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EXHIBIT 10.9
ELECTRONIC COMMERCE AGREEMENT BETWEEN
THE UNIVERSITY OF MINNESOTA
AND
VIRTUAL TECHNOLOGY CORPORATION
d/b/a
NET DIRECT CORPORATION INTERNATIONAL
THIS AGREEMENT including all Exhibits attached hereto and incorporated
herein by reference (the "Agreement") is made as of the 4th day of January,
2000, by and between Virtual Technology Corporation d/b/a Net Direct
Corporation International, a corporation organized under Minnesota law
(hereinafter called "NDC"), and the Regents of the University of Minnesota
(hereinafter called "the University"). On a nonexclusive basis, the University
agrees to buy products and services from NDC and NDC agrees to provide or
supply products and services to the University on the following terms and
conditions specified herein.
INDUCEMENTS
WHEREAS, the University has submitted to NDC, and others, a Request for
Proposal issued on May 14, 1999, and referred to as #U110.19, which is
attached hereto and incorporated herein as Exhibit 2 (the "RFP") setting forth
certain terms and conditions, and certain information regarding (i) hardware,
software and services related to the implementation of an E-Commerce system as
well as sales of Computer Peripherals and other related Products throughout the
University's organization, (ii) the University's desire to add value and to
improve its capability for delivering business solutions through such an
E-Commerce environment, and (iii) certain technical requirements to fulfill the
present and future needs of the University over the period of this contract;
and
WHEREAS, based on the results of NDC's review and analysis of the RFP,
NDC has prepared and delivered to the University a Proposal dated June 4, 1999,
which is attached hereto and incorporated herein as Exhibit 1 (the "Proposal")
setting forth representations including conclusions, recommendations, and
benefits regarding the E-Commerce environment and the sale of suitable Products
of hardware, software, and services and other related Products required to
provide the University with certain capabilities as specified in the RFP's
requirements and specifications for ongoing operations; and to further provide
the University with the capability and flexibility sufficient to handle its
current and reasonable anticipated growth over the period of this contract; and
WHEREAS, on the basis of the representations contained in NDC's
proposal, presentations, other printed material, correspondence, discussions,
and in reliance upon the expertise of NDC in analyzing, designing, and
developing E-Commerce solutions for institutions such as the University, the
University desires to enter into a mutually beneficial relationship with NDC
under the terms and conditions hereinafter set forth in order to facilitate the
anticipated purchase by the University of certain Products and Services; and
NOW, THEREFORE, in consideration of the inducements, mutual covenants
and conditions herein contained, the parties agree as follows:
1.0 TERM OF AGREEMENT.
1.1. TERM. This Agreement shall become effective as of the day first
written above and shall expire on December 31, 2001, unless terminated earlier
as provided herein. This Agreement may be extended by either party for three
successive one-year terms by giving notice to the other party at least sixty
days prior to the end of the initial term or, as applicable, sixty days prior
to the end of each successive one-year term.
1.2. Termination for Convenience. The University may terminate this
Agreement for convenience in whole or with respect to particular products
offered by NDC herein; provided that notice is given by the University to NDC
at least (60) sixty days in advance - In full discharge of any obligations with
respect to this Agreement and such termination, the University shall pay NDC
for all orders accepted by the University prior to the effective date of
termination.
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1.3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The terms, provisions,
representations and warranties contained in this Agreement that by their sense
and context are intended to survive the performance thereof by either or both
parties hereunder shall so survive the completion of performance and
termination of this Agreement and any Order placed hereunder, including, but
not limited to, the making of any and all payments due hereunder, confidential
information, insurance, any rights and obligations conveyed by license and any
cause of action that accrued prior to said termination.
1.4. RIGHTS UPON ORDERLY TERMINATION. Upon termination or other
expiration of this, Agreement, or any license or Order made hereunder, each
party shall forthwith return to the other, or-, where applicable certify in
writing the destruction of, all papers, materials and properties of the other
held by such party and required to be returned by this Agreement or any license
or Order hereunder. In addition each party will assist the other party in
orderly termination of this Agreement or any Order and the transfer of all
aspects hereof, tangible and intangible, as may be necessary for the orderly,
nondisrupted business continuation of each party.
2.0 DEFINITIONS.
2.1 Acceptance Date. Acceptance date is the date on which the
University has received delivery of the complete Order and has inspected such
delivery for satisfactory and complete performance according to NDC's
specifications and the applicable order.
2.2 Component. A Component is any integral part of a "System", whether
hardware or software.
2.3 Delivery Date. Delivery Date is the date by which all items and
parts of the applicable Product(s) shall be delivered to the destination
specified in the Order.
2.4 Installation Date. The Installation Date is the date by which all
items or parts of the applicable Product(s) shall be installed and prepared for
Acceptance at the location specified in the Order.
2.5 ORDER. An Order is any written request for any Product or Service
issued on the University's Purchase Order pursuant to this Agreement.
2.6 Preinstalled Software. Preinstalled Software is commercial software
products sold by NDC as part of a system installed prior to shipment.
2.7 PRODUCT(S), Product is any Equipment, Software, Service,
communications hardware or software, or Supply Item offered by NDC; "Software"
includes any program, programming aid, routine translation, compiler,
diagnostic routine, Operating System Software or Application Software; "Supply
Item" includes any cards, paper, magnetic tape, compact discs, other magnetic
storage media, and similar items that are used or required to operate the
Products acquired by NDC or the University under this Agreement or any Order.
2.8 RELATED ORDER(S). Related Order(s) is any Order(s) that is related
to one or more other Order(s) where (i) either such Order specifies that the
two or more orders are so related; or (ii) either such order specifies that one
or more such Orders is conditioned or contingent upon the execution or
performance of the other Order(s); or (iii) the Order(s) is for Products that
are necessary to the reasonable or intended operation or use of any other
Product ordered by the University within thirty (30) days before or after the
date a University customer executes the other Order, or (iv) a change order
which alters the conditions or specifications of any Order.
2.9 Services. Services include any programming service, preventive
maintenance, remedial hardware maintenance, software maintenance, consulting
service, or support service or other service provided by NDC or its authorized
representatives to the University.
2.10 SPECIFICATIONS. Specifications are the information, which fully
describes the capabilities and functionality of the Product as set forth in any
material provided by NDC including the documentation and user's manuals
described herein.
