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HomeMy WebLinkAboutNCR Corporation Universal Agreement-1987 06 11 ~[31:a NCR CORPORATION UNIVERSAL AGREEMENT F-8231 1085 CONTINUING AGREEMENT FOR EQUIPMENT AND SERVICES ~ WINTER SPRINGS, FL ~~ NCR Corporation (NCR) and Customer agree that all equipment, programs, and services hereafter obtained from NCR, either directly or indirectly through the use of a leasing company, other financing institution or purchasing agency, 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 utilized by Customer in effecting the furnishing of any equipment, programs or services and any such form, letter or order must state on the face of it: FURNISHING OF THE EQUIPMENT, PROGRAMS AND/OR SERVICES IS DONE ONLY IN ACCORDANCE WITH AND PURSUANT TO OUR AGREEMENT DATED 6-q-R7 IMPORTANT THESE PROVISIONS ARE INTENDED TO STATE ALL OF THE RIGHTS AND RESPONSIBILI- TIES 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 PROVIDED FOR OR REFERENCED HEREIN ARE EXCLUSIVE. CUSTOMER AND NCR WAIVE ALL OTHER REMEDIES INCLUDING 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 NCR. THE TERMS AND.COND;nONS.ON THE SUBSEQUENT PAGES ARE PART OF THIS . ... .. . AGREEMENT. :::::::. . . . . .. . ... . . .. ... .. ... ...... . . . . . . . .. . NCR CORPORATION 1. GENERAL - Customer may order equipment, programs and services by submitting an order setting forth 1) the description, 2) whether to be purchased, rented or licensed, 3) any cash with order amount and if purchased, whether the remainder is to be in installments 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 opin ion 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 by NCR and at such time both shall be bound and a contract shall exist in accordance with the terms of this agreement and the order. The contract, comprised of this agreement and the order shall constitute the entire agreement of the parties relating to the products or services ordered 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 incorporated 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 execution except by an instrument in writing signed by the Customer and accepted by NCR. No contract or amendment entered into after this agreement 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 address 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 days prior written notice. Termination shall not operate to terminate any contract then outstanding. If any provIsion of this agreement, or any contract, is illegal, invalid or void under any applicable state law it shall be considered severable, remaining provisions shall not be impaired and the agreement or contract shall be interpreted as far as possible so as to give effect to its stated purpose. 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. Customer agrees to pay the appropriate NCR distribution charge, and in the case of rented equipment back to the distribution 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 and de-installation charge. Title to (and possession of unless otherwise stated on the order) traded-in equipment will pass to NCR on delivery of the ordered equipment. 3. RENTAL AND LICENSE TERM AND CHARGES - Each contract for rental equipment or a licensed program shall become effective on the date of its acceptance by NCR and shall remain in force, except as otherwise provided, for the period of the term and thereafter until terminated as provided in section 18. The term of equipment rental shall begin on the first day of the month for which the full rental is paid. The rental charge shall begin immediately upon certification or delivery of the equipment by NCR or on the expiration of the previous term as the case may be. The term of a program license shall be monthly if not otherwise stated. The term shall begin on delivery, or when a test period is provided, the term shall begin on expiration of the test period or when put in productive use, whichever is earl ier. Basic monthly rent, license fees and other scheduled charges shall be billed in advance, and other charges shall be payable as accrued. Charges for a tractional part of a month shall be computed at the rate of 1/30th of the monthly charge. Rates may be changed after the expiration of the term or period for which paid on 30 days prior written notice. Rates may be increased during or before the initial term on 90 days prior written notice provided that (a) if an equipment rental increase exceeds the increase in NCR's maintenance charges or (b) if the license fee is increased, Customer may terminate the contract by notice given within 30 days after receipt of notification from NCR. Payment of the rent or license fee entitles Customer to the applicable use of the equipment or program. 4. PURCHASE TERMS - NCR shall invoice the Customer for the purchase price balance or, if applicable, the first installment of it upon certification or delivery of the equipment by NCR. The entire unpaid purchase price balance shall, at NCR's option, become due and payable upon refusal to accept del ivery when tendered, to make any payment when due or if Customer sells, conceals, removes, damages or destroys the equipment or attempts to do so prior .4>. fini;J1 pi;J"men\ of the entire price. Customer may prepay. th~ t~e ~yl1Mt balance in advance and shall in . . . ... ~ . such eV8l1t.b~ e.tl'le. tfl a credit against the finance charge . . . . determined in accordance with the rule of "78's". 