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<br />ATTACHMENT A
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<br />1. PRICE; P A YMEl''o'T; 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 />("Agreemenl"}oron an invoice. logether with any other itemized charges. fees and costs (the
<br />"Price"). The currency to be used for payment oflhe Price is the United Stales Dollar. Except
<br />fOT breach by NACR, 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 -halfpe:rcenl
<br />(l Y.,%) per month or at the maximum rate allowed by Jaw. All prices are e~clusive of applicable
<br />(axes or other charges impOled by law and are F.O.B. Customer's site.
<br />2. TITLE; RISK OF LOSS; SECURITY INTEREST; REMEDIES UPON DEFAULT.
<br />- Title to and ownership oLeach Product sold pursuant to the teffilS and provisions of this
<br />Agreement shall remain in NACR until payment is made in full, including any additional
<br />charges provided for herein. Risk of loss to the Products shall pass to Customer upon delivery.
<br />NACR reserves a purchase money security interest in and to the Pro\l.ucts, together wilh
<br />the cost of any senices related thereto, sold hereunder as security for perfonnance of the
<br />Customer's obligations and may file the Agreement, together with any attachmenls therelo
<br />providing a description thereof, liS 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 tmns and provisions of this
<br />Agreement or an invoice, or fails to perform any of its obligations pursuant to the tenns and
<br />provisions of this Agreement, NACR at its option may do any or all of the following: (i) upon
<br />notice to Customer, terminate this Agreement or any other agreement between NACR and
<br />Customer, (ii) regardless of whether this Agreement is terminated, suspend further perfonnance
<br />under this Agreement and any other agreement between NACR and Customer; and (iii) retain all
<br />or a portion 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 from Customer's breach, including, but not limited to, all costs and expense~
<br />incurred by NACR on account of such breach, including costs of arbitmtion and reasonable
<br />attorneys' fees. The rights afforded :-fACR hereunder shall not be deemed to be exclusive but,
<br />instead,shallbeinaddilionto any rights or remedies provided bylaw.
<br />3 WARRANTIES; DISCLAIMERS. _ NACR represents and warrants that upon th'e sale
<br />of a Product to Customer, NACR will be the lawful owner thereof, free and clear of any liens
<br />and encumbrances (other than those that may arise under theteffils and provisions of this
<br />Agreement), and NACR has the full right, power, and authority to sell, deliver, or provide the
<br />Product to Customer.
<br />NACR warrants the Products to the same extent and tenn a<; those offered by the original
<br />equipmentmanufac1ureT. Products sold under the terJTIS and provisions of this Agreement are
<br />warranted to be free from defects in material and workmanship for a period of one year from the
<br />date of installation for NACR-installed Products or one 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 under the terms and provisions of this
<br />Agreement are warranted to operate in accordance with the standard specifications or
<br />documentation accompanying each Product If a Product fails to operate during the warranty
<br />period, Customer shall promptly notify NACR in writing of any warranty claim in sufficient
<br />detail to describe both the problem and ils symptoms. 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 thai are equivalent to new in
<br />perfonnall1::e and appearance.
<br />Neither this warranty nor 'Post-warranty maintenance!lCfV'icc covers repalT for damages 10
<br />Products or Product components or malfunctions caused by (i) misuse, neglect, power failures or
<br />surge!!, lightning, fire, flood, or accident~ (ii) use of products or facili ties supplied by others; (iii)
<br />failure to follow installation, operation or maintenance instructions, or failure to pennit remote
<br />access; or (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 IMPLlED, INCLUDrNG THE IMPLlED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br />PURPOSE, EACH OF \lfHICH NACR DISCLAIMS AND ARE EXCLUDED. NACR SHALL
<br />I\'OT 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 PERFOR.\.fANCE 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 If'..'TRUSION OR UNAUTHORIZED USE. NACR
<br />WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED USE (OR CHARGES FOR SUCH
<br />USE) OF COMMON CARRIER TELECOMMUNICATIONS SERVICES OR FACILITIES
<br />ACCESSED THROUGH OR CONNECTED TO THE PRODUCTS (TOLL FRAUD).
<br />UNLESS OTHERWISE AGREED IN TillS .AGREEMENT, CUSTOMER IS SOLELY
<br />RESPONSIBLE FOR ENSURING THAT CUSTOMER'S NETWORKS AND SYSTEMS
<br />ARE ADEQUA TEL Y SECURED AGAINST UNAUTHORIZED INTRUSION.