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2.11 System. A System is any collection or aggregation of two (2) or
more components that is designed to function, or is represented by NDC as
functioning or being capable of functioning, as an entity.
3.0 GENERAL DESCRIPTION OF SCOPE OF SERVICES
3.1 APPLICABILITY. This agreement is applicable to the procurement by
the University in any University designated site of any Products and Services
that are available or will be made available during the term of this Agreement.
3.2 INTERRELATIONSHIP WITH ORDERS. This is a nonexclusive general
procurement agreement for electronic transfer of orders that contemplates the
future execution by NDC and the University of one (1) or more Orders. Each
Order shall contain the minimum information agreed upon by NDC and the
University and shall automatically be deemed to include, without the necessity
of reference or incorporation, all the terms and provisions of this Agreement.
All transactions between NDC and the University during any terms of this
Agreement shall be governed by this Agreement and any applicable Order;
provided that:
I. The parties may otherwise agree in writing executed by
authorized representatives of both of them; and
II. Whenever the provisions of an Order conflict with the
provisions of this Agreement, the provisions of the Order which have been
mutually agreed upon by the parties in writing and which are not pre-printed as
part of a form shall control and take precedence over the conflicting
provisions of this Agreement, but only for purposes of such Order and, except
for such Order, the terms and conditions of this Agreement shall not be deemed
to be amended, modified, canceled, or waived. Conflicting template provisions
belonging to either party shall be deemed deleted.
III. The University reserves the right to obtain any or all
Supply items from sources other than NDC without effect to Maintenance and
Performance Warranties, provided such supplies conform to manufacturer's
specifications.
3.3 Scope of Use. The scope of use by the University may be increased
under this Agreement to include additional groups such as student purchases,
staff purchases for personal use, or use by other entities. Reasonable advance
notice will be given to NDC by the University that the University desires to
increase the scope of use. Terms and conditions for any increase in scope will
be renegotiated as deemed necessary and by agreement of NDC and the University.
4.0 RELATIONSHIP BETWEEN THE UNIVERSITY AND NDC
4.1 NDC Visits to the University. NDC will, at NDC's expense, visit the
University's designated location no less than once quarterly. NDC personnel
will include, but not be limited to, product development specialists and/or
other such technical specialists as requested by the University.
4.2 University Visits to NDC. The University will, at its discretion
and expense, visit NDC facilities. NDC will make available, at NDC's expense,
technical specialists as determined by the University and NDC to discuss NDC's
technical strategic direction. Such visits would be subject to non-disclosure
provisions executed by the University in conformance with the Minnesota
Government Data Practices Act. Such visits may include NDC's development
laboratory so that the University, may participate in product development
discussions.
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4.3 NDC PERSONNEL REMOVAL FOR CAUSE. Certain individuals will have
access to the University's plans and confidential information as a requirement
for fulfilling their duties, and the University will become dependent on these
individuals for advice and expertise ("Key NDC Personnel") The University may
require NDC to immediately remove Key NDC Personnel from University projects
for the violation of the terms and conditions of this Agreement including the
violation of the University's policies, rules and regulations, violation of
Local, State, Federal or Municipal statutes, or where said individual is
engaged in activities that could be detrimental to the University or University
Personnel. The University's sole liability to NDC when NDC Personnel are
removed under the provisions of this paragraph will be for the payment of valid
invoices submitted to the University by NDC covering the period of time of the
University notifying NDC to remove said personnel.
4.4 No Effect on Warranty. The University's selection, use (or nonuse)
of its rights and remedies regarding Personnel shall not affect in any way NDCs
responsibilities, liabilities, or warranties under this Agreement."
4.5 SITE RULES AND REGULATIONS. NDC and its employees and agents, while
on the University's premises, shall comply with the University's site rules and
regulations.
4.6 PREFERENTIAL SCHEDULING. In determining the availability of a
Product or replacement Product, if necessary to meet the University's
requirements or replace damaged Product(s), NDC shall provide reasonable best
efforts to expedite and allocate to the University the next available Product
at NDC's facilities, superseding to the extent permitted by law all other
delivery commitments and schedules.
4.7 NEW TECHNOLOGY REPLACEMENT. The University and NDC recognize that
NDC will market new Products ("New Technology") that are designed to enhance or
replace Products provided for in this Agreement. To accommodate each party's
requirements, NDC agrees to include New Technology as part of its Product
offerings within the terms provided for in this Agreement. The University's
acquisition of New Technology will be included in any pricing discounts for
Product or Purchase volumes stated within this Agreement.
4.8 INDEPENDENT OBLIGATION OF NDC TO CONTINUE PERFORMANCE. Because of
the critical importance of the obligations undertaken by NDC hereunder to the
operations of the University and the substantial expertise (not otherwise
possessed by the University) which NDC has represented it will utilize in
connection with the fulfillment of its obligations and the reliance of the
University on such expertise for the fulfillment of its business processing,
NDC assumes an independent obligation to continue performance of its
obligations hereunder in all respects regardless of any dispute which may arise
between the University and NDC in connection with any claims by NDC that the
University has materially breached its obligations hereunder. Such independent
obligation shall continue for ninety (90) days from the date upon which the
University receives written notice of such alleged breach from NDC. NDC
undertakes this independent obligation without prejudice to any rights or
remedies it may otherwise have in connection with any dispute between NDC and
the University.
4.9 TRADE-IN OF PURCHASED EQUIPMENT. NDC will accept trade-ins of
previously purchased equipment with the purchase of new equipment. Trade-in
values, if any, will be determined by agreement between NDC and the
University.
4.10 TIME LINE FOR UNIVERSITY E-COMMERCE ENVIRONMENT AND CONTRACT
CONDITIONS - NDC WILL USE, best efforts to complete the following time line
projects in accordance with a mutually agreeable timeline:
4.10.1 Phase I is to be completed no later than thirty (30)
days following the execution of this Agreement and consists of the following:
Automatic notification (from University to NDQ of
approved purchase orders, with funds committed, for departmental computer sales.
This notification will inform NDC that release of the order from NDC's web site
is authorized and NDC should ship Order.
4.10.2 Phase II is to be completed not later than one hundred
and eighty (180) days following the execution of this Agreement and consists of
the following:
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1. Open Buying on the Internet (OBI) solution;
2. Automatic notification of NDC Shopping Cart
information to the University to feed the University's electronic purchase
order and approval system.
