<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1996
REGISTRATION NO. 333-04077
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 3
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
PAR TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 16-1434688
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
PAR TECHNOLOGY PARK
8383 SENECA TURNPIKE
NEW HARTFORD, NEW YORK 13413-4991
(315) 738-0600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
JOHN W. SAMMON, JR.
CHAIRMAN OF THE BOARD AND PRESIDENT
PAR TECHNOLOGY CORPORATION
PAR TECHNOLOGY PARK
NEW HARTFORD, NEW YORK 13413-4991
(315) 738-0600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
TIMOTHY C. MAGUIRE, ESQ. STEVEN R. FINLEY, ESQ.
TESTA, HURWITZ & THIBEAULT, LLP GIBSON, DUNN & CRUTCHER LLP
HIGH STREET TOWER 200 PARK AVENUE
125 HIGH STREET NEW YORK, NY 10166
BOSTON, MASSACHUSETTS 02110 (212) 351-3920
(617) 248-7000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
---------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box: [_]
If the registrant elects to deliver its latest annual report to security-
holders, or a complete and legible facsimile thereof, pursuant to Item
11(a)(1) of this Form, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation, as amended.
3.2 Form of Certificate of Amendment to the Certificate of Incorporation.
3.3* By-laws, as amended.
4* Specimen Certificate representing the Common Stock.
5* Opinion of Testa, Hurwitz & Thibeault, LLP.
10.1+ Agreement between Taco Bell Corp. and PAR Microsystems
Corporation, dated
December 18, 1995.
10.2+ Service Integration Agreement between Taco Bell Corp. and PAR
Microsystems Corporation, dated September 12, 1995.
11* Statement re: Computation of Earnings per Share.
23.1* Consent of Price Waterhouse LLP.
23.2* Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5).
24* Power of Attorney (see page II-3).
</TABLE>
- --------
* Previously filed.
+ Confidential treatment requested as to certain portions.
ITEM 17. UNDERTAKINGS.
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where appropriate, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement or amendment thereto to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
Hartford, New York on June 12, 1996.
PAR TECHNOLOGY CORPORATION:
/s/ Gregory T. Cortese
By:__________________________________
GREGORY T. CORTESE
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
POWER OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE(S) DATE
/s/ John W. Sammon* Chairman of the
- ------------------------------------- Board of Directors June 12, 1996
DR. JOHN W. SAMMON, JR. and President
/s/ Charles A. Constantino* Executive Vice
- ------------------------------------- President and June 12, 1996
CHARLES A. CONSTANTINO Director
/s/ J. Whitney Haney* President, PAR
- ------------------------------------- Microsystems and June 12, 1996
J. WHITNEY HANEY Director
/s/ Sangwoo Ahn* Director
- ------------------------------------- June 12, 1996
SANGWOO AHN
/s/ James C. Castle* Director
- ------------------------------------- June 12, 1996
DR. JAMES C. CASTLE
/s/ Gregory T. Cortese
*By: ________________________________
GREGORY T. CORTESE
ATTORNEY-IN-FACT
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS PAGE
-------- ----
<C> <S> <C>
1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation, as amended.
3.2* Form of Certificate of Amendment to the Certificate of
Incorporation.
3.3* By-laws, as amended.
4* Specimen Certificate representing the Common Stock.
5* Opinion of Testa, Hurwitz and Thibeault, LLP.
10.1+ Agreement between Taco Bell Corp. and PAR Microsystems
Corporation, dated December 18, 1995.
10.2+ Service Integration Agreement between Taco Bell Corp. and PAR
Microsystems Corporation, dated September 12, 1995.
11* Statement re: Computation of Earnings per Share.
23.1* Consent of Price Waterhouse LLP.
23.2* Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5).
24* Power of Attorney (See page II-3).
</TABLE>
- --------
* Previously filed.
+ Confidential treatment requested as to certain parties.
<PAGE>
EXHIBIT 10.1
[CONFIDENTIAL TREATMENT REQUESTED]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE
406.
AGREEMENT
BETWEEN
TACO BELL CORPORATION
&
PAR MICROSYSTEMS CORPORATION
DECEMBER 18, 1995
-----------------
<PAGE>
AGREEMENT
THIS AGREEMENT is made as of 18th day of December 1995 by and between
--
Taco Bell Corp., a California corporation, having a principal place of business
at 17901 Von Karman, Irvine, CA (hereinafter referred to as "Buyer") and PAR
Microsystems Corporation, having a principal place of business at PAR Technology
Park, 8383 Seneca Turnpike, New Hartford, New York 13413-1191 (hereinafter
referred to as "Vendor").
WITNESSETH:
WHEREAS, Vendor designs, develops and manufactures microprocessor
based computer restaurant point of sale ("POS") equipment,
WHEREAS, Buyer wishes to purchase certain Vendor POS equipment for use
in Buyer's Taco Bell and Hot'n Now restaurants and in any other restaurants,
where Vendor has designed the equipment to be used, which may be subsequently
purchased by Buyer (collectively hereinafter referred to as "Buyer's
restaurants"),
WHEREAS, Vendor desires to sell such POS equipment to Buyer for use in
Buyer's restaurants, and
WHEREAS, the Parties now wish to enter into an agreement for the
purchase of such POS equipment.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND OF THE MUTUAL
PROMISES HEREIN CONTAINED AND INTENDING TO BE LEGALLY BOUND HEREBY THE PARTIES
DO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
-----------
For purposes of this Agreement including all Exhibits attached
hereto, the following words shall have the following definitions:
A. Components - Means those individual units of POS
----------
equipment/hardware or accessories as set forth in Exhibit A including, but not
limited to, Counter and/or Drive-Thru POS Terminals, CRT Videos, Printers and
other POS peripherals as may be sold or purchased under this Agreement.
B. Programs - Means all computer programs and integrated groups
--------
of programs and microcode (including but not limited to those relating to
communications and operating systems) which Vendor integrates with its hardware
components to form Vendor's computerized POS III system. "Programs" shall not
include source code.
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<PAGE>
C. Documentation - Means all listings, descriptions, manuals,
-------------
specifications, coding (including object code in machine readable format),
layouts, instructions, and like materials. "Documentation" shall not include
source code.
D. System(s) - Means all Components including those set forth in
---------
Exhibit A hereto, along with related Programs making up Vendor's keyboard or
touch LCD POS III System product. The parties understand that a System may be
comprised of a varying mix of different configurations of Components depending
upon the sales volume, sales mix and physical layout of each Taco Bell or Hot'n
Now Restaurant.
E. Days - Means calendar days unless otherwise noted.
----
F. Escrowed Material - means all necessary information, including but
-----------------
not limited to (i) the Programs and associated Documentation, (ii) the source
code, (iii) the Component parts list and supplier list, and (iv) any and all
other System/Component specifications which Vendor uses to maintain and support
the Systems/Components and/or Programs.
G. Delivery or Deliver - Means shipment by Vendor to either a
-------------------
segregated area within Vendor's facility or to another facility of Vendor's
choice (hereinafter collectively referred to as a "Vendor facility") or to a
location designated by Buyer, F.O.B. Vendor's facility, New Hartford, New York.
2. TERM OF AGREEMENT:
-----------------
This Agreement shall become effective as of the date first set forth
above and shall terminate March 31, 1997 (hereinafter referred to as the
"Term").
3. TERRITORY:
---------
During the Term and subject to Vendor's good faith determination that
it has the capability and that it is commercially practical, in any particular
country outside the United States, to obtain the necessary
approvals/certifications to deliver the Components/Systems, Programs and
associated Documentation into such country and to meet the governmental laws and
regulations of such country, Vendor agrees to provide Components/Systems and
license Programs and Documentation to Buyer worldwide (hereinafter the
"Territory"), which in any event shall include the United States, Canada and the
islands of the Caribbean.
4. AGREEMENT TO PURCHASE:
---------------------
A. (1) Subject to and in accordance with the terms and conditions
set forth in this Agreement, Buyer, through its designee or its purchasing agent
PFS, agrees to purchase and take Delivery from Vendor of a minimum of
[CONFIDENTIAL TREATMENT REQUESTED] for the restaurants in which the Systems are
to
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
2 of 19
<PAGE>
be installed (hereinafter collectively the "Minimum Purchase Commitment"). In
satisfying the Minimum Purchase Commitment obligation, Buyer, through its
designee or its purchasing agent PFS, agrees to purchase and take Delivery from
Vendor of a minimum of [CONFIDENTIAL TREATMENT REQUESTED].
(2) Taco Bell can, in satisfying its Minimum Purchase Commitment,
purchase such Systems through a purchasing agent other than PFS (i.e. a third
party leasing company) provided:
(i) such third party understands and agrees that it is
purchasing such Systems as an agent for Taco Bell, that such third party agrees
to be bound by all the terms and conditions of the Agreement, and that all sales
will be made in accordance with the specific terms and conditions set forth in
this Agreement, and
(ii) Taco Bell understands and agrees that it will not be
relieved of its obligations under this Agreement and will comply with all terms
and conditions of such.
B. Vendor's Programs and associated Documentation may, at Buyer's
discretion, be licensed by Buyer to be used in accordance with the license
provisions of this Agreement. There is no required minimum quantity of copies
of the Programs and associated Documentation which must be licensed by Buyer.
C. All Systems, Components, and/or Programs purchased/licensed by
Buyer under this Agreement shall be purchased or licensed for use only in
Buyer's or Buyer's franchisees' restaurants.
5. ORDERS, DELIVERY, AND INSTALLATION:
----------------------------------
A. (1.) Using its best efforts to issue such not later than
Sixty (60) Days prior to a requested installation date, Buyer shall issue
separate order releases (hereinafter "Order(s)") or "Release(s)") against this
Agreement, specifying to Vendor the Systems/Components it wishes to order and
the date and place each such item is requested to be installed.
(2.) If Buyer issues its Release for an order at least sixty
(60) Days prior to Buyer's requested installation date then such requested date
shall become the scheduled installation date. If Buyer fails to issue its
Release for an particular order at least sixty (60) Days prior to the requested
installation date for such order then Vendor shall promptly notify Buyer of the
date it has scheduled for installation. If the date differs from that requested
by Buyer in its Release and if Buyer objects to the date Vendor has scheduled
for installation the parties shall mutually agree upon a scheduled installation
date.
B. (1) At the time of signing this Agreement and again on the
same date of each month thereafter during the Term, Buyer should look forward a
minimum
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
3 of 19
<PAGE>
of six (6) months and provide Vendor with a schedule which reflects the total
number of Systems/Components which are projected by Buyer to be required for
installation in Buyer's or Buyer's franchisee's restaurants over such next six
months (hereinafter the "Total System Projection"). The parties agree that the
first three (3) months of each monthly Total System Projection shall be fixed
and once provided, absent Vendor's consent, shall not be subsequently modified
by Buyer.
(2) Parties agree that at any time during the Term, Vendor may rely
upon such total number of Systems/Components which are projected to be required
for installation in Buyer's or Buyer's franchisee's restaurants over the then
next three (3) months (hereinafter "Next 3 Month's Systems/Components") and
elect, in its good faith discretion, to the extent the Next 3 Month's
Systems/Components projections exceeds the quantity of Buyer's
Systems/Components which have been Delivered and are then stored in Vendor's
facility, to
(a.) batch produce the remainder of such Next 3 Month's
Systems/Components,
(b.) ship such Systems/Components to either the location designated
by Buyer on any outstanding Releases, or if no location is designated by Buyer
prior to the date Vendor is ready to ship such Systems/Components to a Vendor
facility, and
(c.) invoice Buyer for such shipped Systems/Components under payment
terms, net thirty (30) Days from Buyer's receipt of invoice and Buyer shall be
deemed to have taken Delivery of such Systems/Components with legal and
equitable title passing to Buyer upon such shipment;
provided however, the Next 3 Month's Systems/Components projection shall in no
event entitle Vendor to produce or Deliver any Systems in excess of the Minimum
Purchase Commitment, unless Buyer expressly orders additional
Systems/Components.
C. For all Systems/Components Delivered pursuant to this Agreement to
a Vendor facility then, notwithstanding the fact that legal and equitable title
to such Systems/Components shall have passed to Buyer upon Vendor's shipment to
such locations, Vendor, as bailee, will bear the cost of shipment to such
facility, cost of storage and risk of loss for those Systems/Components shipped
to such locations and shall provide appropriate proof of adequate insurance
(with an aggregate deductible no greater than $5,000) to Buyer's benefit until
such Systems are actually shipped to a location designated by Buyer. Vendor
shall use all of Buyer's stored Systems/Components to fulfill shipments to
locations designated Buyer in its Releases prior to using any Systems/Components
subsequently produced. Buyer shall incur a reasonable storage charge payable
monthly for all Systems/Components which continue to be stored at a Vendor
facility, due to causes outside Vendor's reasonable control, [CONFIDENTIAL
TREATMENT REQUESTED].
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
D. Within seven (7) working Days after the end of each calendar month
during the Term hereof, Vendor shall send to Buyer a Shipment Report in the form
attached hereto as Exhibit C and incorporated herein by reference with respect
to shipments of Systems/Components and/or Programs made during such calendar
month. Such Shipment Report shall be sent via fax as follows:
Taco Bell Purchasing Department
Attn: Director of Equipment Purchasing
(714) 863-2274
E. (1) Throughout the United States, Canada, islands of the
Caribbean and all portions of the Territory where Vendor has determined pursuant
to Paragraph 3 of this Agreement to sell and install Systems/Components, Vendor,
or a third party contracted by Vendor, shall install all Systems/Components
hereunder in accordance with Exhibit D (hereinafter "Basic Installation"). At
the request of Buyer, Vendor shall also provide, at the time of installation,
basic training and monitoring as set forth in Exhibit D. In addition to the
Basic Installation, Vendor shall, at the request of Buyer and pursuant to terms
and conditions to be negotiated by the parties, offer non-basic/customized
installation, training and/or monitoring services (i.e. rollouts, deinstallation
of existing POS systems, etc.) in such portions of the Territory.
