NCR SOFTWARE LICENSE AGREEMENT

Software Product: Netkey Client and Server Components

 

NOTICE: This Agreement governs your possession and use of the Software.
You accept its terms by opening this package or by using the Software.

 

1. The following terms apply regardless of any other agreement you have with NCR:

License Scope

The Software includes a Server component and Client components. It is licensed on a “per Client” basis. A Client is a self-service terminal or display device approved by NCR for which you have paid applicable license fees. Subject to the following paragraph and all the other terms of this Agreement, NCR grants you a personal and nonexclusive license to possess, install, and run (a) the Server Software on any number of physical or logical servers (including test servers), but only for use in controlling licensed Clients; and (b) the Client Software on any licensed Client.

You may not use the Server Software to control any device other than a licensed Client using provided Client components, and you may not use the Client Software with any other control program or system. You may use the Server Software only to control Clients which you own, operate, or manage. Each Client license authorizes use of the Software to control a specific Client unit and may not be transferred to any other unit.

License Fees and Duration

You will pay the fee stated on the order document for each Client. You may add additional Clients at any time by placing an order and paying NCR’s then-current license fee. Your license is contingent on full payment of the amount stated in the order under which it was purchased (including any ongoing or periodic payments) and will be effective until terminated as provided below, or if applicable, the expiration date stated in the order.

General License Terms

The “Software” is the NCR software product (which may be in the form of firmware or other code embedded within hardware) identified above, along with any documentation or other licensed materials supplied with it. This Agreement also governs any Software updates or upgrades NCR may provide you. The Software is copyrighted and licensed, not sold, and is NCR’s confidential and unpublished information, or that of NCR’s licensors.

You may make one archival copy of the Software for backup purposes only. You are licensed to possess and use only the object code form of the Software. You may not take any steps to reverse engineer the Software or derive a source code equivalent of it other than as permitted by law. Except as this Agreement expressly permits, you may not (a) use, copy, modify, publish, or display the Software; or (b) disclose, rent, loan, or transfer it to any third party. You will retain any copyright notices and proprietary legends on all copies of the Software and the media on which it is delivered.

With NCR’s prior approval you may: (a) transfer Software installed on NCR hardware to a third party along with transfer of that hardware, but only if the third party accepts the terms of this Agreement and pays applicable NCR re-license fees; or (b) allow a service provider to use the Software solely for your benefit and within the scope of your license, subject to all the terms of this Agreement. Any other attempt to assign or transfer any of your rights, duties or obligations under this Agreement is prohibited and will automatically terminate your license to possess and use the Software. You are not licensed to use the Software, or any portion of it, in conjunction with software other than that provided or authorized by NCR. You may not export Software without first complying with any national and United States export laws and regulations.

Use of the Software for purposes other than as stated in the “Scope” section above (such as installation on different or additional hardware, or use on behalf of third parties) requires additional licenses from NCR and payment of additional fees. NCR may, at any time and upon reasonable notice, audit your use of the Software and if non-compliance is found, in addition to NCR’s other remedies at law or equity you will reimburse NCR for all reasonable expenses related to the audit. Your license will automatically end if you fail to comply with any term or condition of this Agreement. When your license ends, you will immediately stop using the Software and will destroy all copies unless NCR directs you to return them.

The Software may include components or functionality which NCR uses to assist it in providing support. These components or functionality are the confidential intellectual property of NCR. They are not licensed or transferred to you, and you are granted no rights with respect to them. They may not be accessed, copied, transferred, disclosed, or used by anyone other than NCR. NCR may install, update, change, or remove them at its discretion.