4.10.3 Phase III is to be completed no later than three
hundred and sixty five (365) days following the execution of this Agreement and
consists of the following:
Electronic funds Transfer (EFT) for invoice payment of
the E-Commerce purchases. Reasonable terms and conditions of EFT will be
negotiated by representatives of NDC and the University at such time as is
reasonable during the development of this Phase.
4.10.4 NDC will provide regular progress reports to the
University summarizing progress made under each Phase.
4.11 PRODUCT LISTING RIGHTS. NDC will regularly inform the University
of additions, deletions, and changes in products listed on their E-Commerce Web
page. The University will have the right to request additions, deletions and
changes of these listings necessary to maintain the integrity of products
supplied to the University. NDC, upon receipt of such request, will use best
efforts to fulfill these requests within forty-eight (48) hours or less.
Requests must be authorized by designated University personnel. For purposes of
this provision, the designated individual from the University is
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The University agrees to provide NDC notice of any change of its designated
individual.
4.12 Capacity. NDC will maintain capability within their system to
expeditiously handle the number of orders entered by the University community
throughout the term of this agreement.
4.13 UNIVERSITY COLLEGES. NDC will maintain the capability to customize
product availability to meet the needs of differing and specific colleges
within the University.
4.14 PRICE SPECIALS. Within the PARAMETERS APPROVED BY THE UNIVERSITY,
INCLUDING, BUT NOT, LIMITED to advance notice, NDC will roll-out SPECIAL
PRICING TO THE UNIVERSITY COMMUNITY VIA E-MAIL lists provided by the
University. The University retains the right to accept or reject products
offered as specials or promotions.
4.15 E-mail Lists. Under no circumstances, will NDC provide, sell, lend
or give E-mail lists supplied to NDC by the University to any other business,
entity, organization, group, persons or person.
4.16 Reports. NDC shall provide to the University quarterly reports
which will include but not be limited to total number of transactions under
this Agreement, total dollars in transactions, list of categories being
purchased, leading ten (10) products for each category including cost for each
Product or range of costs for each Product.
5.0 ORDER INFORMATION AND PROCEDURES
5.1 Order Information. Each Order hereunder shall be transmitted
electronically, using the Internet and such systems as developed between the
University and NDC. Each Order will contain at the least:
a. a complete list of the Products covered by the Order
specifying the quantity, type and model number, SKU number, and description for
each;
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b. University's price for each Product; any additional charges
and costs, including without limitation, non-standard services and special
features, the total amount payable by the University.
c. the location at which the Products shall be delivered
and, if different, the location at which the Products shall be initially
installed or used;
d. any non-standard site specifications for the Product;
e. the Delivery Date for the Products and, if applicable,
any interim delivery schedule;
f. if requested, the Installation Date for the Products;
g. the maintenance -,schedule for the Products, if
applicable;
h. any special terms and conditions agreed upon by NDC
and the University.
5.2 ORDER ACCEPTANCE. NDC agrees to notify the University (e-mail is
not considered a writing, for the purposes of timely communication under this
paragraph; fax notification, however, is considered a writing) if NDC does not
accept the Order as submitted by University within two (2) days of receipt of
order. NDC shall have the right to reject any Order for failure of the
University to: (i) provide all ordering information required by this Agreement
on said Order; or (ii) correctly state prices or other amounts on the Order; or
(iii) allow reasonable time for NDC to manufacture, ship, supply, or install
the Product requested in the statement of dates on the Order; or (iv) NDC
recognizes the Order will not function as described on the Order. If the Order
is not accepted, NDC shall detail in writing to the University its reasons for
such rejection and shall indicate the modifications necessary to make the Order
acceptable to NDC. Acceptance of any Order by NDC will bind NDC to honor dates,
amounts and other ordering information shown on the Order, including
supplemental provisions contained therein unless otherwise agreed upon.
5.3 EFFECTIVE DATE OF ORDER. The effective date of an Order shall be
the date upon which the Order is accepted by the later of NDC or the University
without modification or amendment.
5.4 UNIVERSITY ORDER AUTHORITY. Each Order placed hereunder shall be
considered authorized by the appropriate authority when transmitted
electronically to NDC. The University reserves the right to refuse delivery or
cancel an outstanding order, regardless of order cancellation terms stated in
this Agreement, if it is determined that NDC accepted an order outside the
process stated herein.
5.5 ORDER CANCELLATION. An Order for Products or Services may be
canceled under any of the following circumstances: (i) an Order for Equipment
may be canceled up to seven (7) days prior to its Delivery Date (ii)
University may cancel and terminate any Order for maintenance, support or
similar service at any time upon thirty (30) days, prior written notice to NDC
provided Service has not begun. Upon cancellation and termination by
University, University shall have no liability for any payments, costs or fees
accruing after the termination date; provided, however, that University shall
comply with its obligations, if any, relating to the return or redelivery of
the applicable Products to the University.
5.6 SHIPMENT. NDC WILL be responsible for payment to the shipper. Title
of all ordered products will be passed to the University upon delivery to
the exact address stated on the Order.
6.0 EQUIPMENT
6.1 NEW BUILD EQUIPMENT WARRANTY. NDC hereby represents and warrants to
University that unless specifically noted and agreed on the Order, as of the
Acceptance Date for any Equipment purchased by or provided to University
pursuant to this Agreement, such Equipment shall be: (i) new and of original
use; and (ii) not
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refurbished, reworked, rebuilt or repackaged. Notwithstanding the foregoing, NDC
may offer to the University such "specials" which may be in contradiction
thereof, with advance notice to the University as provided in 4.14.
6.2 MAINTENANCE TO BE PROVIDED. An order for maintenance may be
specified within the Order for equipment or issued as a separate, Related
Order. Such maintenance will maintain the stated equipment in good operating
condition.
6.3 ELECTRICAL POWER AND AIR CONDITIONING. Failure of electrical power
or air conditioning shall not be considered as cause to invalidate any
warranties by NDC, nor constitute University noncompliance with Product
Specifications.
7.0 PRODUCT RETURNS. The University and its customers shall be entitled to
return Products to NDC as follows:
7.1 Open Box. A nondefective Product in an opened box and which
conforms to the specifications of the Order is nonreturnable to NDC.