(2) Buyer shall designate on the applicable Release whether or
not it wants Vendor to perform training and/or monitoring at the time the
Systems/Components are installed in Buyer's restaurants.
(3) If Vendor plans to contract with a third party to perform the
installation, training and/or monitoring on Vendor's behalf, Vendor shall notify
Buyer of the name of the third party it intends to contract with.
F. Buyer shall be responsible for assuring that each restaurant has
completed all of the requirements set out in the Vendor "Pre-Installation
Guide/Instructions" as set out in Exhibit E to this Agreement. For those
situations where the Pre-Installation Guide/Instructions does not accurately
reflect all of the requirements (i.e. Hot'n Now) the parties will cooperate to
modify the Guide's requirements to accommodate such situations. Any reasonable,
additional costs incurred by Vendor as a result of Buyer's failure to complete
all of the requirements of this Pre-Installation Guide shall be borne by Buyer
if such cost would have been avoided by reasonable compliance with the
instructions set froth in the Pre-Installation Guide.
G. (1.) For Basic Installations as defined in Exhibit D attached
hereto, performed directly by Vendor or its designated agent, should Vendor or
its designated agent fail to complete an installation, due to causes within its
reasonable control, within five (5) Days of the date the parties mutually agreed
the installation was to be completed and such delay either causes a delay in the
planned opening of a restaurant or has a significant economic detrimental effect
on the operation of a restaurant, then Vendor will reduce the applicable Basic
Installation price for such late installation [CONFIDENTIAL TREATMENT
REQUESTED],
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
5 of 19
<PAGE>
and if the installation is not completed within ten (10) Days of the date the
parties mutually agreed the installation was to be completed, then Buyer may
either (i) revoke its acceptance of the Systems/Components and receive a full
refund of the monies paid for such Systems/Components and then go into the
marketplace and purchase substantially similar Systems/Components from a third
party with the difference between what Buyer actually pays and the applicable
purchase price stated in this Agreement, to the extent such difference does not
exceed [CONFIDENTIAL TREATMENT REQUESTED], to be paid by Vendor to Buyer; or
(ii) may obtain the services of a third party to install the Systems/Components
and Vendor will reimburse Buyer for the reasonable cost of such installation.
Even if Buyer chooses to revoke and purchase a third party's system/components
for such location the Systems/Components revoked shall count towards the
satisfaction of Buyer's applicable purchase commitment so as not to reduce the
discount to which Buyer would otherwise be entitled to.
(2.) Failure by Vendor or Vendor's designated agent on [CONFIDENTIAL
TREATMENT REQUESTED] of the date the parties mutually agreed the installation
was to be completed shall constitute a material breach of this Agreement.
H. (1.) If due to causes within Buyer's reasonable control, Buyer
causes a delay which results in the inability to complete an installation on the
date the parties mutually agreed the installation was to be completed or Buyer
shall reschedule an installation within two weeks of a Scheduled Installation
Date, then Vendor shall invoice Buyer for all reasonable additional travel,
lodging, meals and other related expenses incurred by Vendor as a result of such
delay.
(2.) Also, if on the date the installation was to be performed, Buyer
causes a delay which results in the inability of the installation personnel to
commence the installation within [CONFIDENTIAL TREATMENT REQUESTED] of the time
they arrive at the site, then in addition to any additional travel, lodging,
meals and other related expenses incurred by Vendor as a result of such delay,
[CONFIDENTIAL TREATMENT REQUESTED].
I. Unless shipping instructions are specifically set forth by Buyer on
its Release or communicated in writing to Vendor prior to Vendor making actual
shipment commitments, Vendor shall have the responsibility of selecting the
particular route and carrier for the shipment of the equipment to Buyer. Except
as otherwise provided herein, risk of loss shall pass to buyer upon shipment.
J. In the event Buyer intends to install Systems/Components in a country
other than the United States, Canada or the Islands of the Caribbean, Buyer will
provide Vendor within [CONFIDENTIAL TREATMENT REQUESTED] of the anticipated
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
6 of 19
<PAGE>
installation date written notice of such intention. Upon receipt of such
notice, Vendor will within sixty (60) Days notify Buyer of whether or not in
Vendor's opinion i is possible and practical for vendor to perform such
installation.
K. Legal and equitable title to the Systems/Components free and clear of
all liens, security interests, or encumbrances shall automatically pass from
Vendor to Buyer upon Delivery. Parties agree that Vendor will receive a purchase
money security interest in the Components upon shipment which shall be
extinguished promptly upon payment by Buyer.
L. Vendor shall assist Buyer with the shipping of the purchases, filing
freight claims, finding and locating lost shipments, and in other actions with
respect to shipping customs work which are necessary and reasonable at the
request of Buyer. Vendor will utilize adequate shipping containers and
packaging.
6. PRICES:
------
A. Subject to Subparagraph 6B. below, the net purchase price to be
invoiced by Vendor and to be paid by Buyer for
(1.) the Minimum Purchase Commitment (excluding the Programs and
Documentation) shall be the price determined by [CONFIDENTIAL TREATMENT
REQUESTED] the List Prices set forth in Exhibit B hereto, and
(2.) the Programs and Documentation licenses purchased by Buyer shall
be the price determined by [CONFIDENTIAL TREATMENT REQUESTED] the List Prices
set forth in exhibit B hereto.
B. All prices stated hereunder are FOB New Hartford, New York and are
stated in United States dollars. Unless otherwise agreed to in writing by the
parties, Buyer is responsible for all applicable shipping charges and insurance
associated with shipment of the Systems/Components to the location designated by
Buyer, sales, use, or any similar tax or any import or export duties, tariffs or
other costs incurred to obtain the necessary approvals/certifications to deliver
the Systems/Components into a country outside the United States and to meet the
governmental laws and regulations of such country. Thus, in addition, to the
prices so specified in this Agreement, the amounts of any such present or future
taxes or other charges or fees applicable to the purchase, export and/or import
of the Systems/Components, Programs or services, to be provided under this
Agreement shall be paid by Buyer.
C. Subject to Subparagraph 6B. of this Agreement above, the
Systems/Components, basic Installation, training and monitoring prices set forth
in Exhibit B attached hereto shall be fixed for the Term of this Agreement.
[CONFIDENTIAL TREATMENT REQUESTED].
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
7 of 19
<PAGE>
7. PAYMENT:
-------
A. Payment in full for the Minimum Purchase Commitment for all applicable
Program and Documentation licenses, and for all freight insurance, import and/or
export duties and any other applicable fees, taxes and/or charges directly
incurred therewith, is due and payable thirty (30) Days from the date of Buyer's
receipt of invoice.
B. Payment for, installation, monitoring, and training and any other
applicable fees and/or charges shall be invoiced by Vendor upon completion of
installation and shall be due and payable thirty (30) Days from the date of
Buyer's receipt of invoice.
C. Interest on overdue amounts shall be payable at the rate of twelve
percent (12%) per annum commencing thirty (30) Days after its due date. All
payments shall be made in United States dollars.
D. Vendor will invoice Buyer upon Delivery.
8. SOFTWARE DEVELOPMENT:
--------------------
A. From time to time during the Term of this Agreement, modifications
and/or enhancements to the Programs and Documentation may be requested by Buyer.
Buyer's requests shall define the exact functions, features, and/or requirements
of such modifications or enhancements. Vendor shall review such requests and if
not unreasonable shall submit a proposal to Buyer within thirty (30) Days of
receipt of the request setting forth the development time frames and pricing.
Upon mutual agreement to applicable terms and conditions for such software
development Vendor will use its best efforts to develop and provide such
modifications and/or enhancements to Buyer.
B. Subject to Subparagraph 8A. above, Vendor agrees to develop any
modifications and/or enhancements to the Programs and Documentation which may be
necessary in order to comply with local government financial, revenue and/or tax
reporting requirements of any country outside the United States where Vendor
determines that it has the capability and it is commercially practical to
deliver, install and service the Components/Systems within such country.
8 of 19
<PAGE>
9. SYSTEM IMPROVEMENTS:
-------------------
Vendor agrees to make available and sell or license to Buyer such
improvements, releases, enhancements, extensions, options, upgrades and other
changes (collectively referred to as "improvements") to the Components and/or
Programs as they are made available for distribution to any other customers of
Vendor, except those improvements which are proprietary to such customers at a
price which shall be no greater than that given, in the normal course of
business to other customers of Vendor purchasing a like system in the same
volume and under substantially the same terms and conditions as Buyer has
hereunder. In addition, except as may be required by Subparagraph 15A.(2)d
below, Vendor agrees that it will provide Buyer with six (6) months prior
written notice of any plan to modify the Systems/Components and/or Programs
which will be sold to Buyer under this Agreement if such intended modification
will significantly affect either (i) the Buyer's operation of the Component
and/or Program, (ii) the operation of the restaurant or (iii) the functionality
of the Systems provided, however, this shall not impair Buyer's right to
purchase from Vendor during the Term and under the provisions of this
Agreement, the specific Systems/Components and/or Programs Buyer has contracted
for to the extent of Buyer's Minimum Purchase Commitment or any Optional
Purchase Commitment.
10. LICENSE OF PROGRAMS:
-------------------
A. Notwithstanding any provision herein to the contrary, title to any
Programs and Program Documentation (including any copies thereof) shall remain
vested in Vendor. Subject to the terms and conditions of this Agreement, Vendor
hereby grants to Buyer, its successors in interest and the franchisees and
licensees of its restaurant or food service formats, a nontransferable,
nonexclusive, royalty free limited License to use the Programs, in machine
readable form and associated Program Documentation in conjunction with the
Systems purchased from Vendor under the terms of this Agreement solely for the
processing of Buyer's internal business data in the operation of its restaurant
business and shall not be transferred to or in any manner or form used on any
other point of sale hardware equipment other than hardware equipment purchased
directly from Vendor. A separate copy of the Programs and Documentation must be
licensed/purchased from Vendor for each Vendor System which Buyer intends to use
the Programs on. This license and the rights granted hereunder shall terminate
with respect to each copy of the Programs which is licensed by Buyer for use
with a System/Component on the date Buyer permanently removes such
System/Component from installation in one of Buyer's or Buyer's franchisee's
restaurants.
B. Except for any portions of the Programs which are unique to
Buyer's restaurant operational procedures and which were integrated into the
Programs by Vendor in response to Buyer's written specification (e.g. certain
screen layouts and specific menu item key identification, etc.). Buyer
recognizes that the Programs and associated Program Documentation supplied to
Buyer are proprietary to Vendor and are a valuable asset of Vendor and that
their use and disclosure must
9 of 19
<PAGE>
be carefully and continuously controlled. The Programs and associated Program
Documentation supplied to Buyer under this Agreement or any authorized copies
made thereof shall be held in confidence and shall not be disclosed in any
manner or made available in any form to any persons or entities without the
express written consent of Vendor, provided however that Buyer shall be
permitted to disclose relevant aspects of the Programs and associated Program
Documentation to its employees to the extent such disclosure is reasonably
necessary to Buyer's use of the Programs and associated Program Documentation,
and provided that Buyer advises its employees of their confidential nature and
takes all reasonable steps to ensure that the Programs and/or associated Program
Documentation is not used, disclosed, and/or duplicated in contravention of the
provisions of this Subparagraph 10B.
C. Buyer agrees that it will not, except as is expressly authorized
in this Agreement (a) copy or duplicate, or permit anyone else to copy or
duplicate in whole or in part any physical or magnetic version of the Programs
or associated Program Documentation furnished by Vendor under this agreement, or
(b) create or attempt to create, or permit others to create or attempt to
create, by reverse engineering, assembly or otherwise, the source programs or
any part thereof from the object program or from other information made
available under this Agreement or otherwise (whether oral, written, tangible or
intangible) provided, however that Buyer shall be permitted to make one (1) copy
of the Programs for backup purposes for each System purchased.
D. If Buyer attempts to use, copy, license, disclose or convey the
Programs and/or associated Program Documentation supplied by Vendor hereunder,
in a manner contrary to the terms of this Agreement or in derogation of Vendor's
proprietary rights, whether those rights are explicitly stated herein,
determined by law or otherwise, Vendor shall have, in addition to any other
remedies available to it, the right to injunctive relief enjoining such wrongful
actions, Buyer hereby acknowledging that other remedies are inadequate.
11. CONFIDENTIAL INFORMATION:
------------------------
A. Buyer and Vendor agree that all confidential and proprietary
information concerning the parties and their respective operations and
procedures shall be maintained on a confidential basis for each other's benefit.
Buyer and Vendor shall not disclose to others any of the respective technical
data or proprietary information acquired from each other without the other
party's prior written consent. Buyer and Vendor agree further to execute and
abide by the Confidentiality Agreements which are attached hereto and
incorporated herein by reference as Exhibit F1 and F2. This section and Exhibits
F1 and F2 shall survive the termination of this Agreement.
B. Notwithstanding any provisions to the contrary in this
agreement or the Confidentiality Agreements, the obligations or confidentiality
of the parties hereto shall not apply with respect to any information which (i)
is known by the party receiving such information hereunder at the time of
disclosure (whether or not such
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<PAGE>
disclosure was made prior to or after the date hereof), or (ii) is or becomes
known to the public generally through no fault or other action of the party
receiving such information hereunder, or (iii) is obtained lawfully from a third
party who is not believed or suspected by the party receiving such information
hereunder to have obtained such information under an obligation to hold such
information confidential, or (iv) is developed by the party receiving such
information, employees, agents or representatives as a result of their own
efforts and not as a direct or indirect result of the disclosure of the same
information by the party disclosing such information.