5. . · . BrC~II~~.ANo. 1>>4\ ~ENT - All invoices shall be du:.and.pa~bh~ .n a.cor~~nc~ with their terms. Failure to . ....... pay <ooy ameunt when dlfe s,,"'~ entitle NCR to collect the 2 . . . . . . . . . . . . . . .. ... . . . . . . . . . . . . . . .. . . 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 if Customer is found to be in default and such is allowed under applicable state law. If customer requests a postponement in delivery, the price may be subject to any increase. 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 VIklether based on such price, charge, the equipment, part, product or service or their use or the contract. Any such taxes and interest on them (if not due to NCR's delay) required to be paid by NCR shall be added to the invoices. Customer 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. ADV ANCE PA YME NT - 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. 8. SUPPLIES - The price, monthly rental charges, the warranty, maintenance, programs or other services does not include furnish ing of suppl ies 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 so long as NCR has them available for sale. Damage to equipment or other loss sustained due to use of supplies not meeting NCR specifications shall be the sole responsibility of Customer. 9. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY - NCR will defend, at its expense, and will pay the cost and damages made in settlement or awarded as a result of any action brought again~~C;usJ:~l'nel'bllsMOn an allegation that the equipment or <01V:uO~.or:P4rt.crt' it or any program fu rnished by N CR in'5il1g~s. ~ ~51rte~ .~tates patent, copyright, or trade secret, if NCR is notified promptly by the Customer in.writing of allY s~f~ actioll or allegation of infringement, art! 0' I1CR Ch41 hIve ha~ sOle control of the defense ~, a,,~. S~CQ · ilcti~fiJ ~nd. ~II negotiations for its settlem:~t o~ comp~omis~. If a.final . . . . . . . . . . . . . . . . ... .. . . . . . . . . . . . . . . .. injunction shall be obtained against Customer's use of the equipment or any unit or part of it or program by reason of such infringement, or if in NCR's opinion the equipment or any unit or part of it or any program is likely to become the subject of a claim of such infringement, NCR will, at its option and at its expense, 1) procure for the Customer the right to continue using the equipment, unit or part, or program, 2) replace or modify the same so that it becomes noninfringi ng, or 3) if 1) and 2) are not feasible, terminate the rental or license 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 infringement or allegation thereof is based upon the use of any program or the equipment or any unit or part of it in combination with any program or equipment or any unit or parts of it not furnished by NCR or if the equipment is used in a manner for which the equipment or units or parts of it were not designed. The above states the entire liability of NCR with respect to infringement of patents, copyrights, or trade secrets by any program or by the equipment or units or parts of it, or by their operation. 10. NCR INTELLECTUAL PROPERTY- a. Definitions - "Program" shall mean instruc- tions designed to achieve a certain result, whether denominated software .or firmware, wherever resident and on whatever media and all related documentation furnished to Customer. "Programming Services" is creating a program or modifying an existing program to perform particular functions or to function in a particular manner for Customer. "NCR I ntellectual Property" shall include 1) all Programs furnished by NCR whether specifically licensed or furnished as part of equipment rented or purchased and software services for them, except Programming Services, and 2) all other material furnished by NCR and any copies of it relating to the use and service of equipment, including the information contained therein. b. This subsection applies to NCR Intellectual Property. NCR Intellectual Property shall remain confiden- tial and the proprietary property of NCR and is furnished to customer only on a license basis. Customer agrees to continue to treat it as such, except such as may be established to be in the general public domain or which Customer may be requi red to disclose pursuant to judicial or governmental action. Customer shall acquire no rights in NCR Intellectual Property except to use it solely for the purpose of use with, and only during the time Customer uses designated equipment or for any period covered by a license fee in accordance with NCR's software license policies in effect at the time of the contract. Customer shall not use or cause to be used any NCR I ntellectual Property for the benefit of any other party whether or not for a 3 consideration unless otherwise agreed. Customer shall not sublicense, sell, rent, loan, disclose or otherwise communi- cate, make available or assist any unauthorized third party to use, NCR I ntellectual Property or any part or modification thereof or make it available to any person not in the employment of Customer. Customer shall use it only in connection with the designated equipment unless on backup equipment during the time required, and shall make no copies without the prior consent of NCR. Customer shall take all reasonable precautions to maintain the