7.2 Unopened Sealed Box. A nondefective Product in an unopened
sealed box which conforms to the specifications of the Order may be returned
within 14 days of receipt, subject to a fifteen percent (15%) restocking fee
unless the order for such Product has been effectively canceled by the
University. under Section 5.5, in which case no re-stocking fee will be
charged. Return shipping of the Product to NDC is the responsibility of the
University and original shipping charges, if any, will not be refunded;
provided, however, that return shipping will be the responsibility of NDC and,
original shipping charges, if any, will be refunded, in the event the
University effectively canceled the order for such products under Section 5.5.
7.3 Defective/Non-Conforming Product. Any Product that is claimed
by the University or its customer to be defective or which does not conform to
the specifications of the Order may be returned within 14 days of receipt with
no restocking fee so long :; as the Product is actually defective or does not
conform to the specifications of the Order. Defective Products and/or Products
which do not conform to the Order will be replaced or the Order for such
product may be cancelled at the University or University customer's request .
Return shipping, of actually defective or non conforming Product to NDC within
said 14 day period is the responsibility of NDC. A call tag will be issued via
UPS to pick up the defective and/or non-conforminor Product. UPS will pick up
the defective Product at the address originally shipped to. NDC will inspect
Product that is claimed to be defective and or non-conformina upon arrival at
its warehouse. If the Product is found to be defective and/or non-c on forming,
the University's account will be appropriately credited within 14 days of
arrival of the returned Product to NDC's warehouse. If the Product is found not
to be defective or non-conforming, the University will be appropriately billed
for the return shipping and a 15% restocking; fee. In such event; original
shipping charges, if any, will not be refunded.
7.4 Return Procedure. In order to return a Product, the University or
its customer must contact a NDC customer service representative and obtain a
Return Merchandise Authorization number ("RMA#"). All returned product must
have an RMA# for it to be accepted. The University's account will be
appropriately credited within 14 days of arrival of the returned product in
NDC's warehouse.
8.0 WARRANTIES AND REPRESENTATIONS. The University and NDC recognize and agree
that NDC is not a Software or Product manufacturer or publisher and accordingly
offers no warranties on the quality or workmanship of Software or Products sold
to the University under this Agreement except for the warranties provided by
the Software or Product manufacturer or publisher and except as may be provided
in this Agreement.
8.1 COMPONENT AND CONFIGURATION WARRANTY.
8.1.1 COMPATIBILITY WARRANTY. Unless the applicable Order
specifically indicates otherwise, NDC warrants that all Products acquired
pursuant to an order shall be both data, program,
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and communications compatible to all other Products acquired pursuant to such
Order and to any Related order. NDC will review each University Order as to
completeness and will notify the University as to any inaccuracies or known
deficiencies or incompatibility with a Related Order.
8.1.2 CONFIGURATION WARRANTY. Unless the applicable Order
specifically indicates otherwise, NDC warrants that the product list for such
Order for a configuration of components, intended to work together as a system,
will be compatible, one Product with another. NDC will notify the University if
such Order is incomplete or contains incompatible components or peripherals.
8.2 ADDITIONAL COMMITMENTS AND WARRANTIES. Any written commitment by
NDC under the terms of any Order or of this Agreement shall be binding upon NDC
whether or not incorporated into said Order or this Agreement. For purposes of
this Agreement, a commitment by NDC shall include: (i) prices and options
committed by NDC or its agent to remain in force during the term of this
Agreement, (ii) any warranty or representation made by NDC or its agent in a
written proposal to the University as to Product performance, total System's
performance, or any other physical, design, or functional characteristics of
any equipment, Software, System, or other Product; (iii) any written warranty
or representation made by NDC or its agent concerning the characteristics or
items described in above, made in any literature, descriptions, drawings or
specifications accompanying or referred to in a proposal or presentation to the
University; and (iv) any modification of or affirmation or representation as to
any of the above which is made in writing by NDC or its agent in the course of
negotiations or during & term of this Agreement whether or not incorporated
into a formal amendment to the proposal; and (v) any representation by NDC or
its agent in a written proposal, in supporting documents or in negotiations
subsequent thereto as to training to be provided, services to be performed,
prices and options committed to remain in force over a fixed period of time, or
any other similar matter regardless of the fact that the duration of such
commitment may exceed the duration of this Agreement.
8.3 Warranty of Title. NDC warrants that it shall have, as of the date
of each order, as of the Delivery Date of each Product thereunder, and
throughout any applicable license term thereunder, including any renewals or
extensions thereof, free and clear title io, and the right to possess, use,
sell, transfer, or assign, license, or sub license, any and all Products that
are sold, licensed or otherwise provided to the University by NDC pursuant to
such Order. Except as permitted in this Agreement, or in an Order, NDC shall
not create or permit the creation of any lien, encumbrance, or security
interest in any Product licensed to the University, or sold to the University
and for which title has not yet passed to the University, without the prior
written consent of the University. Title to any Product purchased by the
University hereunder shall pass to the University upon delivery to the exact
address on the order for the applicable Product unless the Order specifies that
title shall pass to the University at some other time. Passing title to any
Product shall not constitute acceptance on the part of the University.
8.4 GOOD AND WORKMANLIKE MANNER. NDC warrants all services performed
under this Agreement pursuant to any extended service plan offered by NDC will
be performed in a good and workmanlike manner.
8.5 Warranty of Past Success. NDC warrants the Products have been
installed and are operational in a production capacity at similar user sites.
8.6 WARRANTY, OF SUPPLIER CAPABILITY. NDC warrants that it is
financially capable of fulfilling all requirements of this Agreement, that
there are no legal proceedings against it that could threaten performance of
this Agreement, that the Supplier is a validly organized entity to enter into
the agreement. Further, NDC is not prohibited by any supplier loan, contract,
financing arrangement, or any other such constraint from entering into this
Agreement.
8.7 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE OR
REFERENCED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
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8.8 WARRANTY OF SECURE E-COMMERCE ENVIRONMENT. NDC warrants that the
E-Commerce environment it maintains is secure and that it uses state of the art
technology for among other things: user and system authentication, fraud
prevention and detection, user privilege restriction, intellectual property
protection, privacy and confidentiality preservation, service continuation and
restoration, data integrity preservation, and information security management.
9.0 MAINTENANCE, SERVICE, AND SUPPORT OF PRODUCTS. NDC shall provide
service, and support for all Products provided under this Agreement.
