hall be in addition to anyrighis orremedie, provided bylaw.
<br />3. WARRANTIES; DISCLAIMERS. - NACR represents and warrants that Uporl the sale
<br />of a Product to Customer, NACR will be the lawful owner thereof: ftee and clear of any liens
<br />and encumbranœs (other than those that may arise IDlder the tems and provisions of this
<br />Agreement). and NACR has the full right, power, and authority to sell, deliver, or provide the
<br />Product to CustOOIer.
<br />NACR warrants the Products to the same extent and term as those offered by the original
<br />equipment manufacturer. Products sold under the terms and provisions of this Agreement are
<br />warranted to be tree ftom defects in material and workmanship for a period of one year from the
<br />date of installation for NACR-installed Products or ooe year from the date of delivery for
<br />Customer-installed Products. Certain Products, including specialized software Products, may be
<br />subject to a ninety (90) day warranty. All Products sold IDlder the tems and provisions of this
<br />Agreement are warranted to opetale in accordance with the standard specifications or
<br />documentation accompanying each Product. If a Product Wls to operate during the warranty
<br />period, Customer shaI1 promptly notify NACR in writing of any warranty claim in sufficient
<br />detail to describe both the problem and its symptom;. NACR, at its option, will replace or
<br />repair the Product without charge. Avaya requires that dealer warranty statements contain the
<br />following notice: Products may contain remanufactured parts that are equivalent to new in
<br />performance and appearance.
<br />Neither this walTanty nor post-warranty maintenance service covers repair for damages to
<br />Products or Product components or malfunctions caused by (i) misuse, neglect, power failures or
<br />surges, lightning, fire. flood, or accident; (ii) use of products or facilities supplied by others; (ìii)
<br />failure to follow instaJlation, operation or maintenance instructions. or failure to pennit remote
<br />access; oc (iv) force majeure conditions specified in Section 7.
<br />THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY
<br />AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br />PURPOSE EACH OF WHICH NACR DISCLAIMS AND ARE EXCLUDED" NACR SHALL
<br />NOT BE 'LIABLE FOR DAMAGES, INCLUDING SPECIAL AND INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES, NETWORK DOWNTIME, INTERRUPTION OF
<br />BUSINESS ARISING OUT OF OR IN CONNECTION WITH PERFORMANCE OF THE
<br />PRODUCTS OR USE BY CUSTOMER. NACR DOES NOT WARRANT ERROR-FREE
<br />OPERATION OF THE PRODUCTS OR SERVICES PROVIDED HEREIN. NACR MAKES
<br />NO EXPRESS WARRANTY THAT THE PRODUCTS ARE IMMUNE FROM OR WILL
<br />PREVENT EITHER FRAUDULENT INTRUSION OR UNAUTHORIZED USE. NACR
<br />WILL NOT BE RESPONSIBLE FOR UNAlITHORlZED USE (OR CHARGES FOR SUCH
<br />USE) OF COMMON CARRIER TELECOMMUNICA'DONS SERVICES OR FACILITIES
<br />ACCESSED THROUGH OR CONNECTED TO THE PRODUCTS (TOLL FRAUD).
<br />UNLESS OTHERWISE AGREED IN THIS AGREEMENT, CUSTOMER IS SOLELY
<br />RESPONSmLE FOR ENSURING THAT CUSTOMER'S NETWORKS AND SYSTEMS
<br />ARE ADEQUATE I. Y SECURED AGAINST UNAUTHORIZED INTRUSION.
<br />If the Products are to be used either on or to support Telephony over Transmission
<br />Control Protocol/Internet Protocol rrcP/IP) facilities, NACR requires that a network assessment
<br />be peñOßt1ed prior to installation to determine network performance, reliability, and security.
<br />Even when the Products perform as warranted, Customer may still experience certain
<br />compromises in performance, reliability, and security. CUSTOMER ACKNOWLEDGES
<br />THAT CUSTOMER IS AWARE OF THESE RISKS AND CUSTOMER HAS DETERMINED
<br />THAT THEY ARE ACCEPT ABLE FOR CUSTOMER'S APPLICATION OF THE
<br />PRODUCTS. In the event that Customer refuses to authorize a pre-installation network
<br />assessment and performance problems are encolDltered and determined to be associated with
<br />network performance, reliability. or security issues, Customer shall be solely responsible for all
<br />costs associated with post-Installation network assessment and network recoofiguration.