oonfidentiality of NCR Intellectual Property, but not less than that employed to protect its own proprietary information unless otherwise agreed to by NCR in writing. As to copies made by Customer with the consent of NCR, Customer agrees to duplicate and include NCR's copyright notice and any NCR proprietary notice on all copies, including copies in machine readable form, and to maintain records of the location of oopies of programs. If the equipment is rented and rental is terminated (except by purchase). or if the equipment is purchased and Customer ceases to use it, Customer shall thereafter cease to use any NCR Intellectual Property or any facsimile thereof, delete it from its library, return to NCR or destroy all NCR Intellectual Property, except for a copy retained for archival purposes, and notify NCR in writing. If Customer desires to sell purchased equipment to a third party, Customer shall notify NCR in writing and may not transfer or provide NCR Intellectual Property to the purchaser from Customer without the prior agreement of NCR which shall be granted only if the purchaser shall have agreed in writing: (1) to the provisions of this section 10 and (2) 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 have and may cumulatively exercise all rights as it might have atlawor in equity for the protection of NCR Intellectual Property, including an injunction enjoining the breach or threatened breach of this section. c. This subsection applies to Programming Services furnished by NCR. Customer shall be the owner of the product of Programming Services but NCR may retain copies, disclose and further use the product of the services. Customer's programs (except those furnished by NCR). reports, printouts and other data generated by a program (except a compiler) are not products of Programming Services for purposes of this subsection. 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 reasonably necessary to protect NCR's ownership. Customer agrees to execute any dowment necessary or desirable, in NCR's opinion, to ensure its title and ownership. This agreement, any oontract, and any unit of equipment may not be assigned, sublet or transferred 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 warrants title to be clear, free and unencumbered. 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 interest shall be satisfied by payment of the purchase price balance in full. NCR may file a financing statement (NCR being constituted an agent of Customer to sign on Customer's behalf or Customer 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 a contract by NCR. Until delivery, NCR assumes all risk of loss. Upon delivery Customer assumes the risk of loss or damage for purchased equipment except such as caused willfully or negligently by NCR. NCR shall retain the risk of loss or damage for rented equipment except such as caused willfully or negligently by Customer. 12. EXCUSED PERFORMANCE - Neither party shall 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 indirectly from acts of God, civil or military authority, civil disturbance, war, strikes, fires, other catastrophies, or other cause beyond its reasonable control. 13. MAINTENANCE OF EQUIPMENT - NCR shall perform remedial maintenance during the applicable maintenance period: a. for rented equipment b. for purchased equipment (except purchase of rented equipment) ... . . . . . . (1) for a gO-day warranty period beginning on . .. edeliv~~. or certification, and .. .... . . . . . . · .(~) .qffer.tJl~ gO-day warranty period at NCR's then current rates, unless Customer notifies ~CR on. or. before the 60th day of the :W~rran~ 2Jetiod that it does not desire .~t",llJ&tl.mar~tenance coverage. The cov- ehge s"all "oontil'lue until terminated pursuant to Section 18(a). . . . . . .. . . .. ... . . . .. . 4 . . . . . . . . . . . . . . .. ... . . . . . . . . . . . . . . .. . . Remedial maintenance during other periods may be available at either a scheduled or hourly basis at NCR's then cu rrent wages. Use of equipment above designated levels may require additional charges for equipment on rent or maintenance. Customer shall prepare prior to delivery of equipment, and thereafter maintain at its expense, the site of the equipment in accordance with NCR specifications. Customer shall provide at the site adequate and suitable worki ng facilities and space for maintenance personnel. As to equipment maintained by NCR, only NCR shall perform service on it. Replaced parts shall become or remai n the property of NCR. With respect to any alteration or attachment, as defined in section 17, 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 maintenance and repair impractical. If an alteration, attachment, use of supplies not meeting NCR specifications, use of unsup- ported 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 purchased equipment on maintenance or warranty necessitated by fire originating outside of NCR furnished equipment, water, other casualty, acts of God, Customer's movement or negligence or acts of a third party is not included in the warranty or maintenance service charge and shall be provided at Customer's expense. Repair or replacement of rental equipment necessitated by Customer's movement or negl igence is not included in the rent and shall be provided at Customer's expense. NCR's liability to the Customer resulting from the performance of maintenance service shall be limited to restoring the equipment covered by this agreement to good operating condition. NCR shall have no obligation to perform any service outside the United States unless otherwise agreed. 