10.0 SOFTWARE.
10.1 SOFTWARE TO BE PROVIDED. The terms and conditions of the
University's use of all Software provided by NDC under this Agreement shall
be as specified in this Agreement and in the applicable order. The University
shall receive a license (or where, applicable, an assignment of license) from
NDC providing for the University's use of such Software on terms and conditions
that are not inconsistent with this Agreement and the applicable Order. Each
Software Order and license shall be deemed to be a Related Order to the Order
or Orders that govern the acquisition by University of the Equipment for which
the Software is used.
10.2 Grant of License. NDC shall grant (or assign to) the University,
its agents, servants, contractors and assigns the right to utilize any Software
delivered by NDC during the term of this Agreement, on or in connection with
any CPU worldwide that is utilized by the University to fulfill the
University's data processing needs; provided such use does not exceed the scope
specified on the Order. The University shall have a perpetual, irrevocable
license for unlimited use of such Software.
10.3 Warranty. NDC warrants that, all Software supplied hereunder shall
conform to all published Software Specifications*and developer warranty.
11.0 UNIVERSITY'S COMPUTER REPAIR SERVICES
NDC acknowledges that the University's Computer Repair Services ("CRS")
is an authorized computer repair service provider for various Products to be
sold under this Agreement. NDC agrees to use best efforts to refer incoming
service calls from University customers regarding such products to CRS. Use of
CRS shall not be deemed to abrogate any warranties, representations, or
obligations of NDC under this Agreement.
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12. TRANSPORTATION AND DELIVERY.
12.1 SPECIAL DUTIES OF NDC. The Products shall be shipped UPS Ground
freight prepaid by NDC to the University's site, as indicated in the applicable
Order, it being expressly agreed that NDC will pay for all UPS Ground shipping
for Products under this Agreement. Expedited shipping services will incur
additional transportation charges to be prepaid and added to the invoice.. NDC
shall assume full responsibility for dealing with carriers to ensure delivery
of shipments, locate missing or late shipments, resolve billing for
transportation charges, and submit and resolve all insurance claims arising
form damage to its shipments. NDC shall be responsible for direct payment of
carrier invoices. Such Products shall be crated and packed in materials,
pursuant to procedures, meeting or exceeding the Product manufacturer's then
current standards for comparable components.
12.2 PAYMENT OF CHARGES. Subject to the provisions herein,
actual transportation charges on Products both from and to NDC's plant or
warehouse are to be prepaid by NDC. NDC will pay the cost of transportation for
products (i) shipped for mechanical replacement purposes; (ii) removed as a
result of Product failure, whether for convenience of NDC or pursuant to a
demand by the University as provided herein; or (iii) removed as a result of
default by NDC in any of its obligations under this Agreement or the Order.
12.3 DELIVERY. Supplier shall deliver all Products on the dates
and at the locations specified. All orders for delivery will be considered as
ordered for "Inside Delivery", and all orders will specify same. Handling,
shipping and unloading of the Products shall meet or exceed the manufacturer's
then current standards for comparable components. The NDC E-commerce Website
will state if Product is in stock. If Product is not in stock, the E-commerce
site will state the estimated delivery date.
12.4 STAGED DELIVERY AUTHORIZATION. Under staged orders, NDC may not
deliver any Product more than the (10) days prior to the specified Delivery
Date without receipt of written consent form University. The University and NDC
may mutually agree in writing to change any Delivery Date, in which event all
other dates listed in the Order shall remain unchanged unless specifically
adjusted by written agreement of NDC and the University. The University may, at
its discretion, designated an order or orders for staged delivery with
specified delivery dates. Such staged orders shall be managed by NDC
accordingly. The University may delay and Delivery Date for not more than
thirty (30) days by providing prior written notice to NDC not less than fifteen
(15) days prior to the Delivery Date provided the Order has not already been
shipped; if such delay stated herein, all other dates, including any
11
Installation Date, shall be delayed by an equivalent period, unless otherwise
agreed in writing by NDC and the University.
12.5 DELIVERY OF ALL ITEMS. No Product under any Order shall be deemed
to be "delivered" hereunder unless and until all Products including all items
necessary for the operation thereof required by the Order to be delivered by a
specified date have in fact been delivered as required in the Order.
12.6 NOTICE OF CHANGE OR DELAY. NDC shall notify the University in
writing in advance of any delay in delivery or change of delivery location when
such delay or change becomes apparent to NDC. Unless the University is so
notified and grants its written approval to NDC for such delay or change, the
University may, at its sole option, suspend or terminated the Order (s)
affected, and any Related order not yet shipped.
12.7 DELIVERY AND INSTALLATION DELAY REMEDIES. If any Product purchased
by the University pursuant to this Agreement is not delivered by the Delivery
Date specified or if installation is ordered, is not installed by the
Installation Date, the University may, at is sole discretion, either: (I)
cancel any Product that has not met the agreed upon Delivery or Installation
date without regard for delayed or back-ordered Products, and (ii) as an
alternative remedy for delayed or back-ordered Products, and not withstanding
the terms of the Agreement as to the University default rights, NDC may, upon
mutual agreement, temporarily install non-conforming Products of equal or
greater capabilities until the University order can be fulfilled as written.
NDC will pay all costs associated with the temporary installation including
transportation, installation, and any environmental requirements differing form
the originally ordered Products. Any costs associated with de-installation
and/or return of the canceled Product will be borne by NDC. The University's
right to cancel Products under this Paragraph shall not preclude the University
from enforcing any remedies that may be available to the University in this
Agreement.
13 SITE PREPARATION AND INSTALLATION.
13.1 INSTALLATION. For an additional charge as shown on Exhibit 3, when
the order specifies installation by NDC, if the University has prepared the
installation site to satisfy NDC's minimum specifications by the time specified
in the Order, NDC shall cause the applicable Products to be installed and
prepared for normal operation by the agreed upon Installation Date specified on
the Order. Unless otherwise indicated, NDC shall install and prepare the
Products for normal operation during the normal working hours of the NDC's
personnel at the University's site location. If the University requests that
installation or preparation of the Products occur during other hours, the
University shall reimburse NDC for any overtime, shift differential or similar
costs actually incurred by NDC in accommodating such request; provided,
however, that no additional charges shall be paid by the University if NDC must
provide overtime or multiple shift staffing in order to meet the agreed upon
applicable Installation Date hereunder. Normal Operation shall be understood to
mean that, Products are operating according to any written or published
specifications distributed by NDC.