 

2. The following terms apply unless you have a continuing agreement (such as a “Master Agreement”) with NCR that covers them:

Limited Warranty

NCR warrants that for thirty days after delivery of the first copy to you, the Software will materially conform to its published specifications. If you give NCR written notice of nonconformity during the warranty period, NCR will correct or replace the Software at no charge to you. If NCR is unable to do so within a reasonable time, and you request a refund in writing within 30 days after your initial notice, NCR will refund the purchase price and your license to possess and use the Software will then terminate. THESE ARE NCR’S SOLE AND EXCLUSIVE WARRANTIES. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES OR WARRANTY REMEDIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED. NCR does not warrant that the Software will yield any particular business or financial results; will be free from all bugs and errors; or will operate without interruption. You are responsibile for selecting the Software to meet your requirements, and for its installation, use and results.

Limitation of Liability

IN NO EVENT WILL NCR OR ITS LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, FOR LOSS OF PROFITS OR REVENUE, OR LOSS OF TIME, OPPORTUNITY OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY OR OTHERWISE. NEITHER NCR NOR ITS LICENSORS WILL BE CUMULATIVELY LIABLE TO YOU FOR ANY AMOUNT GREATER THAN THE AMOUNT YOU PAID FOR THE SOFTWARE.

Infringement

NCR will defend, indemnify and hold you harmless from any third-party suit brought against you during the term of your license to the extent it alleges that the Software infringes a patent, copyright or trade secret, and NCR will pay all costs and damages finally awarded in connection with claims covered by this Section. If the alleged infringement is based on or caused by the Software used in modified form, or in connection or in combination with goods or services not furnished by NCR, the foregoing obligations will not apply. NCR may obtain, at no additional charge to you, the right for you to continue using the Software, or replace or modify it so that it becomes non-infringing. If NCR is unable reasonably to do so, and if you must discontinue use of infringing Software, then, in addition to providing the defense and indemnification set forth above NCR will also refund, on a five-year straight-line depreciation basis, the price paid to NCR for the infringing Software.

You must promptly notify NCR of the suit. If you do not, and the delay causes detriment to NCR or to the potential defense or resolution of the suit, then NCR will have no obligation under this Section. In no event will NCR be obligated for fees, expenses, judgments, or awards incurred prior to notice. You must give NCR sole control and authority, to be exercised in its sole discretion, to defend or settle the suit, as well as reasonably requested information and cooperation.

THIS SECTION STATES EACH PARTY’S SOLE AND EXCLUSIVE RIGHTS, REMEDIES, OBLIGATIONS, AND LIABILITIES TO THE OTHER, AND TO ANY PERSONS OR ENTITIES CLAIMING BY OR THROUGH THE OTHER, ARISING FROM OR RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

Dispute Resolution

Any controversy or claim arising out of this Agreement, regardless of the causes of action alleged, will be resolved by arbitration before a sole arbitrator in Atlanta, Georgia pursuant to the then-current Commercial Rules of the American Arbitration Association and the federal substantive and procedural law of arbitration. The arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction thereof, but may include only damages consistent with the limitations in this Agreement. Each party will bear its own attorney’s fees and costs related to the arbitration. The obligation to arbitrate will not apply to claims for misuse or infringement of a party’s intellectual property rights. Any claim or action must be brought within two years after the cause of action accrues. New York law governs this Agreement and the relationships created by it, except for its laws regarding conflicts of law.

Miscellaneous

In your possession, installation, and use of the Software and its data inputs and outputs, you are responsible for (a) obtaining necessary licenses, permits, or consents; (b) complying with any governmental or industry requirements; and (c) paying any fees, taxes, or other costs.

If any provision of this Agreement is held unenforceable, that provision will be modified to reflect the parties' intent and all remaining provisions will remain in full force and effect. Terms related to liability limitation, warranty disclaimers, dispute resolution, and confidentiality and other intellectual property rights (but excluding any license grants) will survive termination. Failure to enforce any provision will not waive future enforcement of that or any other provision.

This is the entire agreement between the parties regarding your possession and use of the Software, and supersedes any other prior oral or written understandings, agreements, or representations. Provisions on your purchase order forms or on NCR’s order forms, such as preprinted terms and conditions typically found on their reverse side, will not apply and are superseded in their entirety by this Agreement.

 

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