14. OPERATlON- a. General - The equipli1ent .will a:omply with . . .. .. . applicable safety and other go~rmnellltal .reeulations in . . . . . It . effect at the time of manufacture! ~i!S.c1f ~LllP"'ll'lt sold as new may be composed in whole or in part of used components which are warranted the equivalent of new. .. . ... . . .. ... .. . .. ... .. b. Equipment F~l1ctiClI1i~gL .1 of .the~Slu+pme~t is purchased (except for purtll~se M rente~ equrpmen~:then for 90 days following certification or delivery, NCR . . . . . . . . . . . . . . . . ... .. . . . . . . . . . . . . . . .. warrants the equipment to be in good working order and will at its expense keep the equipment in good operating order and repair by performing maintenance in accordance with Section 13. If the equi pment is rented, N CR agrees to keep the equipment in good operating order and repair by performing maintenance in accordance with Section 13. THERE ARE NO WARRANTIES OF MERCHANTABIL- ITY OR FITNESS. NCR'S SOLE OBLIGATION UNDER ANY WARRANTY IS L1MITEDTOSUCH MAINTENANCE. c. Programs And Programming Services - A Warranted Program, when operating in conjunction with unaltered associated Programs and designated equipment and within required operational conditions, will comply with customer-level documentation in effect on the date the issue was furnished to Customer. Customer shall determine compliance during the applicable test period. If, during the test period, the Program is found to be not complying, i.e. a "Problem" exists, NCR shall effect a resolution (which may be a subsequent issue) or the license may be terminated. After acceptance (or delivery when the Program is not warranted), NCR will furnish, and its obligation shall be limited to furnishing, software services under its then current policies and rates. Software services for Programs may be chargeable (even as to Problems inherent in the Program when furnished, but not occurring during the test period) and for Programming Services will be chargeable. NCR may change its policies on Programm- ing Services and software services and reclassify software services on six months notice given by general publ ication. Some reclassifications may constitute a discontinuation of services. NCR assumes no responsibility for programs which have been altered or modified. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS. NCR'S SOLE OBLIGATION IS LIMITED TO FURNISH- ING SOFTWARE SERVICES UNDER ITS THEN CUR- RENT POLICIES AND CHARGES. 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 malfunction of equipment or program upon whatever cause of action any claim is based except that NCR shall be liable for only bodily injury occasioned solely by the negligence or willful acts of NCR in design, manufacture, installation or servicing of the equipment. IT IS ACKNOWLEDGED THAT THESE LIMITATIONS PERMIT NCR TO PROVIDE EQUIPMENT, PROGRAMS AND SERVICES AT LOWER RATES THAN IT OTHERWISE COULD AND SUCH LIMITATIONS ON LIABILITY ARE REASONABLE. 5 e. Equipment Rental Credit - If the equipment is rented and if a component of the equipment being maintained becomes inoperative and remains inoperative for a period of twenty-four (24) scheduled 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 at the rate of 11720th of the basic monthly rental charge for such component. A I ike credit shall be granted for each interconnected NCR component being maintained which is not usable as a result of the breakdown. Customer shall not be entitled to the credit if the cause of inoperation is due to the fault or negligence of Customer, fire originating outside of NCR furnished equipment, water, and other acts of God, civil or military authority or the act of any third party. 15. SYSTEM IMPLEMENTATION - "System" shall mean an integrated group of equipment supplied or specified by NCR and the NCR furnished programs utilized with it. "Installation Service" is installation and operational training and assistance. NCWs liability resulting from performance of Installation Service shall be limited to re-performing any such services. Customer has the responsibility for implementing and operating the System. Installation Services furnished to Customer are to facilitate implementation of the System by Customer and are not to be construed as evidencing any obligation of NCR for implementing or operating the System. 