13.2 Early Installation and Operation. If the Products are certified by
NDC to be ready for Installation and Operation prior to the agreed upon
Installation Date specified in the Order, the University at its option, may
elect to begin Operation and change the agreed upon Installation Date
accordingly.
13.3 Delay of Installation Date. At any time prior to the agreed upon
Installation Date specified in the Order, the University, by written
notification to NDC, may delay such date at no additional charge or penalty. If
any such delay occurs in the Installation Date for any product, all subsequent
dates specified for such Product and any related Product shall be delayed by an
equivalent period, unless otherwise specifically agreed in writing by the
University and NDC.
13.4 Installation of All Items. No Product shall be deemed to be
installed for purposes of this Agreement unless and until: (i) all Components
of the Product specified on the order have also been installed in accordance
with this Agreement; provided, however that the terms within this paragraph
shall not apply to any such items for which a subsequent agreed upon
Installation Date is specified; and (ii) any and all Products required by this
Agreement or the Order or any Related Order to be installed on or before the
same Installation Date have also been installed in accordance with this
Agreement.
13.5 NOTICE OF CHANGE OR DELAY. NDC shall provide the University with
written notice of the reasons for and anticipated duration of any delay in
installation within two (2) business day after such delay becomes known to NDC.
Neither the delivery of such notice by NDC nor the acceptance of such notice by
the University shall affect the University's rights or NDC's obligations
pursuant to this Agreement.
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14. INSURANCE AND RISK OF LOSS. NDC and the University agree to defend, hold
harmless and indemnify each other, their officers, agents and employees,
against all claims for loss or damage to property or injury or death to persons
arising from or connected with their performance of their obligations under
this agreement. NDC must provide and maintain during the contract period the
following insurance limits and types:
General Liability:
General Aggregate (Per Project) $2,000,000
Product/ Completed Operations $1,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage $50,000
Medical Expense $5,000
Automobile Liability:
Combined Single Limit $500,000
Umbrella Liability: N/A
Workers' Compensation: Statutory
Each Accident $100,000
Disease - Policy Limit $500,000
Disease - Each Employee $100,000
Errors and Omissions or Professional Liability insurance in an amount not less
than $1,000,000 Each Claim and $3,000,000 Each Occurrence if applicable.
Primary Additional Insured: Regents of the University of Minnesota
Notice of Cancellation: 60 days
Additional Comments: Certificate of Insurance must be provided with the above
limits and naming the "Regents of the University of Minnesota" as additional
insureds.
A certificate of insurance evidencing the foregoing coverages must be provided
prior to inception of the contract period, and renewals of coverages provided
by certificate prior to policy expiration. (Wherever feasible or indicated we
recommend $1,000,000 CSL (Combined Single Limit) per occurrence limits for
comprehensive general liability.)
In lieu of the Commercial General Liability Policy, NDC may maintain an Owner's
and Contractor's Protective Liability Insurance Policy.
15. CHARGES, INVOICES, PAYMENTS AND AUDITS
15.1 PRICING DISCOUNTS. The price NDC will charge the University for
Products and Services covered by this Agreement shall be on a "cost plus" basis
more fully described on the Pricing Matrix, shown on Exhibit 3, attached hereto
and made a part hereof.
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15.2. MARKETING AND PROMOTIONAL FEE. The University shall receive from
NDC at end of every three (3) months a marketing and promotional fee in an
amount equal to 2% of the gross amount of all Products and Services sold to
the University under this Agreement during the preceding three (3) month
period.
15.3 Charges. The University will determine the applicability of
charges by the following criteria: (i) no Product or Service shall be deemed to
be accepted by the University and the University shall have no obligation to
NDC for any payment unless and until the Product or Service has been delivered
and accepted by the University as fully operable; (ii) the University shall not
be billed or liable for any charges or expenses other than those charges or
expenses stated and expressly authorized in this Agreement or on an order;
(iii) unless otherwise specified in the applicable Order, charges payable by
the University pursuant to an Order shall apply and be calculated from the
Delivery Date for the applicable Product or 30 days following receipt of
invoice, whichever is later.
13.4 REDUCTION BEFORE SHIPMENT. If NDC's published price for any
Product is less than the price set forth in the University's order for the same
on Product's Ship Date, then the University shall have the benefit of the
lesser published price for such Product.
15 Increase of Price.
15.5.1 PRODUCTS. Unless otherwise agreed in writing by the
University, NDC shall not, increase the price of a Product once an Order has
been placed by the University or University customer.
15.5.2 SERVICES. Unless otherwise agreed in writing by the
university, NDC shall not during the effective term of this Agreement increase
the prices for any applicable services provided by NDC during any consecutive
twelve (12) month period by more than five percent (5%). Notwithstanding any
other term of this Agreement or any Order, the University may terminate any
Order on which NDC has notified the University of a Service price increase by
providing written notice of such termination to NDC up to thirty (30) days
after the University receives such notice.
15.6 INVOICING STANDARDS. NDC shall render one (1) copy of an invoice
not later than the month following the month for which the charges in the
invoice accrue. Provided that the amounts covered by the invoice are in fact
due and payable by the University hereunder, each invoice shall be paid within
thirty (30) days of receipt by the University, or within thirty (30) days of
receipt of product by the University, whichever is later. Invoices shall
differentiate the costs between tangible and non-tangible products on the
invoice, and include as a minimum: (i) type and description of Product; (ii)
purchase order number; (iii) basic charge for each Product; (iv) other charges
as applicable; (v) total charges; (vi) other detail required by the applicable
order, and (vii) serial numbers for all equipment that carries a serial number.
15.7 Delivery of Invoices. Invoices shall be delivered to the
University as instructed on the Order. The University does not have central
billing, so it is the responsibility of NDC to direct the invoices to the
ordering department within the University and it is the responsibility of the
University to include such address on each order.
15.8 CREDITS. Any credits due the University may be applied by the
University against NDC's invoices with appropriate information attached. Any
credits due the University that are not so applied against NDC's invoices for
any reason shall be paid to the University Department credited or refunded (at
the University's option) by NDC within thirty (30) days after NDC's receipt and
confirmation of the University's written request for such Payment. At no time
shall NDC credit a different department than the ordering department that
received the Credit. The University will not be responsible for having accepted
a credit made to other than the original Ordering department to which the
credit was applied.