<br />4. SERVICES AND TIMING. - Services not specifically itemized are not provided
<br />CUSTOMER IS SOLELY RESPONSIBLE FOR SYSTEM BACK-UP PRIOR TO
<br />COMMENCEMENT OF SERVICES OR INST ALLA TION OF A PRODUCT
<br />5. INDEPENDENT CONTRACTOR. - NACR shall conduct its business as an
<br />independent contractor with respect to Customer. NACR will. at all times, represent to third
<br />persons, to the public generally. and to all governmental bodies, including, but not limited to,
<br />federal, state, and local authorities that the business conducted by NACR with respect to
<br />Customer is that of an independent contractor and that such is the sole relationship between the
<br />parties It is expressly understood that NACR is in no way considered the legal representative of
<br />Customer for any purpose whatsoever with respect to this Agreement. Customer shall deduct no
<br />ino'Ome tax or other withOOldings whatsoever from payments due to NACR.
<br />ó. CUSTOMER COOPERATION. - Customer shall cooperate fully with NACR
<br />following a purchase to facilitare peñormance ofNACR's obligations herClDlder, including the
<br />rendition of services or installation of hardware and/or software. Customer shall dedicate such
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<br />time, personnel, and resources as may be reasonably necessary to complele the implementation
<br />or installation Cooperation shall include the following:
<br />. Customer shall designate a coordinator at Customer's site with the knowledge and
<br />authority to make decisions with respect to all of Customer's operations in order for
<br />NACR to meet its obligations herClDlder,
<br />Customer shall make available such data as is necessary to adequately test the Product(s)
<br />and/or service(s); and
<br />If Customer is purchasing an application software solution, Customer shall be responsIble
<br />for the operation of each CPU, including hack-up, in addition to perfonning all program
<br />translation, contacting all third-party vendors to confim that existing hardware and
<br />software will be compatible with the new software, and processing any necessary
<br />changes.
<br />7. FORCE MAJEURE. - NACR shall not be liable for any loss, Wlure, or delay in
<br />furnishing a Product or service resulting from fires, explosions, floods, storms, acts of God,
<br />governmental acts, orders or regulations, hostilities, civil disturbances, mes, labor difficulties,
<br />machinery breakdowns, transportation contingencies, difficulty in obtaining parts, supplic'S, or
<br />shipping facilities, delays of carriers, or any other cause beyond the control ofNACR.
<br />8. ARBITRATION. - NACR and Customer agree to submit all disputes of whatever kind
<br />or nature, whether in law or in equity, arising out of this or any other agreement between the
<br />parties or their atliliates, to binding arbitration only, to be conducted pursuant to the rules of the
<br />American AIbitration Association, such arbitration to be held in a location nrutuaIIy agreeable to
<br />the parties. Notwithstanding the preceding sentence. in the event that third parties are necessary
<br />to aclneve a Just adjudication of the ISSues, either party may conunence a civil action ill a court
<br />of competent jurisdiction having jurisdiction over all such parties. The parties are entitled to
<br />limited discovery under the looal rules of civil procedure for coorls of general jurisdiction. The
<br />parties further agree that any monetary award may be reduced to judgment and docketed in any
<br />court of competent jurisdiction without objection and executioo had thereon. Tins provision
<br />shall survive the termination or canceIIalion of this Agreement. No arbitration or action,
<br />regardless of fonn, arising out of a sale of Products or services may be brought or commenced
<br />by either party more than one (\) year after the dispute, claim, or cause of action arose.