16. SYSTEM CAPABI L1TY - Any proposal or recommendation by NCR for the equipment or programs ordered respecting the capability of the System to perform applications of, or produce certain results for, Customer is based on NCR's best efforts 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 specifically incorporated by reference AN D b) Customer cannot itself verify system capability in advance of equipment delivery. CUSTOMER ACKNOWLEDGES ITS OBLIGATION TO NCR TO VERIFY SYSTEM CAPABILITY IN ADVANCE OF DELIVERY WHENEVER REASONABLY POSSIBLE. When programming is to be performed by Customer prior to delivery of the equipment, Customer agrees that it has, as of the date of the order or will have prior to delivery, a sufficent number of competent and adequately trained personnel to accomplish evaluation and implementation and thereafter to operate the system efficiently. Because of this capability and because it has the better knowledge of its operations, methods and volumes, Customer has, or will have prior to delivery of the equipment, the better expertise to itself evaluate system capability. If Customer can verify system capabil ity in advance of delivery, failure to inform NCR in writing prior to delivery that the system will not perform as specified will be conclusively deemed to be an agreement by the Customer that it 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 in accordance with specifications previously furnished to Customer or substantially as represented, Customer may at its option accept revised performance criteria or terminate the oontract without liability of either party except for return of any advance payment when equitable. In the event that compliance with specifications cannot be verified by Customer in advance of delivery, and on delivery it appears that the system cannot perform as specified, then the contract 1) may be terminated by either party without liability except any payments previously made to NCR shall be refunded, less the reasonable value of services received from the system or 2) may be amended to provide equipment and/or programs necessary to perform as represented. 6 17. OTHER EQUIPMENT AND PROGRAMS - Customer may not make any alteration .(any change made to the physical, mechanical or electrical arrangements of the equipment whether or not additional devices or parts are required) or attachment (the mechanical, electrical or electronic interconnection of non-NCR equipment mar- keted by others) to rented equipment unless specifically authorized in writing by NCR. In the event of any attachment or alteration to NCR equipment or in the event that a program not serviced by NCR is used or any modification is made to any NCR serviced program, 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 system or of any unit of equipment except for maintenance service under Section 13 or b) the capability 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 attachtlllElf1t Of" al1!efatiolt. . .. ... . .. .... . . . . . . . 18. · . 1"Ef\MIN~"H'1'I" A contract for specific equipment, programs or services resulting from an accepted order may be terminated under the following conditions: . .... .. .. ... ... .. ... ... :. 3. 1=tthe, f>~r~ rpll" ter"t'ginate a program I icense at the e~~iratior'l of t1le term~ or.t?1flreafter, on 30 days prior written notice. Either party may terminate a rental contract by wl'it~n..,~i~ giveno30~ays before the expiration of the .. .. .. .. ... .. .. .. .. .. .. .. .. . . initial term or any yearly extension; otherwise the term shall be extended yearly. Software service and equipment maintenance shall be continued on the expiration of the period set forth on the invoice for yearly periods unless (i) either party gives written notice to the other 30 days prior to the anniversary date of its intention to terminate service, (ii) as to equipment maintenance, the equipment is not in good condition on the effective date of any renewal period. Any equipment maintenance contract may be terminated I:1y' either party on 30 days notice. Until terminated, Customer agrees to pay the applicable rent, license fee, equipment maintenance, software service fee or other charges. No program license shall be considered terminated until customer either returns or certifies destruction of the program. 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 applied for by the other. c. NCR may, at its election, and without prejudice to any other right or remedy available by law or under this Agreement 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 . .. . ... . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . ... . . . .. . . . . . . . . . . . . . . . . ... .. . . . . . . 7 . . . . . . . . .. to delivery, refuses delivery, fails to pay after 10 days prior written notice any payment due, or willfully violates the confidentiality provisions of Section lOb. In such event, NCR may without further notice enter Customer's premises without liability for trespass or damage and reclaim and/or repossess the equipment and any NCR furnished program and the media they are on. I n the case of a rental contract, program license or software services contract, 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. I n accordance with Section 16. 19. DISPUTES - Any controversy or claim, including any claim of misrepresentation, arising out of or related to this Agreement and/or any contract hereafter entered into between NCR and Customer, or the breach thereof, or the furnishing of any equipment or service by NCR to Customer, shall be settled by arbitration. The arbitration shall be conducted by a single arbitrator under the then current rules of the American Arbitration Association. The arbitrator shall be chosen from a panel of persons knowledgeable in business information and data processing systems. The decision 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 arbitration shall be held and the award shall be deemed to be made in the city where the NCR district office procuring the order is located. ~[31a ... . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . .. . . . ... . . . . . . . . . . . . . . .. ... . . . . . . . . . . . . . . .. . .