12. WARRANTIES & REPRESENTATIONS:
----------------------------
A. Vendor warrants to Buyer that:
(1.) each System/Component purchased by Buyer under this Agreement
(excluding the associated Programs and Documentation) hereinafter "Hardware"
shall be free from defects in material and workmanship under normal use and
service for a period commencing upon Delivery of the System/Components to Buyer
(i.e. the earlier of, the date the Systems/Components are shipped by Vendor to a
Vendor facility or to a location designated by Buyer) and terminating
[CONFIDENTIAL TREATMENT REQUESTED] from the date of completion of installation;
(2.) to the best of Vendor's knowledge, Vendor is the author of, and
has full and exclusive right, title and interest in and to the Programs and/or
has the right to grant to Buyer the licenses and other rights granted hereunder.
(3.) the Systems/Components and Programs do not infringe any United
States patent issued and existing as of the date of this Agreement is executed
by Vendor, or any United States copyright or trademark;
(4.) except as may be otherwise agreed to by the parties, the
Programs and Documentation to be licensed and provided to Buyer after the
effective date of this Agreement shall be substantially the same Programs and
Documentation as that which was licensed and provided by Vendor in association
with the last System Delivered to Buyer prior to the effective date of this
Agreement.
These Vendor warranties are in addition to and do not supersede Buyer's rights
under any on-site service agreement which may be in effect between the parties.
With the except of any implied warranty or merchantability the foregoing Vendor
warranties are in lieu of all other warranties, expressed or implied, including
but not limited to the implied warranty of fitness for a particular purpose.
B. Vendor and Buyer repent and warrant to each other that:
(1.) Each has full right and authority to enter into this Agreement
on the terms specified herein.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
(2.) The execution, delivery, and performance of this Agreement is
not prohibited by and will not be in violation of any Agreement to which it is a
party, and will not be in violation of its certificate of incorporation or by-
laws.
(3.) There is no material litigation, proceeding or investigation
filed or pending or threatened in any Court or before any regulatory commission,
board or other administrative or governmental agency against it which may in any
way affect its full and complete performance under this Agreement.
C. Except as provided in Subparagraph 12A.(2.) and (3.) above, the
Programs are provided "as is" without warranty of any kind, either express or
implied, as to any matter whatsoever, including but not limited to, the implied
warranties of merchantability and fitness for a particular purpose.
13. LIMITATION OF LIABILITY:
-----------------------
Except as otherwise expressly provided elsewhere in this Agreement and
except due to the extent of fraud by a party, in no event shall either party be
-----------
liable to the other party for any damages arising from the interruption or loss
of: use, service, data, incorrect data, revenues or profits (except Vendor's
profits in the event Buyer breaches its purchase commitment obligations), or for
any indirect, special, consequential or incidental damages arising out of a
breach of any provision of this Agreement, or in any way related to the
performance or non-performance by the other party under said Agreement
regardless of the form in which any legal or equitable action may be brought
(i.e. breach of warranty, contract, strict liability or otherwise). The
foregoing shall apply without regard to whether the party sought to be held
accountable had knowledge of the possibility of such damages.
14. FORCE MAJEURE:
-------------
Neither party will be liable to the other for any delay or for failure to
perform its obligations hereunder resulting from any cause beyond that party's
reasonable control, including, but not limited to: fires; explosions; floods;
strikes; work stoppages or slowdowns; or other industrial disputes; accidents;
riots; or civil disturbances; acts of civil or military authorities; export or
import authorization; inability, for those portions of the Territory outside the
United States, to obtain any license or consent necessary; and any abnormal
delays or shortages by critical material suppliers. Provided that if Vendor
cannot perform under this Agreement due to such Force Majeure for more than
ninety (90) Days, Buyer shall have the option to terminate its obligation under
this Agreement.
15. BREACH & REMEDIES:
-----------------
A. Buyer's Remedies:
(1.) For breach of the express warranty set forth in Subparagraph
------------------------------------------------------------
12A.(1.) and for breach of any implied warranty of merchantability:
- -------------------------------------------------------------------
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<PAGE>
a. Subject to Subparagraph 5.G. of this Agreement, Vendor's
sole liability and Buyer's exclusive remedy shall be limited to Vendor, at
Vendor's sole option, promptly either (a) supplying at its expense a
replacement, or (b) repairing such defective hardware at its facility and at its
expense. Vendor shall not be responsible for malfunction, defects or damage to
the Hardware cause by negligence of Buyer's or Buyer's franchisee's
employees/agents; vandalism; adjustments, maintenance or repairs made by persons
other than Vendor's personnel or persons, firms or corporations authorized by
Vendor; operation and use not within specifications or in an unacceptable
environment; or other cause not arising out of defects in material or
workmanship. The notice of breach shall be by telephone with confirmation in
writing posted or faxed within five (5) Days and shall specify the facts
constituting the alleged breach of warranty. If the breach is not discovered
within the warranty period or if Vendor has not received written notification of
a breach within five (5) Days after termination of this warranty period the
claim for breach is waived by Buyer. The purpose of this exclusive remedy shall
be to provide Buyer with free repair and replacement of defective parts in the
manner provided for herein.
b. Notwithstanding Subparagraph 15A.(1.)a. above, if a defect
covered by said warranty is discovered within the warranty period in a
particular item of Hardware which significantly and detrimentally affects the
performance of the System and the operation of the restaurant in which it is
installed and Vendor is unable to repair or replace the defective item of
Hardware within fifteen (15) Days of Vendor's receipt of the defective Hardware
at its facility for those portions of the Territory which are not covered by a
Vendor on-site field service contract or Vendor's receipt of Buyer's notice for
those portions of the Territory which are covered by a Vendor on-site service
contract, then Vendor shall remove the defective System and shall provide Buyer
with a refund of the purchase price and installation price plus all associated
freight, duties and taxes paid by Buyer to Vendor for such System provided
however, the System will continue to be considered as a purchase for the purpose
of satisfying Buyer's Minimum or Optional Purchase Commitment.
c. Notwithstanding Subparagraph 15A.(1.)a. above, Buyer is
not required to return the defective Hardware to Vendor's facility for repair in
those portions of the Territory where Buyer and Vendor have an on-site field
service contract in effect at the time the warranty defect is discovered. For
those portions of the Territory where Buyer and Vendor do not have such on-site
field service contract, all Hardware required to be returned to Vendor pursuant
to Subparagraph 15A.(1.)a. above shall be shipped at Vendor's expense by the
most reasonable and practical means to the repair location designated by Vendor.
Upon repair or replacement, Vendor shall ship prepaid such repaired or
replacement Hardware to the address specified by Buyer. Unless otherwise agreed,
Buyer shall be responsible for obtaining governmental approvals and
documentation required for international shipment of returned Hardware. Buyer
shall be responsible for the proper packing of the defective Hardware in
accordance with instructions provided by Vendor.
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<PAGE>
d. In the event of a fire, explosion or other physical
consequence of such defect, Vendor shall compensate Buyer for any damage or
injury to property or persons proximately caused by such defect.
(2.) For breach of the express warranties set forth in Subparagraph
--------------------------------------------------------------
12A.(2.) and (3.) above:
- -----------------------
a. Vendor's sole liability and Buyer's exclusive remedy shall
be limited to Vendor, at its sole expense, defending any action brought against
Buyer based on a claim that any Component and/or Program infringes any United
States patent issued and existing as of the date this Agreement is executed by
Vendor, or United States copyright or trademark and will pay all reasonable
costs and damages finally awarded against Buyer in any such action which are
attributable to such claim, provided that: (1) Buyer shall promptly notify
Vendor in writing of notice of any such claim or allegation of infringement; and
(2) Buyer allows Vendor to have sole control of the defense of any such claim,
including, without limitation, all communications with claimant, all settlement
negotiations, and the conduct of all litigation; and (3) Buyer will cooperate
with Vendor and will provide Vendor with such assistance in such defense as
Vendor may reasonably request. Except in the event Vendor has not assumed the
defense within a reasonable period of time after Vendor's receipt of Buyer's
notice of the alleged infringement or ceases to defend Buyer, Vendor shall not
be responsible for any litigation expenses (including attorney's fees) incurred
by Buyer or settlements entered into by Buyer unless Vendor agrees to them in
writing which agreement shall not be unreasonably withheld.
b. Vendor shall have no liability to Buyer hereunder, or otherwise,
with respect to any claims of infringement which are based on the use of any
Component or Program or combination of Components or Programs with equipment,
programs or supplies not supplied by Vendor where such infringement would not
occur in the absence of such combination, nor shall Vendor have any liability
with respect to any claim of infringement based on use of any Component and/or
Program in a manner other than in accordance with this Agreement and/or any
License granted to Buyer under this Agreement, nor shall Vendor have any
liability to Buyer hereunder, or otherwise with respect to any claims for
infringement due to the Components and/or Programs being made or modified either
(i) by Buyer or others without the prior written authorization from Vendor or
(ii) by Vendor at Buyer's specific directions or instructions.
c. This Subparagraph 15A.(2.) states Vendor's entire liability to
Buyer under this Agreement or otherwise with respect to infringement of third
parties' patents, copyrights, trademarks, designs, trade secrets or other
proprietary rights.
d. If Vendor should become aware of a potential infringement
problem, Vendor shall promptly notify Buyer of the situation, and to avoid a
potential infringement of patent, trademark, copyright, design, trade secret or
other proprietary right, even if not alleged. Vendor may, at its sole option and
at its own expense, procure for Buyer the right to continue using the alleged
infringing item, or
14 of 19
<PAGE>
modify or replace such item with a comparable item to Buyer and/or Buyer's
reasonable satisfaction so as to avoid the infringement or remove the infringing
item. If the infringing item is removed by Vendor, Vendor shall promptly
provide a refund to Buyer of the purchase price and installation price plus all
associated freight, duties and taxes paid by Buyer to Vendor for such item as
depreciated on a eight (8) year straight line basis.
(3.) For breach of the express warranties set forth in Subparagraph
--------------------------------------------------------------
12A.(4.) or if Program errors/bugs are discovered in a System/Component
- -----------------------------------------------------------------------
installed by Vendor or its authorized representative:
- ----------------------------------------------------
a. Notwithstanding Subparagraph 12D. above, Vendor will, at its
sole expense, [CONFIDENTIAL TREATMENT REQUESTED]. Vendor shall commence its
efforts to correct such Errors upon its own discovery or upon receipt of notice
from Buyer of Errors, whichever is earlier. Both parties understand that
Vendor's ability to correct Errors in a reasonable amount of time is heavily
dependent upon the specific characteristics of the Errors. Therefore, if Buyer
reports Errors to Vendor, Buyer agrees that Vendor shall also be furnished, to
the extent reasonably possible, a general description of the Errors and a
detailed account of the context in which the Errors arise sufficient to allow
the Vendor to reproduce such Errors and to verify correction. For those Errors
which are: (i) critical (i.e. significantly affecting the operation of a
restaurant) and for which there is no alternative solution (as described in
Subparagraph 15A.(3.)(b.) below) Vendor will, upon correction of the Errors,
provide, at Vendor's expense, such correction to all restaurants which are using
the Program release in which the Errors appeared, and (ii) noncritical (i.e. not
significantly affecting the operation of the restaurant) and for which there is
no alternative solution (as described in Subparagraph 15A.(3.)(b.) below) Vendor
will, upon correction of the Errors, include, at Vendor's expense, such
correction in Vendor's next general Program release.
b. Notwithstanding any provision of this Agreement to the contrary,
whenever Vendor is obligated by this Agreement to provide corrections to Errors
or to use its best efforts to correct Errors in the microcode or Programs, if,
in Vendor's reasonable opinion, the Errors would require an inordinate amount of
programming effort on the part of Vendor to correct and the result of the
problem caused by the Errors is such that it can be avoided through reasonable
procedural or other means, Vendor may, in lieu of correcting the Errors, provide
Buyer with an alternative solution to the problem provided however that such
alternative solution is practical to implement and is reasonably acceptable to
Buyer.
c. This Subparagraph 15A.(3.) states Vendor's entire liability to
Buyer and Buyer's exclusive remedy under this Agreement for any Errors
discovered in the Programs.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
(4.) If Vendor, repudiates this Agreement or commits any other
---------------------------------------------------------
material breach of this Agreement and fails to remedy such breach [CONFIDENTIAL
- -------------------------------------------------------------------------------
TREATMENT REQUESTED] after receipt of written notice by Buyer specifying such
- -----------------------------------------------------------------------------
alleged breach, then Buyer's sole and exclusive remedy and Vendor's sole
- ------------------------------------------------------------------------
liability shall be limited to the following:
- -------------------------------------------
a. Buyer may cancel this Agreement, such cancellation to be
effective as of the date notice of such is received, via fax or personal
delivery, by Vendor. Cancellation shall cancel the remaining portion of Buyer's
Minimum Purchase Commitment or Optional Purchase Commitment, as applicable,
(i.e. that portion which had not been Delivered as of the date of cancellation)
and shall be without further liability to Vendor, provided however, that Buyer
shall fulfill all of its unsatisfied obligations or liabilities which arose
prior to said cancellation; and/or
b. Buyer may, upon written notice to Vendor, cancel any or all
of their outstanding Releases to the extent the Components, Systems and/or
Programs ordered hereby have not been shipped or are not ready for shipment on
the date of cancellation; and/or
c. Buyer may go into the marketplace and purchase the remaining
portion of Buyer's Minimum Purchase Commitment or Optional Purchase Commitment,
as applicable (i.e. that portion which had not been Delivered as of the date of
cancellation) from a third party and the difference between the purchase price
which Buyer actually pays and the applicable purchase price stated in this
Agreement, to the extent such difference does not [CONFIDENTIAL TREATMENT
REQUESTED] shall be paid by Vendor to Buyer; and/or
d. Any or all other remedies which are applicable and available
to the Buyer under the provisions of the New York Uniform Commercial Code.
e. In no event shall anything herein be construed in such a
manner as to effect a forfeiture of monies paid by Buyer to Vendor hereunder.