<br />If the Products are to be used either on or to support Telephony over Transmiss ion
<br />Control Protocolllntemet Protocol (TCPIIP) Facilities, NACR requires that a network assessment
<br />be perfOlmed prior 10 installation to determine network perfonnance, reliability, and security.
<br />Even when the Products perfonn as warranted, Customer may still experience certain
<br />compromise!! in performance, reliability, and. security. CUSTOMER ACKNOWLEDGES
<br />THAT CUSTOMER IS AWARE OF THESE R1SKS AND CUSTOMER HAS DETERMINED
<br />TIfAT THEY ARE ACCEPTABLE FOR CUSTo:\1ER'S APPLICATION OF THE
<br />PRODUCTS. In the event that Customer refuse!! to. authorize a pre-installation network
<br />assessment and performance problems are encountered and determined to be associated \\olth
<br />network performance, reliability, or security issues, Customer shall be solely responsible for all
<br />costs associated with post-installation network asscs!!ment and network reconfiguration.
<br />Software Licenses. Customer agrees that it ha<; read, understood, and will abide by the
<br />terms and provisions of the software license pertinent to the Products purchased hereunder.
<br />Such soF!\'.'are license may be found on the Internet at www.nacr.comundertheProductstab.
<br />4. SERVICES AND TIMING. - Services not specifically itemized are not provided.
<br />CUSTOMER IS SOLELY RESPONSIBLE FOR SYSTEM BACK~UP PRIOR TO
<br />COMME}.TEMENT OF SERVICES OR INSTALLATION OF A PRODUCT.
<br />S. DlDEPENDENT CONTRACTOR. - NACR shall conduct its business as an
<br />independenl 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 lhe business conducted by NACR with respect to
<br />Customer is that ofan independent contractor and that such is the sole relations hipbetweenlhe
<br />parties. It is expressly understood that NACR is in no way considered the legal representative of
<br />Customer for any purpose wlllltsoever with respect to this Agreement. Customer shall deduct no
<br />income tax or other withholdings whatsoever from payments due 10 NACR.
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<br />6. CUSTOMER COOPERATION. - Customer shall cooperate fully with :NACR
<br />following a purchase to facilitate perfonnance ofNACR's obligations hereunder, including the
<br />rendition of services or installation of hardware andlor software. Customer shall dedicate such
<br />time, personnel, and resources as may be reasonably necessary to complete 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 decilions with respect to all of Customer's operations in order for
<br />NACR to meet its obligations hereunder,
<br />Customer shall make available such data as is necessary to adequately test the Product(s)
<br />andlorservice(s);and
<br />IfCultomeris purchasing an application soft'llo'are solution, Customer sh allberesponsible
<br />for the operation of each CPU, including back-up, in addition to performing all program
<br />rranslation, contacting all third.party velldon to confirm Ihat ex.isting 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, failure, or delay in
<br />furnishing a Product or service resulting from fires, explosions, floods, storms, acts of God,
<br />go\"emmental acts, orders or regulations, hllstilities, civil disturbanc eS,strikes,labordifficulties,
<br />machinery breakdowns, transportation contingencies, difficulty in obtaining parts, supplies, 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 disput~l!. of whatever kind
<br />or nature, whether in law or in equity,arising out of this or any other a greemcntbetweenthe
<br />panics or their affiliates, to binding arbitration only, 10 be conducted pursuan ttotherulesofthe
<br />American Arbitration Association, such arbitration to be held in alo cation mutually agreeable to
<br />the parties. Notwithstanding the preceding sentence, in tlle event that third partie sare necC!iSary
<br />to achieve ajusl adjudication oflhe issues, either party maycommen ce a civil action in a court
<br />of competent jurisdiction having jurisdiction over all such parties. The parties are entitled to
<br />limiled discovCTyunder the local rules of civil procedure for court!i 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 execution had thereon. This provi!!ion
<br />shall survive the tCffilination or cancellation 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 tban one (1) year afterlhe dispute, claim, or cause 0 faclionarose.