15.9 The University may use the Products acquired hereunder for such
purposes and functions as may be necessary or convenient, and the University's
use of the Products shall not be restricted to any particular purpose or
function.
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16.0 RESOLUTIONS OF DISPUTES.
16.1 Resolution of Disputes of Invoices. If the University disputes any
amount on any NDC Invoice, the University and NDC agree to use all reasonable
efforts to resolve such dispute within five (5) days after the University
provides written notification of the dispute to NDC. Both parties agree to
provide full supporting documentation concerning any disputed amount or invoice
within five (5) days after written notification of the dispute. Provided that
one party furnishes written notification of the dispute to the other party
within thirty (30) days, neither party shall have any obligation, during the
sixty (60) day period specified above, to pay any amount that remains in
dispute.
16.2 Escalation. Disputes arising out of or relating to this Agreement
shall first be discussed by Buyer level personnel of NDC and the University.
Any dispute that cannot be resolved in ten (10) days at the Buyer level shall
then be discussed by the Vendor Performance Coordinator of the University and
by Director level by NDC. At such time the University's Vendor Performance
Program procedures will be followed.
17.0 INDEMNIFICATION.
17.1 Mutual Indemnification. Each party shall, at its sole expense,
indemnify and hold harmless the other, including its assigns and its officers,
directors, employees, agents, and servants from and against any and all direct
losses, damages, injuries, causes of action, claims, demands and expenses
(whether based upon tort, breach of contract, patent or copyright infringement,
failure to pay employee taxes or withholdings, failure to obtain workmen's
compensation insurance, or otherwise), including reasonable legal fees and
expenses, of any kind or nature arising directly out of or on account of, or
resulting from, any intentional or negligent act or omission of, or default in
the performance of its obligations pursuant to this Agreement or any Order. IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ATNTY TYPE OR NATURE.
17.2 Notice. Each party hereunder shall give the other party prompt
notice of any claim or liability hereby indemnified against by such other party
and thereupon such other party shall be entitled to control, and shall assume
full responsibility for, the defense of such matter. The indemnities contained
herein shall not be deemed to be a waiver of or in limitation of any other
rights either party may have, including but not limited to rights of indemnity
or contribution.
17.3 INTELLECTUAL PROPERTY INDEMNITY. NDC warrants that each Product
furnished by NDC hereunder, including without limitation each Component and
System and any unit or part thereof, and any software, will not infringe upon
or violate any patent, copyright, trade secret or any other proprietary right
of any third party or contain the confidential information of any third party.
If any claim by a third party against the University asserting or involving
patent, copyright, trade secret or proprietary right violation involving any
Product acquired by the University hereunder, NDC will defend, at its expense,
and will indemnify the University against any loss, cost, expense, or liability
arising out of such claim, whether or not such claim is successful; provided,
however that NDC is notified by the University in writing within a reasonable
time after the University first receives written notice of any such claim,
action, or allegation of infringement. NDC shall have no liability for
infringement to the extent that such claim is based on the use, license, or
sale of the Product in combination with other products (including software) not
furnished by NDC, use of the Product in a manner not allowed under any license
granted to the University, or modification of the Product by the University,
where without such combination, use or modification the claim would not have
arisen.
17.4 Use OF INFRINGING PRODUCTS. If an injunction or order shall be
obtained against the University's use of any such Product by reason of the
allegations, or if in NDC's opinion any such Product is likely to become a
subject of a claim of infringement or violation of a copyright, trade secret or
other proprietary right of a third party, NDC will, at its option and its
expense; (i) procure for the University the right to continue using the
Product; or (ii) replace or modify the same so that it becomes non-infringing
(which modification or replacement shall not adversely affect the applicable
specifications for, or the use or operation by the University of, the Product);
or (iii) if the Product is purchased, and the other options stated are not
practicable, repurchase the Product; or (iv) if the Product is licensed, and
the other options stated are not practicable, remove such Product from the
University's
15
site(s) and refund to the University any charges paid by the University, other
than charges for license payments for any actual period of use by the
University in excess of twenty-four (24) months, and release the University
from any further liability under the applicable Order or other agreement.
17.5 REMOVAL OF INFRINGING PRODUCTS DISCONTINUATION OF PAYMENTS. In no
event shall the University be liable to NDC for any license or maintenance
payments after the date, if any, THAT THE UNIVERSITY is no longer legally
permitted to use the Product because of such actual or claimed' infringement.
If removal or replacement of the PRODUCT IS REQUIRED OR UNDERTAKEN PURSUANT TO
THIS Agreement, NDC shall use reasonable care in the removal or modification
thereof and shall, at its own expense, restore the premises as nearly to their
original condition as is reasonably possible.
18.0 DEFAULTS AND REMEDIES.
18.1 DEFAULTS BY EITHER PARTY. The occurrence of any of the following
shall constitute a default:
18.1.1 Either party shall fail to pay when due any undisputed
amount due hereunder and such failure shall continue for a period of sixty (60)
days after written notice from one party to the other; or
18.1.2 Any representation or warranty made by either party in
this Agreement or any Order to which it is a party shall prove to have been
false or misleading in any material respect as of the date on or as of which
the same was made; or
18.1.3 Either party shall fail to perform or observe any
covenant, condition or agreement required by the Agreement or any Order to be
performed or observed by it and such failure continues for thirty (30) days
after written notice of one party to the other; or
18-1.4 If bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or other proceedings shall be
instituted by or against either party or all or any substantial part of its
property under any federal or state law, and such proceedings shall continue
for sixty (60) days.
18.2 REMEDIES OF EITHER PARTY. If a default by either party shall occur
and be continuing, the other party shall have the following remedies except as
set forth in Section 4. 8.
18.2.1 Terminate the applicable Order and, at their option,
any Related Order or Change Order and redeliver any and all such Products to
NDC, in the manner required by this Agreement or the Order for redelivery at
the end of the Product's term, except that such return shall be at sole expense
of the defaulting party; and
18.2.2 By written notice to the defaulting party declare the
applicable order covering the Product to be terminated, without prejudice to
either party's rights in respect to the obligations then accrued and remaining
unsatisfied; and
18.2.3 Exercise any other right or remedy that may be
available at law or in equity or in accordance with the Uniform Commercial
Code.
18.3 No Waiver. In no event shall the acceptance by the University, or
the application by NDC, of any license, maintenance, or other credit pursuant
to this Agreement or any Order be deemed to be a waiver by the University of
any of its rights under this Agreement or such Order or at law or in equity.