B. Vendor's Remedies:
(1.) If Buyer repudiates or materially breaches this Agreement at
any time prior to Vendor's Delivery of all of the Minimum Purchase Commitment
and does not timely cure such breach, then Buyer and Vendor hereby agree that
Vendor may manufacture and ship to a Vendor facility (which shall be deemed as
Buyer taking Delivery and title to such Systems/Components), [CONFIDENTIAL
TREATMENT REQUESTED] the remaining quantity of the Systems/Components of the
Minimum Purchase Commitment which Buyer is required to but has failed to take
Delivery of and title to prior to such required date in order to satisfy such
purchase commitment obligation, and require Buyer to pay for all such
Systems/Components, at the applicable purchase prices and in accordance with the
payment provisions stated in this Agreement.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
(2.) If Buyer repudiates or otherwise commits any material breach
(other than that which is covered by Subparagraph 15B.(1) above) of this
Agreement including but not limited to, the payment and license provisions of
this Agreement, in a material manner, and fails to cure such breach
[CONFIDENTIAL TREATMENT REQUESTED] after receipt of written notice by Vendor
specifying such alleged breach, then Buyer and Vendor hereby agree that Vendor's
sole and exclusive remedies and Buyer's sole liability shall be limited to the
following; Vendor may, in its sole discretion.
a. Cancel this Agreement without any further obligation or
liability to Buyer, (except for its obligations of confidentiality as specified
in Paragraph 11 of this Agreement and Exhibits F1 and F2 of this Agreement) such
cancellation to be effective as of the date notice of such is received, via fax
or personal delivery, by Buyer; provided, however, that Vendor shall fulfill all
of its unsatisfied obligations or liabilities which arose prior to such
cancellation;
b. Require Buyer to pay the price per System for all Systems
Delivered [CONFIDENTIAL TREATMENT REQUESTED] it may have been entitled to for
exercise of its option and with or without demand or notice to Buyer declare any
amount unpaid immediately due and payable;
c. Require Buyer to take tittle to and pay for, at the Minimum
Purchase Commitment price per System and in accordance with the payment
provisions stated in this Agreement.
(i) all remaining Systems/Components of the Minimum Purchase
Commitment or Optional Purchase Commitment, as applicable, and
(ii) all additional Systems/Components and/or Programs which
had been ordered by Buyer but had not been Delivered by Vendor on or before the
date of Vendor's cancellation; and
d. Any or all other remedies which are applicable and available
to the Seller under the provisions of the New York Uniform Commercial Code.
C. Vendor neither assumes nor authorizes any other person to assume
for Vendor any other liability in connection with the sale or use of the
Systems/Components sold under this Agreement
16. ESCROWED MATERIAL:
------------------
Buyer and Vendor agree to abide by the terms and conditions of the
Escrow Agreement as set forth in Exhibit G attached hereto and incorporated
herein by reference.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
17 of 19
<PAGE>
17. COMPLETE AGREEMENT:
-------------------
This Agreement is the complete Agreement between the parties with
respect to its subject matter. This Agreement is entered into after full
investigation, without either party relying on any statement or representation
made by the other party not embodied herein. their terms and conditions of this
Agreement may not be supplemented, changed, waived, discharged, terminated or
otherwise modified orally or by the terms of any Purchase Order or Release,
acknowledgment, invoice or other such instrument, but only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge, termination or modifications is sought. No waiver of any breach of
any obligation hereunder shall be deemed a waiver of such obligation or of any
subsequent breach of the same or any other obligation.
18. GOVERNING LAW:
--------------
This Agreement shall be construed and interpreted in accordance with the
laws of the State of New York.
19. SEVERABILITY:
-------------
In the event that any one or more provisions contained in this Agreement
should, for any reason, be held to be unenforceable in any respect under the
laws of any State or of the United States, its unenforceability shall not affect
any other provisions of this Agreement, but shall be deemed replaced by an
enforceable provisions determined by the arbiter of the dispute to be most
closely reflective of the parties original intent.
20. ASSIGNMENT:
-----------
A. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of each of the parties; provided, however,
that neither party shall assign its rights nor delegate any of its duties or
obligations under this Agreement, including the Confidentiality Agreement and
Escrow Agreement, without the prior written consent of the other party, which
consent will not be unreasonably withheld.
B. Notwithstanding Subparagraph 20A. above, Buyer may assign its rights
under this Agreement to another subsidiary of its parent corporation, Pepsico,
provided Buyer is not released from its responsibilities and obligations set
forth in this Agreement and provided further that any System/Components
purchased or any Programs or associated Documentation licensed by an assignee
under this Agreement shall only be purchased or licensed for installation and
use in a Taco Bell or Hot'n Now restaurant.
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<PAGE>
21. SURVIVAL:
---------
The applicable rights and obligations set forth in Paragraphs 1, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of this Agreement shall survive and
continue after any expiration, cancellation, or termination of this Agreement
and shall be binding upon the parties and their successors and assigns.
22. NOTICES:
--------
All communications and notices relating to this Agreement are to be sent
by fax, personal or reputable overnight delivery addressed as follows:
If to Vendor: If to Buyer:
- ------------ ------------
PAR Microsystems Corporation Taco Bell Corp.
220 Seneca Turnpike 17901 Von Karman
New Hartford, NY 13413 Irvine, CA 92714
Attention: President Attention: Vice President
(copy Attn: Legal Dept.) Information Technology Dept.
(copy Attn: Legal Dept.)
IN WITNESS WHEREOF, the parties have hereunto have executed this
Agreement effective as of the first date set forth above.
PAR MICROSYSTEMS CORPORATION TACO BELL CORP.
By [CONFIDENTIAL TREATMENT By /s/ Richard Goodman
------------------------
REQUESTED]
------------------------
Title National Account Mngr Title SUP & CFO
----------------------- ---------------------
Reviewed by:
--------------
Date: 12/8/95
---------------------
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
19 of 19
<PAGE>
EXHIBIT 10.2
[CONFIDENTIAL TREATMENT REQUESTED]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE
406.
TACO BELL SERVICE INTEGRATION AGREEMENT
---------------------------------------
INDEX
-----
<TABLE>
<CAPTION>
<S> <C>
DEFINITIONS................................................. 1
TERM AND TERMINATION........................................ 2
COVERAGE OF EQUIPMENT....................................... 3
HELP DESK SUPPORT........................................... 4
ON-SITE REMEDIAL MAINTENANCE................................ 6
PERFORMANCE EVALUATION, PENALTY & CUSTOMER'S REMEDY......... 10
CUSTOMER RESPONSIBILITIES................................... 15
EXCLUSIONS FROM COVERAGE.................................... 16
UPCHARGE ITEMS.............................................. 16
REPORTING REQUIREMENTS...................................... 18
PRICING, INVOICING AND PAYMENT.............................. 18
SITEBASE RETENTION.......................................... 21
WARRANTY DISCLAIMER......................................... 22
LIMITATION OF LIABILITY..................................... 22
GENERAL..................................................... 15
EXHIBIT A
EXHIBIT B................................................... 30
EXHIBIT C................................................... 31
EXHIBIT D................................................... 32
EXHIBIT E................................................... 35
EXHIBIT F................................................... 38
EXHIBIT Fl.................................................. 42
EXHIBIT F2.................................................. 47
EXHIBIT G................................................... 48
</TABLE>
<PAGE>
PAR SERVICE INTEGRATION AGREEMENT
---------------------------------
By and between PAR Microsystems Corporation ("PAR"), a New York corporation,
with its principal office located at 8383 Seneca Turnpike, New Hartford, New
York 13413 and Taco Bell Corp. ("Customer"), a California corporation, with its
principal offices located at 17901 Von Karman, Irvine, California 92714-6212.
PAR and Customer agree that the following terms and conditions apply to Help
Desk Support and On-Site Remedial Maintenance Service provided by PAR for all
PAR and certain Third Party Equipment currently installed and to be installed at
the Sites, defined below, during the term of this PAR Service Integration
Agreement ("Agreement").
1. DEFINITIONS
1.1 "Site(s)" covered under this Agreement shall include:
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(a) all Customer owned Taco Bell, Taco Bell Express and Hot 'n Now
restaurants located within the United States of America and Canada in which
any of the Equipment set forth in Exhibit A attached to and made a part of
this Agreement, is installed, and
(b) all Customer owned locations in Puerto Rico and all Customer
franchisee/ licensee restaurant locations within the United States of
America and Canada for the sole purpose of providing On-Site Remedial
Maintenance Service for the T.A.C.O. back-office personal computers.
1.2 "PAR Equipment" shall include all hardware and software distributed by PAR
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installed at a Site(s) that is eligible for service under this Agreement. Such
software is included for the sole purpose of providing Customer with Help Desk
Support in the use of such software.
1.3 "Third Party Equipment" shall include the hardware and software running on
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such equipment set forth in Exhibit A (as may be subsequently amended by the
parties during the term of this Agreement) installed at a Site(s), that is
eligible for service under this Agreement. Such software is included for the
sole purpose of providing Customer with Help Desk Support in the use of such
software.
1.4 "Equipment" shall mean all PAR Equipment and Third Party Equipment, or a
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specified subgroup thereof.
1.5 [CONFIDENTIAL TREATMENT REQUESTED] shall mean the licensed PAR Service
Management system utilized by PAR.
1.6 "Call Priority" shall mean the priority assigned by the Customer Service
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Communication Center ("CSCC") to an incoming Customer call.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
<PAGE>
1.7 "Days" shall mean calendar days unless otherwise designated.
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1.8 "PAR Holidays" shall mean those holidays established by PAR on a calendar
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year basis. PAR shall notify Customer of PAR's holiday schedule thirty (30)
Days prior to commencement of each calendar year within the term of this
Agreement. PAR Holidays from the Effective Date of this Agreement through the
end of calendar year 1995 are as follows: September 4, November 23, November 24
and December 25, 1995.
1.9 "Customer Help Desk Holidays" shall mean those Customer Help Desk holidays
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established by Customer on a calendar year basis. Customer shall notify PAR of
Customers Help Desk holiday schedule thirty (30) Days prior to commencement of
each calendar year during the term of this Agreement. Customer Help Desk
Holidays from the Effective Date of this Agreement through the end of calendar
year 1995 are as follows: November 23 and December 25, 1995.
1.10 "FSO" is PAR's Domestic and Canadian Field Service Organization and
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certain PAR selected independent subcontractors performing Remedial Maintenance
Service on PAR's behalf in the United States, Canada and Puerto Rico.
1.11 "On-Site Remedial Maintenance Service" ("RMS') is maintenance required due
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to malfunction(s) in Equipment which necessitates service on Site. RMS is
provided by the FSO and is only available for that Equipment set forth on
Exhibit A hereto, subject to the requirements of Section 3, below.
1.12 "Help Desk Support" is support provided remotely, by telephone, by PAR's
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CSCC for certain Equipment set forth on Exhibit A hereto, and user support of
the software, referenced in Sections 1.2 & 1.3 above, subject to the
requirements of Section 3, below.
1.13 First Contract Year shall mean the period commencing with the Effective
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Date and terminating at midnight on August 31, 1996.
1.14 Second Contract Year shall mean the period commencing September 1, 1996
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and terminating on August 31, 1997.
1.15 Third Contract Year (if applicable) shall mean the period commencing
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September 1, 1997 and terminating on August 31, 1998.
2. TERM AND TERMINATION
2.1 Unless extended pursuant to Section 2.2 below, the term of this Agreement
shall be two (2) years. This Agreement shall become effective on September 1,
1995 ("Effective Date") and shall terminate on August 31, 1997.
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<PAGE>
2.2 Provided written notification of exercise is given to PAR by Customer not
later than [CONFIDENTIAL TREATMENT REQUESTED], Customer may extend this
Agreement for an additional year (a Third Contract Year). If Customer does not
exercise this option to extend by such date [CONFIDENTIAL TREATMENT REQUESTED]
as set forth in Exhibit B hereto.
2.3 Notwithstanding Subsection 2.1 or 2.2 above, either party shall have the
right to terminate this Agreement without notice upon the occurrence of any of
the following events: (i) if the other party petitions for a reorganization
under the Bankruptcy Act, or is adjudicated bankrupt, or if a receiver, trustee
or liquidator is appointed for the other party's business, or if the other party
makes an assignment for the benefit of creditor's, or should the other party
admit in writing its inability to pay its debts as they become due; (ii) if the
other party defaults in the payment of any sum due hereunder, and fails to cure
said default within sixty (60) Days after receipt of written notice from the
other party; or (iii) if the other party attempts to assign this Agreement
without the other party's prior written consent. Such termination shall be
without prejudice to any other rights or remedies the terminating party may
have. Any such termination shall not relieve Customer of its obligation to pay
PAR for those service fees and/or charges that accrued prior to termination.
3. COVERAGE OF EQUIPMENT
3.1 For the term of this Agreement, Customer agrees that PAR will provide and
will be Customers exclusive service provider for:
(a) Help Desk support and RMS Support for all Equipment installed in all
Customer owned Taco Bell, Taco Bell Express and Hot 'n Now restaurants
located within the United States of America and Canada, and
(b) RMS Support for the T.A.C.O. back-office personal computers installed
in all Customer locations in Puerto Rico and all Customer
franchisee/licensee restaurant locations within the United States of
America and Canada.
3.1.1 Notwithstanding Section 3.1 above, and subject to the
requirements/restrictions set forth in Sections 11 & 12 of this Agreement
neither of which are waived or modified by -this provision, if Customer decides
not to extend the Agreement by one year to a total of three (3) years, then
during the [CONFIDENTIAL TREATMENT REQUESTED] of the Agreement Customer shall
have the right to remove a maximum of [CONFIDENTIAL TREATMENT REQUESTED] Sites
from coverage under this Agreement and to contract with another party for the
service of such Sites as a field trial. Should the Agreement be extended for a
[CONFIDENTIAL TREATMENT REQUESTED], Customer shall have the right to a field
trial on the same terms described above during the [CONFIDENTIAL TREATMENT
REQUESTED].
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
3.2 All PAR Equipment set forth in Exhibit A attached hereto and made part
hereof installed in Customer owned Taco Bell, Taco Bell Express and Hot 'n Now
restaurants -located within the United States of America and Canada prior to the
Effective Date, shall be eligible for service under this Agreement upon the
Effective Date.