<br />9 LIMITATION OF LIABILITY. - THE ENTIRE LIABILITY OF NACR AND
<br />CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY
<br />PRODUCT DEFECT OR FAILURE. OR ARISING FROM THE PERFORMANCE OR NON-
<br />PERFORMANCE OF ANY WORK OR SERVICE, REGARDLESS OF THE FORM OF
<br />ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE (i) FOR
<br />FAILURE OF PRODUCTS DURING THE WARRANTY PERIOD, THE REMEDIES
<br />STATED IN SECTION 3; (ii) FOR DELAYS IN DELIVERY OR INSTALLATION,
<br />WHICHEVER [S APPLICABLE, NACR SHALL HAVE NO LIABILITY UNLESS THE
<br />DELIVERY OR INSTALLATION DATE IS DELAYED BY MORE THAN THIRTY (30)
<br />DAYS BY CAUSES Naf ATIRIBUTABLE TO EITHER CUSTOMER OR FORCE
<br />MAJEURE CONDITIONS STATED IN SECTION 7, IN WHICH CASE CUSTOMER'S
<br />SOLE REMEDY SHALL BE TO CANCEL THE ORDER WITHOUT INCURRING
<br />CANCELLATION CHARGES AND, WITHIN THIRTY (30) DAYS OF SUCH
<br />CANCELLATION, RECEIVE A REFUND OF ALL MONIES PAID HEREUNDER; OR (ili)
<br />FOR NACR'S FAILURE TO PERFORM ANY afHER MATERIAL TERM OF THIS
<br />AGREEMENT, IF NACR DOES NOT CORRECT SUCH FAILURE WITHIN THIRTY (30)
<br />DAYS OF RECEIPT OF WRITTEN NOTICE ADDRESSING SUCH FAILURE,
<br />CUSTOMER'S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT
<br />WITHOUT INCURRING CANCELLATION CHARGES AND, WITHIN THIRTY (30) DAYS
<br />OF SUCH CANCELLATION, RECEIVE A REFUND OF ALL MONIES PAID
<br />HEREUNDER. NACR SHALL IN NO CASE BE LIABLE FOR INDIRECT OR
<br />INCIDENTAL DAMAGES, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING
<br />BlIT Naf LIMITED TO LOST PROFITS, SAVINGS, OR REVENUES OF ANY KIND,
<br />LOST, CORRUPTED, MISDIRECTED OR MISAPPROPRIATED DATA, CHARGES FOR
<br />COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED
<br />THROUGH OR CONNECTED TO THE PRODUCTS ("TOLL FRAUDÎ, REGARDLESS OF
<br />WHETHER NACR HAS BEEN ADVISED OF SUCH DAMAGES.
<br />10. MISCELLANEOUS.
<br />(a) Merger. This Agreement constitutes the entire agreement between NACR and Customer
<br />with respect to a purchase described herein, superseding all prior and conternporaneous
<br />colTespondence between the parties (including, without limitation, any purchase orders
<br />submitted by Customer to NACR). No provision of tIus Agreement shall be deemed wdived,
<br />amended, or modified by either party unless such waiver, amendment, or modification is in a
<br />writing and signed by the party against whom enforcement is sought.
<br />(b) No Assignment - This Agreement shall not he assignable by either party without the
<br />prior written consent of the other party, and any attempted assignmenl without such consent
<br />shall be void.
<br />(c) Notice. - All notices herein shall be in writing and shall be delivered in person or sent by
<br />facsimile or U.S. Mail, postage prepaid, to the address of the other party as set forth in this
<br />Agreement or to such other address as a party shall designate.
<br />(d) Admo-_t and Authority - By execution hereof, the signer hereby certifies that
<br />he/she has read this Agreement and these terms, understands them, and agrees to all terms and
<br />provisions stated herein. In addition, NACR and Customer warrant to each other that each
<br />respective party has the full right, power, and authority to eJ<ecute this Agreement.
<br />(e) Secreey and ConfldoD1laII1y ~ Each party coveuants and agrees on behalf of itself, it,
<br />officer>, dilectors, employ""" artd agents as follows: (i) all infŒmation obtained ftOIll a party
<br />including, but not limited to, customer lists, customer-sensitive information, business practices
<br />and operations, prici11) and financial information, product plans and designs, and configurations
<br />and layouts is secret, proprietary, and coofidential; (ü) such information shall neither he
<br />disclosed to others nor used for any unauthorized purpose; and (ili) each party shall use its best
<br />efforts to return such information to the orœr party upon tennination of this Agreement. This
<br />provision is limited to the eKlent that such information was in the possession of a party before
<br />disclosuxe, becomes a matter of public record through no fault of. party, or i, released by or at
<br />the direction of a party
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<br />NACR Term' and CORdill..., 12-01-04 Edition
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