18.4 LIMITATION AND MITIGATION OF DAMAGES OF EITHER PARTY.
Notwithstanding any other provision of this Agreement:
18.4.1 OTHER RIGHTS. A default by one party under one (1) or
more Orders shall not affect the other party's rights under any one (1) or more
other Orders not in default or under this Agreement; and
18.4.2 TIME TO CURE. In addition to the time periods specified
herein, above, either party shall be permitted a period of thirty (30) days to
cure any default; provided, however, that if the defaulting party has
16
commenced the curing of any default, other than a default in the payment of
amounts due to be paid by one party to the other, within the thirty (30) day
period so provided and the defaulting party is diligently and continuously
pursuing the curing of such default, the thirty (30) day period shall be
extended to permit the defaulting party to complete the cure. This Time to Cure
clause does not alter Section 10.6 Notice of Change or Delay, which does not
include 30 days to cure a default in Delivery Date.
18.4.3 MITIGATE DAMAGES. Both parties shall in all events be
required to mitigate their damages. The University shall be entitled to receive
as a credit against such damages the reasonable salvage, resale, or release
value of the Products acquired by the University under the Order, and returned
to, repossessed by, sold, or otherwise disposed of by ND6.
18.4.4 Consequential Damages. In no event shall either party
be liable to the other for indirect, incidental, special, or consequential
damages arising out of this agreement for the existence, furnishing,
functioning, or the University's use of the work product, documentation or
tools provided by NDC. The foregoing limitation of liability shall not apply
to: (i) claims for damages in tort against either party; or (ii) claims for
damages for which NDC ha~ indemnified the University.
19.0 PROPRIETARY RIGHTS. Neither Party may advertise or promote using the name
or description of the other Party (including, but not limited to, disclosing
the existence of the Agreement), without in each instance the express written
consent of the other Party.
20.0 GENERAL PROVISIONS.
20.1 Disaster Recovery. If any Product acquired hereunder is rendered
inoperative as a result of a natural or other disaster or emergency (including
major Product failure or breakdown and peak load conditions), NDC will make all
reasonable efforts to supply or help locate back up or replacement Products. In
such event, NTDC agrees to waive any delivery schedule priorities, to the
extent reasonable or permitted by law, and, to the extent possible, to make the
replacement Product available from the manufacturing facility currently
producing such equipment or from inventory. Subject to this Agreement, the
price for any replacement Product provided by NDC will be in compliance with
this Agreement, plus shipment costs; provided, however, that if the
non-operation is due to the negligence or fault of NDC, replacement equipment
will be provided and delivered at no cost to the University. The University
shall retain the right to accept or reject any offer by NDC to supply any
emergency or backup Product or other equipment or service.
20.2 Notice. Any and all notices permitted or required to be given
hereunder shall be deemed duly given (i) upon actual delivery, if delivery is
by hand; or (ii) u on receipt by the transmitting party of confirmation of
receipt of a facsimile; or, (iii) upon delivery into the United States mail if
delivery is by postage paid registered or certified return receipt requested
mail. Each such notice shall be sent to the respective party at the address
indicated below or to any other address as the respective party may designate
by notice delivered pursuant to this Subparagraph or in any Order placed
hereunder:
If to NDC: IF TO THE UNIVERSITY:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Technology Buyer
NDC ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Suite 400 1300 South Second Street
Minneapolis, NfN 55416 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number (▇▇▇) ▇▇▇-▇▇▇▇ Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
20.3 NON-WAIVER. No term or provision of this Agreement or of any Order
shall be deemed waived and no breach shall be deemed excused unless such waiver
or consent shall be in writing and signed by the party claimed to
17
have waived or consented. No consent by any party to, or waiver of, a breach by
the other, whether express or implied, shall constitute a consent to, waiver
of, or excuse for any different or subsequent breach.
20.4 PARTIAL INVALIDITY. If any term or provision of this Agreement, or
of any Order shall be found to be illegal or unenforceable then,
notwithstanding such illegality or unenforceability, this Agreement, and each
applicable Order, shall remain in full force and effect and such term or
provision shall be deemed to be deleted.
20.5 PARAGRAPH HEADINGS. The Paragraph and Subparagraph headings used
in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
20.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20.7 SUBCONTRACTORS AND PARTNERS. NDC is responsible for the
performance of any subcontractors, partners or any other entity represented by
NDC in this Agreement.
20.8 ENTIRE AGREEMENT - This Agreement, with its attachments, taken
together with Orders and subordinate documents incorporated by reference in
such orders, constitutes the entire agreement between the parties with respect
to the subject matter contained herein and may only be modified by an amendment
executed in writing by both parties.
20.9 AMENDMENT. This Agreement shall not be modified, amended or in any
way altered except by an instrument in writing signed by Vice President level
personnel or their designees of the parties for that express purpose. All
amendments or modifications of this Agreement shall be binding upon the parties
despite any lack of consideration.
20.10 COMPLIANCE WITH LAW. NDC agrees that it will comply with the
provisions of all applicable federal, state, county, and local laws,
ordinances, regulations, and codes in the performance of this Agreement
including the procurement of permits and certificates where needed. NDC further
agrees to indemnify the University for any loss or damage that may be sustained
by reason of NDCs failure to comply with the aforementioned federal, state,
county, and local laws, ordinances, regulations, and codes.
20.11 GOVERNING LAW. The laws of the State of Minnesota shall govern
this Agreement and any action to enforce this Agreement shall be brought only
in Minnesota.
20.12 PUBLICITY. Neither party shall use the name, trademark, trade
name or other designation of the other party in any advertising, publicity or
other promotional activity without the prior express, written permission of the
other party.
20.13 Order of Precedence. In the event of conflict between this
Agreement, its exhibits, and any Orders the following order of precedence shall
prevail:
1. The order, providing any changes to this Agreement made through an
Order will only prevail for that Order and will not incur a change to this
Agreement, its Exhibits or other Orders for the term of this Agreement.
2. This Agreement and its Exhibits
3. The Request for Proposal
4. The Proposal
The parties have read this Agreement, understand it, and agree to be bound by
it.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date first above written.
VIRTUAL TECHNOLOGY CORPORATION
d1b/a NET DIRECT CORPORATION
INTERNATIONAL
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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THE UNIVERSITY OF MINNESOTA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its President
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January 20, 2000
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