3.2.1 All new Third Party Equipment set forth in Exhibit A installed in
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Customer owned Taco Bell, Taco Bell Express and Hot 'n Now restaurants located
within the United States of America and Canada on or after the Effective Date,
shall be eligible for service under this Agreement upon the installation date.
3.3 All Third Party Equipment set forth in Exhibit A attached hereto installed
in Sites prior to the Effective Date shall be eligible for service under this
Agreement on the Effective Date. All Equipment set forth in Exhibit A which is
acquired by Customer after the Effective Date in conjunction with Customer's
acquisition of a restaurant(s) within which such Equipment is installed, shall
be eligible for service under this Agreement only upon PAR's acceptance of such
Equipment for service.
3.4 All new Third Party Equipment set forth in Exhibit A attached hereto
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installed in Customer owned Sites located within the United States of America
and Canada and all new T.A.C.O. back-office personal computers installed in
Customer owned Sites in Puerto Rico and Customer franchise/licensee Sites within
the United States of America and Canada after the Effective Date shall be
eligible for service under this Agreement upon the installation date.
3.5 All new Equipment and all used Third Party Equipment installed at
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Customer's Sites which was not set forth in Exhibit A as of the Effective Date
but is subsequently added thereto by mutual Agreement of the parties shall be
eligible for service.
3.6 PAR's acceptance shall be provided only after:
(a) PAR's inspection of the Equipment at PAR's then current time and
material rates, which shall not exceed [CONFIDENTIAL TREATMENT REQUESTED];
and
(b) completion, at PAR's then current time and material rates, of any
repairs or adjustments, which are deemed necessary by PAR to bring the
Equipment into proper, or operating condition and which are authorized by
Customer.
4. HELP DESK SUPPORT
4.1 For purposes of this Section 4, the following definitions shall apply:
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
4.1.1 "Call Text Update" is the date and time electronically generated by
4.1.2 "CSCC Response" is the duration of time from the assignment of a Call
Priority until Call Text Update.
4.1.3 "CSCC Response Percentage" is calculated for each CSCC Call Priority
Category by dividing the number of calls for such CSCC Call Priority Category in
which PAR has met or exceeded its CSCC Response by the total number of calls of
such Call Priority received by PAR.
4.2 The Principal Period of Maintenance ("PPM") for Help Desk Support
provided by the CSCC is [CONFIDENTIAL TREATMENT REQUESTED].
4.3 For purposes of this Section 4, the following Call Priority categories
are applicable to CSCC/Help Desk Support:
<TABLE>
<CAPTION>
CSCC Call Priority Definition
- ------------------ ----------
<S> <C>
P1 [CONFIDENTIAL TREATMENT REQUESTED]
P2 [CONFIDENTIAL TREATMENT REQUESTED]
P3 [CONFIDENTIAL TREATMENT REQUESTED]
P4 [CONFIDENTIAL TREATMENT REQUESTED]
</TABLE>
4.4 Help Desk Support requires PAR to meet the following CSCC Response times
in providing a Call Text Update:
<TABLE>
<CAPTION>
CSCC Call Priority CSCC Response CSCC Response Percentage
- ------------------ ------------- ------------------------
<S> <C> <C>
P1 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
P2 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
P3 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
</TABLE>
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
<TABLE>
<S> <C> <C>
P4 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
</TABLE>
4.5 In cases where PAR's CSCC response to calls is restricted or impossible
due to circumstances beyond the reasonable control of the CSCC, including but
not necessarily limited to: acts of nature, acts of war, strikes, electrical
outages, support system failures or problems (i.e. [CONFIDENTIAL TREATMENT
REQUESTED], paging, phone systems), fire, etc., then such calls shall not be
used in the determination of the CSCC Response Percentages.
5. ON-SITE REMEDIAL MAINTENANCE
5.1 For purposes of this Section 5, the following definitions shall apply:
5.1.1 "Notify" is the first available "Contract Hour" date and time after which
it has been determined that an FSO technician needs to be sent to the Site.
5.1.2 "Arrival" is the actual date and time that the FSO technician arrives at
the Site.
5.1.3 "Contract Hour" is that or those hours falling within the applicable PPM.
5.1.4 "FSO RMS Response" is the duration of time from the electronically
generated [CONFIDENTIAL TREATMENT REQUESTED] system "Notify" date and time until
the date and time logged into the [CONFIDENTIAL TREATMENT REQUESTED] system for
"Arrival." Only "Contract Hours" will be applied to this calculation.
5.1.5 "FSO RMS Restoral" is the duration of time from the [CONFIDENTIAL
TREATMENT REQUESTED] calculated "Estimated Time of Arrival" date and time until
the [CONFIDENTIAL TREATMENT REQUESTED] "Complete" date and time. "Clock Hours"
will be applied to this calculation.
5.1.6 "Estimated Time of Arrival" ("ETA") is the [CONFIDENTIAL TREATMENT
REQUESTED] calculated latest possible "Arrival" date and time that will allow
the FSO to meet the referenced FSO RMS Response times.
5.1.7 "Complete" is the date and time entered into the [CONFIDENTIAL TREATMENT
REQUESTED] which is the date and time PAR determined the Equipment was restored
to its proper operating condition.
5.1.8 "Clock Hours" are all available time periods not affected by PPM but
excluding PAR Holidays and in the case of RMS PC calls, Customer Help Desk
Holidays.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
5.1.9 "FSO RMS Response Percentage" for an applicable period is calculated for
each Call Priority category by dividing the number of calls for such Call
Priority in which PAR has met or exceeded its FSO RMS Response by the total
number of calls of such Call Priority received by PAR, during such period.
5.1.10 "FSO RMS Restoral Percentage" for an applicable period is calculated for
each Call Priority category by dividing the number of calls for such Call
Priority in which PAR has met or exceeded its FSO RMS Restoral by the total
number of calls of such Call Priority received by PAR, during such period.
5.2 The following Call Priority categories are applicable to RMS:
<TABLE>
<CAPTION>
RMS Call Priority Definition
- ----------------- ----------
<S> <C>
P0 [CONFIDENTIAL TREATMENT REQUESTED]
P1 [CONFIDENTIAL TREATMENT REQUESTED]
P2 [CONFIDENTIAL TREATMENT REQUESTED]
PC [CONFIDENTIAL TREATMENT REQUESTED]
ND [CONFIDENTIAL TREATMENT REQUESTED]
</TABLE>
5.3 The PPMs for RMS are as follows:
<TABLE>
<CAPTION>
RMSCall Priority PPM
- ---------------- ---
<S> <C>
P0 [CONFIDENTIAL TREATMENT REQUESTED]
P1 [CONFIDENTIAL TREATMENT REQUESTED]
P2 & ND [CONFIDENTIAL TREATMENT REQUESTED]
PC [CONFIDENTIAL TREATMENT REQUESTED]
</TABLE>
5.4 RMS will be provided during the PPMs set forth above in Section 5.3.,
following a determination by the CSCC that the reported problem requires RMS.
The determination to provide RMS will be made subsequent to remote
troubleshooting and technical assistance, provided by the CSCC, which must be
first utilized by a Site requesting assistance. A Site that
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
refuses or fails to devote a reasonable amount of time and effort of trained
Site personnel to troubleshoot the problem via the CSCC will cause the call to
be automatically assigned either a [CONFIDENTIAL TREATMENT REQUESTED] Call
Priority status [CONFIDENTIAL TREATMENT REQUESTED]. Such Priority status shall
be in PAR's reasonable discretion based on the information obtained by PAR.
[CONFIDENTIAL TREATMENT REQUESTED].
5.5 During RMS, the FSO may install or replace parts as it determines necessary
in order to restore the inoperative or malfunctioning Equipment to good
operating condition. [CONFIDENTIAL TREATMENT REQUESTED]. All replaced parts
become the property of PAR.
5.6 The FSO may, at its sole option, as part of the provision of RMS, make any
engineering changes or modifications to the Equipment which, in its sole
discretion, is required or desirable, if such changes do not negatively and
substantially impact Customers ability to operate the Equipment. However, with
respect to Third Party Equipment, PAR must receive Customer's prior written
approval of any change or modification. Customer must be notified of any
changes or modifications to the PAR Equipment which may materially impact
Customer's operations.
5.7 RMS as provided under this Agreement does not ensure uninterrupted
operation of the Equipment.
5.8 The FSO reserves the right to refuse to provide RMS when, in its reasonable
judgment, conditions at the Site represent a hazard to the safety and/or health
of FSO employees.
5.9 The FSO representative will notify the Site, by telephone, of the
approximate arrival date and time, prior to making an RMS call.
5.10 At the conclusion of an RMS call, a Customer Site management
representative shall sign the Incident Report presented by the FSO
representative concurring that the RMS call has been completed and that the
Equipment is functioning.
5.11 The FSO is required to meet the following response times in responding to
an RMS call:
<TABLE>
<CAPTION>
RMSCall Priority FSO RMS Response FSO RMS Response Percentage
- ---------------- --------------------- ---------------------------
<S> <C> <C>
P0 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
P1 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
</TABLE>
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
<TABLE>
<S> <C> <C>
P2 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
PC & ND [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED]
</TABLE>
[CONFIDENTIAL TREATMENT REQUESTED].
In cases where PAR's FSO RMS response and/or Restoral to a call is restricted or
impossible due to circumstances beyond the reasonable control of the FSO,
including but not necessarily limited to: acts of nature, acts of war, strikes,
unusual traffic conditions, electrical outages, support system failures or
problems (i.e. [CONFIDENTIAL TREATMENT REQUESTED], paging, phone systems), etc.,
then such calls shall not be used in the determination of the FSO RMS Response
Percentages and FSO RMS Restoral Percentages.
Additional time shall be permitted for response to P0 and Pl calls based upon
the Site's geographical distance from a PAR FSO location, as follows:
<TABLE>
<CAPTION>
Distance From PAR FSO Location Adder (Hours)
------------------------------ -------------
<S> <C>
[CONFIDENTIAL TREATMENT REQUESTED]miles [CONFIDENTIAL TREATMENT REQUESTED]
([CONFIDENTIAL TREATMENT REQUESTED]Km)
[CONFIDENTIAL TREATMENT REQUESTED]miles [CONFIDENTIAL TREATMENT REQUESTED]
([CONFIDENTIAL TREATMENT REQUESTED]Km)
[CONFIDENTIAL TREATMENT REQUESTED]miles [CONFIDENTIAL TREATMENT REQUESTED]
( [CONFIDENTIAL TREATMENT REQUESTED]Km)
</TABLE>
PAR FSO locations are set forth on Exhibit C hereto. FSO locations may be added
or deleted in PAR's sole's discretion provided PAR ensures that the total number
of Customer Sites (for which PAR provides RMS under the terms of this Agreement)
more than [CONFIDENTIAL TREATMENT REQUESTED] miles ([CONFIDENTIAL TREATMENT
REQUESTED] Km) from the closest FSO location does not exceed [CONFIDENTIAL
TREATMENT REQUESTED]. PAR shall notify Customer in writing of any changes in
FSO locations.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
5.12 The FSO is required to meet the following FSO RMS Restoral times and
Percentages in restoring the subject Equipment to proper operating condition:
<TABLE>
<CAPTION>
LEVEL 1 LEVEL 2
------- -------
FSO RMS Restoral FSO RMS Restoral
Percentage FSO RMS Restoral Percentage FSO RMS Restoral
---------- -------- ---------- --------
Call Priority
- -------------
<S> <C> <C> <C> <C>
P0 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED] REQUESTED] REQUESTED]
P1 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED] REQUESTED] REQUESTED]
P2 [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED] REQUESTED] REQUESTED]
PC&ND [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] REQUESTED] REQUESTED] REQUESTED]
</TABLE>
5.13 The following RMS Call Priority uplift options shall be available to the
Customer:
Option 1 - Uplift from any RMS Call Priority to "P0" RMS Call priority.
- --------
Provided PAR meets the P0 FSO RMS Response and FSO RMS Level 1 Restoral set
forth in Sections 5.11 and 5.12 above, Customer shall be invoiced at the fee set
forth on Exhibit D attached hereto. For monthly reporting, calls uplifted to P0
RMS Call Priority will be measured against the initially assigned RMS Call
Priority FSO RMS Response and FSO RMS Level 1 Restoral commitments.
Option 2 - Uplift from P2, PC or ND RMS Call Priority to P1 RMS Call Priority.
- --------
Provided PAR meets the P1 FSO RMS Response and FSO RMS Level 1 Restoral set
forth in Sections 5.11 and 5.12 above, Customer shall be invoiced at the fee set
forth on Exhibit D attached hereto. For monthly reporting, calls uplifted to a
P1 RMS Call Priority will be measured against the initially assigned RMS Call
Priority FSO RMS Response and FSO RMS Level 1 Restoral commitments.
5.14 Should the FSO render Equipment partially operational on a P1 or P2 call,
the RMS Call Priority shall not be changed and the call shall not be closed
until the Equipment is fully restored to proper operating condition.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
5.15 Should a Site representative request RMS for other Equipment installed in
such Site while an FSO representative is at the Site repairing another item of
Equipment, the original call will be completed and closed and a new RMS call
will thereafter be opened by such FSO representative before leaving the Site.
5.16 Should the RMS Call Priority for a call be changed by the CSCC subsequent
to dispatch, the [CONFIDENTIAL TREATMENT REQUESTED] shall be used to measure
performance.
5.17 Notwithstanding the RMS Call Priority assigned, FSO RMS P1 Response and
FSO RMS Level 1 P1 Restoral shall apply to all RMS calls [CONFIDENTIAL TREATMENT
REQUESTED] which are received by PAR within [CONFIDENTIAL TREATMENT REQUESTED].