<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 FA1LURE, OR ARISING FROM THE PERFORMANCE OR :NON-
<br />PERFORMANCE OF A:-fY WORK OR SERVlCE, REGARDLESS OF TIm FORM OF
<br />ACTION, WHETHER IN CONTRACT, TORT OR OTHERWrSE, SHALL BE (i) FOR
<br />FAILURE OF PRODUCTS DURING TiiE WARRANTY PERIOD, THE REMEDIES
<br />STATED IN SECTION 3; (ii) FOR DELAYS IN DELIVERY OR INSTALLATION,
<br />WHlCHEVER IS APPLICABLE, NACR SHALL HAVE NO LIABILITY- UNLESS TH~E
<br />DELIVERY OR INSTALLATION DATE IS DELAYED BY MORE THAN THIRTY (30)
<br />DAYS BY CAUSES NOT ATIRIBUTABLE TO EITHER CUSTOMER OR FORCE
<br />MAJEURE CONDITIONS STATED Dr SECTION 7, IN WHICH CASE CUSTOMER'S
<br />SOLE REMEDY SHALL BE TO CANCEL THE ORDER V.'JTHOUT INCURRING
<br />CANCELLATION CHARGES AND, WITHIN THIRTY (30) gAYS OF SUCH
<br />CANCELLATION, RECEIVE A REFUND OF ALL MONIES PAID UNDER THE
<br />PERTINENT MASTER AGREEMENT RIDER OR UNDER THE PER'HNENT SCOPE OF
<br />WORK; OR (iii) FOR NACR'S FAILURE TO PERFORM ANY OTHER MATERIAL TERM
<br />OF THIS AGREEMENT, IF NACR DOES NOT CORRECT SUCH FAILURE 'WITHIN
<br />THIRTY (jO) DAYS OF RECEIPT OF WRITIEN NOTICE ADDRESSING SUCH
<br />FAILURE, CUSTOMER'S SOLE REMEDY SHALL BE TO TERMINATE THIS
<br />AGREEMENT WITHOUT INCURRING CANCELLATION CHARGES AND, WITHrN
<br />THIRTY (30) DAYS OF SUCH CANCELLA nON, RECEIVE A REFUND OF ALL MONIES
<br />PAID UNDER TIm PERTINENT MASTER AGREEMENT RIDER OR UNDER THE
<br />PERTINENT SCOPE OF WORK NACR SHALL IN NO CASE BE LIABLE FOR
<br />INDIRECT OR INCIDENTAL DAMAGES, SPEerAL OR CONSEQUENTIAL DAMAGES,
<br />INCLUDING BUT NOT LIr.mED TO LOST PROFITS, SAVINGS, OR REVENUES OF
<br />ANY KIND, LOST, CORRUPTED, MISDIRECTED OR MISAPPROPRIATED DATA,
<br />CHARGES FOR COMMON CARRlER TELECOMMUNICATION SERV1CES OR
<br />FACIUTIES ACCESSED THROUGH OR CONNECTED TO THE PRODUCTS ("TOLL
<br />FRAUDM), REGARDLESS OF WHETHER NACR HAS BEEN ADVISED OF SUCH
<br />DAMAGES
<br />10. MISCELLANEOUS.
<br />(a) Merger - This Agreement constitutes the entire agreement between NACR and Customer
<br />with n:spcct to a VUrchase described herein, superseding all prior and contemporaneous
<br />cOlTespondence between Ihe parties (including, without limitation, any purchaSe orders
<br />submitted by Customer to NACR) No provision of this Agreement shall be deemed waived,
<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 be assignable by either party without the
<br />prior written consent of the other party, and llJIY attempted assignment without s uch consent
<br />shall be void.
<br />(c) No(lces~ All notices herdn 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) Acknowledgment and Authority - By execution hereof, the signer hereby certifies that
<br />helshe 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 ha<; the full right, power, and authority 10 execute this Agreement.
<br />(e) Seuecy and Confldenllallty - Each party covenants and agrees on behalf of itself, its
<br />officers, directors, employees, and agents as fonows: (i) all information obtained from a party
<br />including, but not limited to, customer lists, customer-sensitive inf Imllilt'ion,businesspractices
<br />andoperatiOlls, pricing and financial infonnation, product plans and designs, and configurations
<br />and layouts is secret, proprietary, and confidential~ (ii) such infonnation shalf neither be
<br />disclosed to others nor used for any unauthorized purpose; and (iii) each panyshall use its best
<br />efforts to return sucb information to the other party upon tcnnination of this Agreement. This
<br />provision is limited to the extent that such information was in the possession of a party before
<br />discIosure, becomes a matter of public record thiough no fault of a party, oris released by or at
<br />the direction of a party.
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<br />NACR Terms and Condition!! .'\1aster Sales Agreemenl 8-3-05 Edition
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