6. PERFORMANCE EVALUATION, PENALTY & CUSTOMER'S REMEDY
6.1 For purposes of this Section 6 the Following definitions shall apply:
6.1.1 "POS Revenue" shall mean the revenue received by PAR under this Agreement
from Customer during the [CONFIDENTIAL TREATMENT REQUESTED] for providing RMS
for Customer's [CONFIDENTIAL TREATMENT REQUESTED]. POS Revenue excludes all
time and material revenue generated under this Agreement and all revenue which
may result from the performance by PAR of any of the items set forth in Sections
8 and/or 9 of this Agreement.
6.1.2 "PC Revenue" shall mean the revenue received by PAR under this Agreement
from Customer during the [CONFIDENTIAL TREATMENT REQUESTED] for providing RMS
for Customer's [CONFIDENTIAL TREATMENT REQUESTED]. PC Revenue excludes all time
and material revenue generated under this Agreement and all revenue which may
result from the performance by PAR of any of the items set forth in Sections 8
and/or 9 of this Agreement.
6.1.3 "CSCC Revenue" shall mean the revenue received by PAR under this Agreement
from Customer during the [CONFIDENTIAL TREATMENT REQUESTED] for providing
[CONFIDENTIAL TREATMENT REQUESTED]. CSCC Revenue excludes all time and material
revenue generated under this Agreement and all revenue which may result from the
performance by PAR of any of the items set forth in Sections 8 and/or 9 of this
Agreement.
6.1.4 [CONFIDENTIAL TREATMENT REQUESTED] shall commence
[CONFIDENTIAL TREATMENT REQUESTED] and terminate at midnight on
[CONFIDENTIAL TREATMENT REQUESTED].
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
6.1.5 [CONFIDENTIAL TREATMENT REQUESTED] if applicable, shall commence upon
termination of any applicable recovery period (described hereinafter) and shall
terminate with respect to a Performance Measurement Category, [CONFIDENTIAL
TREATMENT REQUESTED].
6.1.6 [CONFIDENTIAL TREATMENT REQUESTED] if applicable, shall commence upon
termination of any applicable recovery period (described hereinafter) and shall
terminate with respect to a Performance Measurement Category, [CONFIDENTIAL
TREATMENT REQUESTED].
6.1.7 [CONFIDENTIAL TREATMENT REQUESTED] shall commence [CONFIDENTIAL TREATMENT
REQUESTED] and terminate at midnight on [CONFIDENTIAL TREATMENT REQUESTED].
6.1.8 [CONFIDENTIAL TREATMENT REQUESTED] if applicable, shall commence
[CONFIDENTIAL TREATMENT REQUESTED] and terminate at midnight on [CONFIDENTIAL
TREATMENT REQUESTED].
6.1.9 "Penalty" shall mean the amount assessed pursuant to Sections 6.2 through
6.6 hereinafter which shall be payable to Customer by PAR and computed pursuant
to Exhibit "F," "Penalties" and which are more particularly described in the
accompanying examples set forth in" Exhibits "F.1" and "F.2."
6.2 Notwithstanding any other provisions of this Agreement which identify
various performance measurements, only the following [CONFIDENTIAL TREATMENT
REQUESTED] Performance Measurement Categories shall be used in the assessment of
penalties against PAR:
Performance Measurement
Categories:
[CONFIDENTIAL TREATMENT REQUESTED]
6.3 In the event,
(i) PAR's performance for the [CONFIDENTIAL TREATMENT REQUESTED]
does not result in the payment of a Penalty by PAR, and
(ii) the Customer has decided to extend this Agreement for
[CONFIDENTIAL TREATMENT REQUESTED],
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
then notwithstanding any provision herein to the contrary, Penalties will not be
applicable to the [CONFIDENTIAL TREATMENT REQUESTED] of this Agreement.
6.4 PAR shall, within [CONFIDENTIAL TREATMENT REQUESTED] Days after the end
of the [CONFIDENTIAL TREATMENT REQUESTED], provide Customer with a measurement
period report package which includes all reports the parties may agree to,
including a summary of PAR's performance for each of the [CONFIDENTIAL TREATMENT
REQUESTED] Performance Measurement Categories, over the entire applicable
measurement period (hereinafter "Measurement Period Report"). Based upon the
data contained in such Measurement Period Report package, Customer shall
evaluate PAR's performance with respect to each of the Performance Measurement
Categories against the applicable performance percentage commitments set forth
in Sections 4 & 5 above and the Penalty schedules set forth in Exhibit F of this
Agreement. Customer shall within (45) Days after the end of the applicable
[CONFIDENTIAL TREATMENT REQUESTED], notify PAR if writing of any Penalty (by
Performance Category).
6.5 For the [CONFIDENTIAL TREATMENT REQUESTED], if Customer notifies PAR of a
Penalty for PAR's failure to satisfy the performance percentage commitment for
one or more of the [CONFIDENTIAL TREATMENT REQUESTED] Performance Measurement
Categories (hereinafter such failed Measurement Categories shall be referred to
as the "Recovery Category(ies)"), then PAR shall have from PAR's receipt of such
Penalty notice through [CONFIDENTIAL TREATMENT REQUESTED] to improve its
performance in such Recovery Category(ies) (hereinafter "Recovery Period").
6.5.1 If during the [CONFIDENTIAL TREATMENT REQUESTED] of the Recovery Period,
PAR's performance for such [CONFIDENTIAL TREATMENT REQUESTED] satisfies the
performance percentage commitment for [CONFIDENTIAL TREATMENT REQUESTED] of the
Recovery Categories, then with respect to such satisfied Recovery Category(ies),
PAR shall commence the applicable Contract Year Probationary Period.
Hereinafter, during the Probationary Period such satisfied Recovery
Category(ies) shall be referred to as "Probationary Categories."
6.5.2 If during the [CONFIDENTIAL TREATMENT REQUESTED] of the Recovery Period,
PAR's performance for such [CONFIDENTIAL TREATMENT REQUESTED] fails to satisfy
the performance percentage commitment for [CONFIDENTIAL TREATMENT REQUESTED] of
the Recovery Categories, then with respect to such failed Recovery
Category(ies), PAR shall pay to Customer the Penalty associated with such failed
Recovery Category(ies), within [CONFIDENTIAL TREATMENT REQUESTED] Days after
termination of the Recovery Period.
6.5.3 If PAR's performance [CONFIDENTIAL TREATMENT REQUESTED] throughout the
entire Probationary Period satisfies the performance percentage commitment for
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
[CONFIDENTIAL TREATMENT REQUESTED] of the Probationary Categories then PAR shall
be relieved of its obligation to pay Customer the applicable [CONFIDENTIAL
TREATMENT REQUESTED] Penalty associated with such Probationary Category(ies)
satisfied.
6.5.4 If PAR's performance during [CONFIDENTIAL TREATMENT REQUESTED] of the
Probationary Period, should fail to satisfy the performance percentage
commitment for [CONFIDENTIAL TREATMENT REQUESTED] of the Probationary
Categories then PAR shall pay to Customer the Penalty associated with such
failed Probationary Category(ies), within [CONFIDENTIAL TREATMENT REQUESTED]
Days after termination of the Probationary Period for such failed Probationary
Category(ies).
6.6 Except as provided in Section 6.7 below, the imposition of Penalties in
accordance with this Section 6 and Exhibit F shall be Customer's sole and
exclusive remedy for PAR's failure to satisfy any response or restoral
performance commitments set forth in this Agreement. In no event,
(i) shall PAR be liable to Customer in other way (monetary or
nonmonetary), and/or
(ii) shall Customer have the right to terminate this Agreement prior
to August 31, 1997
for PAR's failure to satisfy any response or restoral performance commitments.
6.7 Notwithstanding any provision herein to the contrary, in the event that
PAR fails to respond to any RMS Pl service call more than [CONFIDENTIAL
TREATMENT REQUESTED] from ETA, and such failure is caused by the intentional
disregard or gross negligence of PAR, then Customer shall be entitled to receive
from PAR as reasonable liquidated damages and not as a penalty, the sum of
[CONFIDENTIAL TREATMENT REQUESTED] beyond such initial [CONFIDENTIAL TREATMENT
REQUESTED] period that PAR fails to respond and reasonably pursue RMS.
7 CUSTOMER RESPONSIBILITIES
7.1 Customer shall ensure that all appropriate Site personnel are trained in
the operation of the Equipment and shall inform all such personnel of the
significant terms and conditions of this Agreement. Customer shall provide a
sufficient number of trained, English speaking personnel at each Site such that
at least one (1) supervisory employee trained and qualified in the operation of
the Equipment is available to work with/assist a CSCC representative, by
telephone, during the Site's normal operating hours to troubleshoot any
Equipment problems and/or resolve any operational or procedural problems found.
Such trained Site supervisory assistance is necessary to ensure effective and
timely resolution of the problem by PAR.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
7.2 Customer shall be responsible for ordering, installing and using only those
consumable items which conform to the Equipment's specifications and which are
necessary for routine operation, such as paper rolls, printer ribbons, keys,
diskettes and filters.
7.3 Customer shall use best efforts to allow FSO representatives full, free and
ready access to the Equipment. In addition, Customer shall provide, free of
charge, on Site; working space, heat, light, ventilation, electrical power and
outlets for use by FSO representatives to perform RMS. Such facilities shall be
promptly provided to the FSO representative upon arrival and shall be within a
reasonable working distance from the Equipment to ensure effective and efficient
RMS. If the FSO representative is not provided full, free and ready access to
the Equipment upon arrival and the failure to provide such is determined in
PAR's reasonable judgment to have resulted in PAR's failure to meet its response
and restoral commitments for such call and any other calls scheduled for such
FSO that day then the applicable response times and the restoral times for such
calls shall not be used in the performance measurements of the response or
restoral percentages.
7.4 Customer shall, at its expense, property maintain the Site and provide the
operating environment and necessary utility services for the Equipment in
accordance with PAR's or the applicable Third Party Equipment/software
manufacturer's specifications.
7.5 Customer shall not permit any person other than an FSO representative to
perform maintenance or to attempt any repair to the Equipment without the prior
written authorization of PAR. In the event such unauthorized third party
service is permitted by Customer on any Equipment, such Equipment shall no
longer be eligible for service under this Agreement. Such Equipment may regain
eligibility for service under this Agreement only after PAR's acceptance of such
Equipment in accordance with the terms of Section 3.6 above.
7.6 Customer shall provide PAR with reasonable prior written notice of all
product rollouts or other changes in Customer's operations in order for PAR to
properly forecast and implement any support changes necessary to meet its
service commitments. If Customer fails to provide such notice and the failure
to do so is determined in PAR's reasonable judgment to be the cause of PAR's
failure to meet its response and restoral commitments for certain calls, then
the applicable response times and the restoral times for such calls shall not be
used in the performance measurements of the response or restoral percentages.
8. EXCLUSIONS FROM COVERAGE
8.1 The service items set forth in Sections 8.2 through 8.7 below are outside
the scope of the Help Desk Support and RMS Support PAR has agreed to provide
pursuant to Sections 4 and 5 of this Agreement and therefore are excluded from
coverage under the terms of this Agreement. Notwithstanding any provision
herein to the contrary, PAR neither promises to provide nor is
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<PAGE>
obligated to provide any of such excluded services. However, PAR would
entertain a request for proposal from Customer to perform such services under a
separate agreement if Customer so desired.
8.2 [CONFIDENTIAL TREATMENT REQUESTED]
8.3 [CONFIDENTIAL TREATMENT REQUESTED]
8.4 [CONFIDENTIAL TREATMENT REQUESTED]
8.5 [CONFIDENTIAL TREATMENT REQUESTED]
8.6 [CONFIDENTIAL TREATMENT REQUESTED]
8.7 [CONFIDENTIAL TREATMENT REQUESTED]
9. UPCHARGE ITEMS
9.1 The items set forth in Sections 9.2 through 9.10 below are items which were
not priced into the Help Desk Support and RMS Support fees set forth in Exhibit
D attached hereto. Customer shall be charged additional fees at either PAR's
then current time and material rates (including reasonable travel expenses) or,
if agreed to in advance, the additional fees negotiated by the parties hereto
for all time, material and reasonable expense PAR expends, at the request of, or
as a result of Customer, on such items. Notwithstanding any provision herein to
the contrary, PAR neither promises to provide nor is obligated to provide any of
such items.
9.2 All RMS and Help Desk Support labor, material and expenses to correct
problems with or resulting from and/or caused by the use of any other equipment
(not connected to the Equipment) not covered under this Agreement unless such
equipment has been previously approved in writing by PAR.
9.3 All RMS or Help Desk Support labor, material and expenses resulting from
and/or caused by Customer's failure to provide the operating environment
required by the Equipment specifications, including, but not limited to, the
failure to provide or the failure of adequate electrical power, air conditioning
or humidity control.
9.4 All RMS or Help Desk Support labor, material and expenses resulting from
and/or caused by operation of the Equipment connected to or in combination with:
(a) other equipment, peripherals, attachments or devices not covered
under this Agreement or otherwise approved in writing by PAR;
(b) any software which PAR as of the time of the service has not
accepted;
(c) operating supplies not meeting Equipment specifications;
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
(d) material changes to Site operations (including but not necessarily
limited to material roll-outs such as 'Border Lights" etc.); or
(e) material changes to the Equipment or software.
9.5 All RMS or Help Desk Support labor, material and expenses resulting from
and/or caused by use of the Equipment for other than the normal usage for which
the Equipment was designed. For purposes of this Agreement, the term "normal
usage" is defined as regular, ordinary and routine usage for that specific piece
of Equipment.
9.6 All RMS or Help Desk Support labor, material and expenses resulting from
and/or caused by accident, abuse, neglect, misuse, unauthorized maintenance,
negligence or deliberate act including but not limited to the following:
a. Foreign objects or substance falling on or leaking onto the Equipment;
b. Improper handling, shipping or storage of the Equipment prior to or
after installation;
c. Disaster, which shall include, but not be limited to, fire, water,
wind, flood, lightning, electrical disturbance, war, civil disturbance,
other catastrophes or similar causes;
d. Installing, repairing, maintaining, replacing parts or modifying the
Equipment or software by anyone other than a PAR FSO representative; or
e. Operation or use of the Equipment or software not in accordance with
applicable written operating instructions.
9.7 All RMS or Help Desk Support labor, material and expenses to repair a
problem reported by Customer in accord with this Agreement which is determined
by the FSO representative not to be a problem with the Equipment but actually a
problem with an item not covered under this Agreement (e.g. Customer steam line
- - video jittering).
9.8 All RMS labor, material and expenses related to installations, changes or
modifications to Equipment, upgrades to Equipment, permanent removal of
Equipment or the relocation of Equipment within or between Sites.
9.9 All RMS labor, material and expenses to perform standard operational
functions, such as but not limited to the replacement of printer ribbons or
paper.
9.10 All RMS performed after the PPM or the next day (at increased costs to
PAR), caused when prompt access to the Equipment is not allowed or is materially
hampered by Customer.
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<PAGE>
10. REPORTING REQUIREMENTS
10.1 On a [CONFIDENTIAL TREATMENT REQUESTED] basis [CONFIDENTIAL TREATMENT
REQUESTED], PAR will deliver to Customer two (2) copies of a Contract Report
Package containing reports depicting PAR's performance under this Agreement for
the prior [CONFIDENTIAL TREATMENT REQUESTED]. The Contract Report Package will
be in the format as set forth in Exhibit G.
10.2 Field trial reports are outside the scope of this Agreement.
10.3 All information contained in the Contract Report Package or other reports
provided by PAR to Customer shall be deemed PAR Microsystems Company
Confidential Information and shall be covered by the Mutual Confidentiality
Agreement attached hereto as Exhibit E.
11. PRICING, INVOICING AND PAYMENT
11.1 Subject to Sections 2.2, 11.1, 11.10 and 11.11 herein, the prices to be
invoiced by PAR and paid by Customer for Help Desk Support and RMS are set forth
in Exhibit D attached hereto.
11.1.1 The prices set forth in Exhibit D for the [CONFIDENTIAL TREATMENT
REQUESTED] reflect a price reduction which is only applicable if:
(a) on the first day of the [CONFIDENTIAL TREATMENT REQUESTED], the
sum of the number of Customer owned and franchisee/licensee Sites for
which PAR provides both Help Desk Support and RMS Support for such
Sites point of sale Equipment (hereinafter in Sections 11.1 and 12
collectively the "POS Sites") pursuant to this Agreement is
[CONFIDENTIAL TREATMENT REQUESTED] the number of such Sites on the
Effective Date, [CONFIDENTIAL TREATMENT REQUESTED]
(b) Customer extends the Agreement for a [CONFIDENTIAL TREATMENT
REQUESTED] pursuant to Section 2.2 of this Agreement [CONFIDENTIAL
TREATMENT REQUESTED] PAR's performance over the [CONFIDENTIAL
TREATMENT REQUESTED] results in the payment of a Penalty by PAR to
Customer.
If Customer does not satisfy the requirements of Sections 11.1.1 (a) & (b)
above, then the [CONFIDENTIAL TREATMENT REQUESTED] pricing set forth in Exhibit
B shall become effective.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
11.1.2 The prices set forth in Exhibit D for the [CONFIDENTIAL TREATMENT
REQUESTED] reflect a price reduction which is only applicable if on the first
day of the [CONFIDENTIAL TREATMENT REQUESTED] the sum of the number of POS Sites
for which PAR provides both Help Desk Support and RMS Support pursuant to this
----
Agreement is [CONFIDENTIAL TREATMENT REQUESTED] the number of such Sites on the
Effective Date.
11.1.3 Notwithstanding Sections 11.1.1 (a) and 11.1.2 above, if Customer
satisfies the [CONFIDENTIAL TREATMENT REQUESTED] POS Site increase as of the
first day of the [CONFIDENTIAL TREATMENT REQUESTED] as set forth in Section
11.1.1 (a) above and the [CONFIDENTIAL TREATMENT REQUESTED] POS Site increase as
of the first day of the [CONFIDENTIAL TREATMENT REQUESTED] as set forth in
Section 11.1.2 above, above but Customer thereafter reduces the number of such
---
POS Sites then the [CONFIDENTIAL TREATMENT REQUESTED] and [CONFIDENTIAL
TREATMENT REQUESTED] prices set forth in Exhibit D shall be adjusted as follows:
(a) if at any time during the [CONFIDENTIAL TREATMENT REQUESTED] the number
of POS Sites described in Sections 11.1.1 (a) and 11.1.2 above should be
[CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the Effective
Date then all prices shall revert back to [CONFIDENTIAL TREATMENT REQUESTED]
pricing as set forth in Exhibit D for as long as the number of such POS Sites
remains [CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the
Effective Date;
(b) if at any time during the [CONFIDENTIAL TREATMENT REQUESTED] the number
of POS Sites described in Sections 11.1.1 (a) and 11.1.2 above should
[CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the Effective
Date but [CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the
Effective Date (hereinafter the "[CONFIDENTIAL TREATMENT REQUESTED] Pricing
Range") then all prices shall revert back to [CONFIDENTIAL TREATMENT REQUESTED]
pricing as set forth in Exhibit D for as long as the number of such POS Sites
remains within such [CONFIDENTIAL TREATMENT REQUESTED] Pricing Range; and
(c) if at any time during the [CONFIDENTIAL TREATMENT REQUESTED] the number
of POS Sites described in Sections 11.1.1(a) and 11.1.2 above should be
[CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the Effective
Date then all prices shall revert back to [CONFIDENTIAL TREATMENT REQUESTED]
pricing as set forth in Exhibit D for as long as the number of such POS Sites
remains [CONFIDENTIAL TREATMENT REQUESTED] the number of such POS Sites on the
Effective Date.
11.2 PAR will invoice Customer, in advance, for [CONFIDENTIAL TREATMENT
REQUESTED] Help Desk Support [i.e. [CONFIDENTIAL TREATMENT REQUESTED] of the
annual Help Desk Support Site fees set forth in Exhibit D to this Agreement] and
every
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
[CONFIDENTIAL TREATMENT REQUESTED] thereafter throughout the term of this
Agreement for each [CONFIDENTIAL TREATMENT REQUESTED] period or portion thereof.
11.3 For all Equipment installed in a Site defined in Section l.l (a) and for a
T.A.C.O. back-office personal computers installed in a Site defined in Section
1.1 (b) as of the Effective Date, [CONFIDENTIAL TREATMENT REQUESTED] of the
annual RMS Support fees set forth in Exhibit D hereto will be invoiced
[CONFIDENTIAL TREATMENT REQUESTED], in advance, by PAR on the Effective Date and
[CONFIDENTIAL TREATMENT REQUESTED] will be invoiced by PAR every [CONFIDENTIAL
TREATMENT REQUESTED] thereafter throughout the term of this Agreement for each
[CONFIDENTIAL TREATMENT REQUESTED] or [CONFIDENTIAL TREATMENT REQUESTED] the
Equipment or a comparable, eligible replacement is installed at such Site.
11.4 If Equipment is replaced by a comparable and eligible piece of Equipment
during the period for which RMS has been paid, the new Equipment will be covered
under the remaining period of the payment made for the replaced Equipment.
11.5 If Equipment for which RMS has been paid is removed or replaced by
noncomparable or non-eligible Equipment or other equipment, [CONFIDENTIAL
TREATMENT REQUESTED].
11.6 Notwithstanding any provision of this Agreement to the contrary, there
will be no refund or transfer of Help Desk Support or RMS Support fees paid
unless agreed to by the parties.
11.7 For Equipment which is installed and/or becomes eligible for service under
this Agreement during a calendar month subsequent to the [CONFIDENTIAL TREATMENT
REQUESTED] Day of that month, RMS Support and Help Desk Support fees will
commence as of the first day of the next month. For Equipment which is
installed and/or becomes eligible for service under this Agreement during a
calendar month prior to the [CONFIDENTIAL TREATMENT REQUESTED] Day of that
month, RMS and Help Desk fees will commence as the first Day of such month in
which the Equipment is installed and/or becomes eligible for service.
11.8 Payment is due and payable in full thirty (30) Days after the receipt of
invoice. Any amount payable by Customer that remains unpaid thirty (30) Days
after the due date shall be subject to interest on the unpaid amount at the rate
of twelve percent (12%) per annum.
11.9 Where time and material and uplift billings apply for work performed by
PAR for items set forth in Sections 8 & 9 of this Agreement and for work
performed in accordance with Subsections 3.7, 5.4 and 5.13 above the billings
shall be forwarded separately to Customer or franchisee/licensee, whichever is
applicable. PAR shall use its best efforts to obtain a signature
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
from a Site managerial employee on the PAR Incident Report acknowledging that
PAR has informed such employee that the services/work have been performed at an
additional charge. PAR shall use its best efforts to include the PAR Incident
Report or electronic record of the incident with such billings. PAR's failure to
include the PAR Incident Report or electronic record of the incident with the
billing shall not preclude payment by Customer nor shall it result in an
extension of the payment due date. If not included with the billing, PAR will
subsequently provide the PAR Incident Report or other substantiating
documentation upon receipt of a written request from Customer specifying the
associated invoice number(s) requested. If such PAR Incident Report or other
substantiating documentation is not received by Customer within [CONFIDENTIAL
TREATMENT REQUESTED] Days from PAR's receipt of Customer's request, PAR shall
issue a credit for such billing against the associated invoice.
11.10 The prices contained in Exhibit D hereto were calculated assuming that
the CPI Index for All Urban Consumers, All Items from [CONFIDENTIAL TREATMENT
REQUESTED] (hereinafter "CPI Period") would not increase by more than
[CONFIDENTIAL TREATMENT REQUESTED]%. If Customer extends this Agreement for a
[CONFIDENTIAL TREATMENT REQUESTED] and the CPI Index over the CPI Period
increases by more than [CONFIDENTIAL TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) then the applicable [CONFIDENTIAL TREATMENT REQUESTED]
prices shall be increased by that percentage in excess of [CONFIDENTIAL
TREATMENT REQUESTED] percent ([CONFIDENTIAL TREATMENT REQUESTED]%).
11.11 The prices contained in Exhibit D hereto were also calculated assuming a
general availability of all replacement parts throughout the term of the
Agreement and an actual reduction in the cost to PAR of such parts over the
term. If during the term of this Agreement, there is a decrease in the
availability of any replacement parts causing the cost of such replacement parts
to be significantly higher than the cost as of the Effective Date hereof, PAR
shall provide Customer with written notice of such change and Customer will
assist PAR in either identifying a lower cost supplier or a suitable substitute
for such parts. If Customer and PAR cannot identify a lower cost supplier or
find a suitable substitute within [CONFIDENTIAL TREATMENT REQUESTED] then PAR
reserves the right to increase its pricing for such replacement parts by an
amount equal to the actual increase in costs to PAR.
11.12 Upon written notification from Customer that Customer has transferred
ownership of a Site to another party, PAR will discontinue invoicing with the
next invoicing period. Customer is responsible for all fees through the date
PAR's Taco Bell Account/Program Manager receives written or electronic notice of
such change from Taco Bell in accordance with the notice provision set forth in
Section 15.19 herein. No credit will be provided for failure to provide timely
notice.
12. SITEBASE RETENTION
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
12.1 Customer shall ensure that the total number of POS Sites for which PAR
provides both Help Desk and RMS support (counting both Company-owned and
franchisee/licensee) is at least [CONFIDENTIAL TREATMENT REQUESTED] Sites
throughout the term of this Agreement. If the total number of POS Sites shall
at any time drop below this [CONFIDENTIAL TREATMENT REQUESTED] level then
Customer shall pay PAR [CONFIDENTIAL TREATMENT REQUESTED]. Any monies due PAR
pursuant to this Section 12.1, shall be divided evenly across all Customer owned
POS Sites and shall be included, as a separate line item, on PAR's monthly
invoices for such Sites.
12.2 Customer shall ensure that the total number of T.A.C.O. back-office Sites
for which PAR provides RMS support ("PC Sites") (counting both Customer owned
and franchisee/licensee) is at least [CONFIDENTIAL TREATMENT REQUESTED] Sites
throughout the term of this Agreement. If the total number of PC Sites shall at
any time drop below this [CONFIDENTIAL TREATMENT REQUESTED] level then Customer
shall pay PAR [CONFIDENTIAL TREATMENT REQUESTED]. Any monies due PAR pursuant
to this Section 12.2, shall be divided evenly across all PC Sites and shall be
included, as a separate line item, on PAR's monthly invoices for such Sites.
13. WARRANTY DISCLAIMER
13.1 EXCEPT AS EXPRESSLY STATED HEREIN, PAR MAKES NO WARRANTY
WITH RESPECT TO SERVICES OR PARTS PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE OR OF MERCHANTABILITY.
13.2 IN ADDITION, PAR DOES NOT ENSURE UNINTERRUPTED OR ERROR-FREE OPERATION OF
THE EQUIPMENT COVERED UNDER THIS AGREEMENT.
14. LIMITATION OF LIABILITY
14.1 IN NO EVENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, INDEMNITY, WARRANTY, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, THE LOSS OF ACTUAL OR ANTICIPATED REVENUE OR PROFITS, THE
LOSS OR CONTAMINATION OF DATA, THE LOSS OF THE ABILITY TO TRANSMIT OR USE DATA
OR EQUIPMENT, BUSINESS INTERRUPTION, DOWNTIME COSTS, LOSS OF ACTUAL OR
ANTICIPATED VALUE OF THE BUSINESS OF EITHER PARTY, OR DAMAGE TO THE BUSINESS
REPUTATION OF EITHER PARTY.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
14.2 NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY AND EXCEPT FOR CLAIMS
FOR PERSONAL INJURY OR DEATH AND EXCEPT FOR CLAIMS RESULTING FROM THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF PAR, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS,
IN NO EVENT SHALL PAR'S LIABILITY ON ANY CLAIM OF ANY KIND (INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE, CONTRACT, STRICT LIABILITY ETC.) FOR ANY LOSS OR DAMAGE
ARISING OUT OF OR IN ANY WAY RESULTING FROM THIS AGREEMENT, OR FROM THE
PERFORMANCE OR BREACH THEREOF, OR FROM THE MATERIAL OR SERVICES FURNISHED
HEREUNDER, SHALL IN NO CASE EXCEED [CONFIDENTIAL TREATMENT REQUESTED].
14.3 IN NO EVENT WILL PAR BE LIABLE FOR ANY DAMAGES OR EXPENSES CAUSED BY
CUSTOMER'S FAILURE TO PERFORM ITS RESPONSIBILITIES. PAR IS NOT LIABLE FOR LOSS
OF FUNDS CONTAINED IN, DISPENSED BY, OR ASSOCIATED WITH, ANY ITEM OF EQUIPMENT
OR ANY SITE.
14.4 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NO
DEFAULT, DELAY OR FAILURE TO PERFORM ON THE PART OF PAR SHALL BE CHARGEABLE
HEREUNDER IF SUCH IS DUE TO CAUSES BEYOND PAR'S REASONABLE CONTROL. IN THE
EVENT OF SUCH DEFAULT, DELAY OR FAILURE TO PERFORM, ANY DATES OR TIMES BY WHICH
PAR IS OTHERWISE SCHEDULED TO PERFORM SHALL BE EXTENDED AUTOMATICALLY FOR A
PERIOD OF TIME EQUAL IN DURATION TO THE ADDITIONAL TIME REQUIRED TO PERFORM.
15. GENERAL
15.1 Confidentiality. Any confidential information identified as such and
---------------
disclosed by either party to the other in the course of this Agreement shall be
subject to the terms of the Mutual Confidentiality Agreement between PAR and
Customer, dated as of the Effective Date, a copy of which is attached hereto as
Exhibit E, which confidentiality obligations shall survive expiration or
termination of this Agreement for a period of [CONFIDENTIAL TREATMENT REQUESTED]
from the date of such expiration or termination.
15.2 Indemnification for Third Party Claims. PAR agrees to indemnify and hold
--------------------------------------
Customer, its officers, directors, employees, agents, affiliates, subsidiaries,
parent company, successors and assigns harmless against any and all third party
claims, counterclaims, suits, demands, actions, causes of actions, damages,
setoffs, liens, attachments, debts, expenses, judgments, or other liabilities of
whatsoever kind or nature, including reasonable attorney's fees and costs,
arising from any alleged or actual negligent, willful, reckless, or wrongful act
or omission of PAR, its officers, directors, employees and agents in PAR's
performance under this Agreement or from any breach of PAR's representations and
warranties specifically set forth herein which resulted in
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATRERIAL THAT HAS BEEN OMITED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
personal injury, death or property damage to a third party. These obligations
shall survive the termination or expiration of the Agreement.
15.3 Insurance,. During the term of this Agreement, PAR shall maintain in full
----------
force and effect the kinds of insurance, containing the limits of liability set
forth below:
a. Workers' Compensation - The worker's compensation policy shall comply
with the workers' compensation law of the state in which the Services are
rendered and shall include employer's liability coverage for not less than
$1,000,000 per occurrence. Such policy shall provide coverage for all persons
engaged in the activities described in this Agreement under the employ,
supervision or control of PAR.
b. General Liability - The policy shall contain a combined single limit
of liability of not less that $1,000,000 per occurrence and a separate limit of
liability for products and completed operations of not less that $1,000,000 per
occurrence.
c. Automobile Liability - If automotive vehicles are operated by PAR in
its performance of its obligations under this Agreement, PAR shall maintain an
automobile liability policy which shall include coverage on all owned, non-owned
and hired vehicles and shall have a minimum limit of liability of not less than
$1,000,000 per occurrence.
Coverage shall be placed with an insurer having a Best's Key Rating of "A"
or better. Upon execution of the Agreement by both parties, PAR shall furnish
Customer with a Certificate of Insurance evidencing such coverages.
If any of the foregoing coverage expires, changes, or is cancelled, PAR
shall notify Customer within thirty (30) Days prior to the effective date of
such expiration, change or cancellation.
Should PAR fail to maintain the insurance coverage required hereunder and
not cure such within [CONFIDENTIAL TREATMENT REQUESTED] Days of its receipt of
written notice from Customer, Customer may terminate the Agreement immediately
upon its receipt of notice thereof, or Customer shall have the right, but not
the obligation, to purchase such insurance on PAR's behalf, and to deduct the
cost thereof from any amounts owed to PAR under the Agreement.
15.4 Qualifications of Personnel. PAR represents that it will ensure that its
---------------------------
employees and subcontractors are reasonably trained to perform the Help Desk and
RMS support required under this Agreement and have the ability to communicate
clearly in English with Customer personnel and to follow reasonable directions.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
15.5 Relationship of Parties. PAR is an independent contractor with respect to
-----------------------
its performance of its support services hereunder. Nothing contained herein
shall be deemed to create the relationship of partner, principal and agent, or
joint venturer between the parties. PAR has no right or authority to incur
obligations of any kind in the name of or for the account of Customer nor to
commit or bind Customer to any contract or other obligation.
15.6 Audit. PAR's Help Desk Support and RMS Support response and restoral
-----
records shall be maintained in a reasonable manner. PAR agrees that Customer
shall have the right, with notice, to audit all such records for a period of
[CONFIDENTIAL TREATMENT REQUESTED] beyond the term of the Agreement. Customer
shall bear the costs of such audits which shall be conducted during normal
business hours at PAR's service headquarters. PAR agrees to make available
reasonable copying capability and work space for Customer's representatives and
agrees to cooperate fully in all such audits.
15.7 Assignment. Neither party may assign its rights or obligations under the
-----------
Agreement without the prior written consent of the other party which may not be
unreasonably withheld or delayed.
15.7.1 Notwithstanding Section 15.7 above, in no event shall Customer assign
its rights or obligations under this Agreement to another party if such
assignment: (i) would require PAR to provide support to Sites other than the
Customer Sites contemplated herein (e.g. Taco Bell and Hot n' Now restaurants)
or (ii) was to a competitor of PAR. If consent is granted by PAR, this
Agreement shall, absent agreement between the parties, apply only to those Sites
covered by this Agreement as of the day prior to the date of such assignment.
Any attempt to assign any of the rights or delegate any of the obligations or
duties of this Agreement without PAR's prior written consent shall be null and
void.
15.8 Compliance with Laws. PAR shall obtain at its sole cost and expense all
---------------------
governmental permits and authorizations of whatever nature required for PAR's
performance of its obligations under the Agreement, and shall not violate any
law, statute, ordinance or governmental rule or regulation applicable to such
performance. PAR shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances and governmental rules, regulations and requirements
arising out of or relating to PAR's performance of its obligations under the
Agreement.
15.9 Consent. Whenever consent, approval, authorization or the like is
-------
required, the same shall not be unreasonably withheld or delayed.
15.10 Force Majeure. Neither party shall be liable for damages or Penalties
-------------
for its failure to perform due to contingencies beyond its reasonable control,
including, but not limited to, fire, storm, flood, earthquake, explosion,
accidents, public disorders, sabotage, lockouts, labor disputes, labor
shortages, strikes, riots, acts of God or if performance would necessitate the
violation of law or of a third party's intellectual property rights.
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
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<PAGE>
15.11 Governing Law. This Agreement, and all matters arising out of or
-------------
relating to this Agreement, shall be governed by the laws of the State of New
York, without regard to the conflict of laws provisions thereof.
15.12 Taxes. All charges due hereunder are exclusive of federal, state and
-----
local excise, sales, use and other taxes now or hereafter levied or imposed on
the services or replacement parts provided hereunder, or on this Agreement.
Except for taxes based on PAR's income, Customer shall be liable for and pay all
such taxes and other levies. Customer shall reimburse PAR in full for any and
all of the foregoing taxes or levies that are paid by PAR for which Customer is
responsible hereunder.
15.13 Subcontractors. The services to be provided by PAR under this Agreement
--------------
may be provided by the use of PAR selected independent subcontractors.
15.14 Modifications/Amendments. This Agreement may be modified or amended only
-------------------------
in a writing signed by a duly authorized representative of each party. No other
act, document, usage or custom shall be deemed to amend or modify this
Agreement.
15.15 Purchase Orders. The parties to this Agreement agree that any prior or
---------------
subsequent purchase order or other written notification from Customer shall be
of no effect to add to or vary the terms and conditions of this Agreement,
whether or not subsequently acknowledged by PAR.
15.16 Equipment Ownership. Customer warrants, with respect to the Equipment
-------------------
subject to or affected by this Agreement, that Customer is the owner of such
Equipment.
15.17 Personnel. Assignment of personnel to perform any services under this
---------
Agreement shall be within the sole discretion of PAR.
15.18 Limitation. Neither party may bring an action, regardless of form,
----------
arising out of this Agreement more than two (2) years after the cause of action
has accrued.
15.19 Notice. Notices required or allowed to be given hereunder shall be in
------
writing and shall be deemed to have been given when delivered by registered mail
or overnight courier to the following respective addresses:
If to PAR: PAR Microsystems Corporation
5757 Central Avenue
Boulder, CO 80301
Attention: Taco Bell Account/Program Manager
with a copy to:
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<PAGE>
PAR Microsystems Corporation
PAR Technology Park
8383 Seneca Turnpike
New Hartford, NY 13413-4991
Attention: Legal Department
If to Customer: Taco Bell Corp.
17901 Von Karman
Irvine, CA 92714-6212
Attention: Vice President Operations Services
with a copy to:
Taco Bell Corp.
17901 Von Karman
Irvine, CA 92714-6212
Attention: General Counsel
Addresses as such may be modified by like notice.
15.20 Unenforceable Provision. In the event any provision of this Agreement is
-----------------------
held to be invalid or unenforceable, the remaining provisions of this Agreement
will remain in full force and effect.
15.21 Waiver. No term or provision of this Agreement shall be deemed waived by
------
either party, and no breach excused by either party, unless such waiver or
consent shall be in writing signed by a duly authorized representative of the
other party. No consent by either party to, or waiver of, a breach by the other
party, whether express or implied, shall constitute a consent to, or waiver of,
or excuse for any other different or subsequent breach by the other party.
15.22 ADR: Disinterested Executives. In the event of a dispute (the "Issue"),
-----------------------------
PAR's VP Account Management and Customer's Vice President Operations Services
(hereinafter collectively referred to as "Project Manager(s)") will negotiate in
good faith on a regular basis to resolve the Issue. In the event such
negotiation extends more than thirty (30) Days and the Issue remains unresolved,
or a Project Manager states in writing to the other that he/she will not be able
to resolve the Issue through continued negotiation, the Project Managers will
refer the Issue to the Disinterested Executives (as hereinafter defined) of PAR
and Customer.
"Disinterested Executives" as used herein are senior level executives from a
separate business unit, division, subsidiary or affiliate of PAR and Customer,
respectively which are identified by the parties.
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<PAGE>
No later than thirty (30) Days from the date of such referral, the Project
Managers will each prepare in writing their own understanding of the Issue (the
"Issue Statement"). The Issue Statements will be submitted to both
Disinterested Executives no later than the expiration of the time period
referred to in the preceding sentence.
When the Issue Statements are received by the Disinterested Executives as
described above, they will negotiate in good faith on a regular basis to resolve
the issue(s) as expeditiously as feasible under the circumstances; provided,
however, such negotiation will extend no more than thirty (30) Days from the
date the Disinterested Executives receive the Issue Statements. Within thirty
(30) Days of the earlier of (i) the conclusion of the negotiation by the
Disinterested Executives or (ii) the expiration of the time period referred to
in the preceding sentence, the Disinterested Executives will submit a joint
written recommendation for any Issue the Disinterested Executives agreed upon
and separate written recommendations for any Issue the Disinterested Executives
disagreed upon or remain unresolved. PAR and Customer, agree to be bound by the
joint written recommendation.
15.23 ADR:Mediation. In the event that an Issue remains unresolved by the
-------------
Disinterested Executives as set forth in the preceding Section 15.22, it shall
be a condition precedent to either party's right to commence litigation that the
parties shall have participated in at least twenty (20) hours of mediation in
accordance with the Mediation Procedures of United States Arbitration &
Mediation, Inc. ("USA&M"). The parties agree to divide the costs of mediation
equally. The mediation will be administered by United States Arbitration &
Mediation of Upstate New York or such other appropriate office as may be
designated by USA&M's national office in Seattle, Washington.
15.24 Entire Agreement. This Agreement, including any agreements specifically
----------------
referenced herein or attachments and exhibits hereto, constitutes the complete
and entire agreement between the parties and supersedes all previous and
contemporaneous agreements, proposals, communications or representations,
written or oral, concerning the subject matter of this Agreement.
EACH PARTY WARRANTS THAT IT HAS FULL POWER AND AUTHORITY TO ENTER INTO AND
PERFORM THIS AGREEMENT, AND THE PERSON SIGNING THIS AGREEMENT ON SUCH PARTY'S
BEHALF HAS BEEN DULY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT.
EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT
AND AGREES TO BE BOUND BY IT.
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<PAGE>
Executed by Customer: Executed by PAR:
/s/ Fred Traverse [CONFIDENTIAL TREATMENT REQUESTED]
- ----------------------------- ----------------------------------
Signature Signature
Fred Traverse [CONFIDENTIAL TREATMENT REQUESTED
- ----------------------------- ----------------------------------
Printed Name Printed Name
Vice President - Operations Vice President
- ----------------------------- ----------------------------------
Title Title
Sept. 12, 1995 Sept. 12, 1995
- ----------------------------- ----------------------------------
Date
REVIEWED BY:
---------------------------
DATE: 9/2/95
-----------------------------
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 406.
-29-
