Terms and Conditions
MERCHANT AGREEMENT FOR RING UP BY NCR SILVER
Last Updated March 1, 2017
This Agreement between you and NCR Corporation or one of its designated affiliates (“NCR”) governs your use of Ring Up by NCR SilverTM (“Service”), the required payment card reader device (“Card Reader Device”) and the user application software and updates (“Software”) that NCR provides you in connection with the Service (together, “Products”) you purchase from NCR or from an authorized NCR reseller (“Reseller”). The additional terms stated in the attached Exhibit and at the NCR Silver web site where you registered and activated your subscription to the Service (“Web Site”), including the Merchant Billing Terms and Hardware Return and Refund Policy (“Billing Terms”), are incorporated by reference. If you purchase Products through a Reseller, then the pricing, invoicing and credit terms between you and the Reseller will apply to your financial obligations to the Reseller for the Products. Updates to this Agreement or any of the additional terms referenced above will be effective 30 days after they are published on the Web Site; you may elect not to accept an update by canceling your subscription to the Service.
1. The Service
1.1 Subject to your compliance with this Agreement and your timely meeting of the financial terms, including payment of the applicable subscription fees and charges stated on the Web Site or those you agreed to in writing with NCR or with a Reseller, NCR authorizes you to access the Service for your internal use on your own behalf and not for the benefit of any third party. This access right is non-exclusive and non-transferable and will end when this Agreement expires, is terminated or cancelled. NCR may cancel this Agreement and the Service in accordance with the terms set forth in the Billing Terms even if you purchase Products through a Reseller.
1.2 The Service will be available to you 24 hours per day via Internet access, other than for interruptions due to service maintenance and upgrades, system failure, system backup and recovery, and for causes beyond NCR’s control. In order to maintain reasonable production data storage requirements and to ensure proper performance of the Service, NCR may implement, in its sole discretion, limited data archival policies and procedures including periodic data purging of the hardware, software, or other systems NCR uses to provide the Service.
1.3 You are required to purchase at least one Card Reader Device from NCR in order to use with the Service; per unit pricing for the available Card Reader Devices is stated at the Web Site. Title and risk of loss to Card Reader Devices pass to you when NCR places them with a carrier for shipment to you, freight prepaid.
1.4 You will be required to provide and download and install the Software on your own mobile device (“Mobile Device”). The Software is licensed to you subject to any terms and conditions presented when you downloaded it from a source authorized by NCR or its licensors, as well as those contained in this Agreement. If there is a conflict, this Agreement will control. You are licensed to use the Software only with the Service, and your license will end when your subscription to the Service ends. The Software is copyrighted and licensed, not sold, and is NCR’s or its licensors confidential and unpublished information. You will retain any copyright notices and proprietary legends on all copies of the Software and the media on which it is delivered. Any attempt to transfer the Software is void and will automatically cause your license to end.
1.5 You are licensed to possess and use only the object code form of the Software. 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 other party. You may make one archival copy of the Software for backup purposes only. You may not reverse engineer the Software or derive a source code equivalent of it other than as authorized by statute. You are not licensed to use the Software in conjunction with software or hardware other than that authorized by NCR, and NCR does not warrant that the Service will be compatible with any Mobile Device. Use of any Mobile Device that has been modified contrary to the manufacturer’s specifications or guidelines, including modifications that disable hardware or software controls (e.g., “jailbreaking”), is expressly prohibited, and your use of such Mobile Device will entitle NCR to terminate this Agreement and your access to the Service immediately, without further obligation to you. Your license will automatically end if you fail to comply with any part of this Agreement. When your license ends, you will immediately stop using the Software and will destroy all copies unless NCR directs otherwise.
1.6 NCR or a Reseller may invite you to participate in a NCR managed controlled deployment program of new versions, features or functions NCR is testing in connection with the Products or other products prior to their general market availability (“Beta Products”). If you participate in a controlled deployment program, NCR or a Reseller will make the Beta Products available to you for a limited period of time for testing and evaluation purposes. Your participation in a controlled deployment program is voluntary, and while NCR may not charge you any fees to participate, you will be required to provide reasonable feedback concerning your use of the Beta Products, including errors, deficiencies, problems or recommendations to modify. All feedback you provide to NCR or the Reseller will be deemed Ideas (as defined below). Beta Products are provided “as is” and without a warranty of any kind; NCR may suspend, limit, or cancel any controlled deployment program for any reason at any time without notice, and NCR will not be liable to you for damages of any kind related to your access or use of the Beta Products. The Service and the Software provided as part of the Beta Products will not be considered generally released or covered under the warranty described in Section 5 until you commence paying for a subscription to the Service with NCR or a Reseller. You acknowledge that any sales and inventory or other data that resides within the Service may not be accessible to you after the limited beta period ends.
1.7 NCR or a Reseller may invite you to or you may choose to submit comments or ideas about the Products, including without limitation about how to improve them or NCR’s other products (“Ideas”). By submitting any Idea, you acknowledge that your disclosure is gratuitous, unsolicited, and without restriction; that it will not place NCR under any fiduciary or other obligation; and that NCR or its licensors is free to use the Idea without any additional compensation to you, or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, NCR and its licensors do not waive any rights to use similar or related ideas previously known to either of them, or developed by their employees, or obtained from sources other than you.
2. NCR Responsibilities
2.1 Your subscription fee includes remote support via telephone, email, or live text or chat for the Service on the terms stated at the Web Site (you acknowledge that third party message and data rates may apply). If you purchased a maintenance plan for the Card Reader Device from NCR, if available, maintenance for the Card Reader Device will be provided by NCR on the terms stated at the Web Site for the duration of the applicable maintenance period provided that you are current on your maintenance payment obligations.
2.2 NCR will use commercially reasonable efforts to provide you with 7 days advance notice of any scheduled downtime that may impact your ability to use or access the Service and will notify you as soon as reasonably possible of any significant disabling of the Service for security reasons.
3. Your Responsibilities
3.1 You are responsible for installing and configuring the Service and the Products, including account set up, configuration settings, and establishing any payment processing or other services certified by NCR for use with the Service. You agree to comply with all applicable laws and regulations with respect to your access and use of the Service and the Products. You will provide NCR access to your Card Reader Device, Mobile Device, data, and relevant information as reasonably required to perform the Service. You acknowledge that NCR personnel may require, and you will provide, the ability to access and correct transaction or input data while the Service is being provided to you. NCR is not responsible for any damage caused by errors or omissions in any information, instructions, data or scripts you or a third party provides on your behalf in connection with the Service, or any actions NCR takes at your direction.
3.2 To use the Service, you must maintain Internet access at your own expense. NCR is not responsible for and does not warrant the performance of any internet service or other provider or its services, and you agree that NCR has no liability to you for such performance or services.
3.3 Title to hardware, software, systems, documentation, and other intellectual property NCR uses to provide the Service will remain with NCR or its licensors, unless otherwise agreed in writing. You will take reasonable actions to protect NCR’s intellectual property rights. You will use all reasonable efforts to prevent any unauthorized access to, or use of, the Service, the Software, or their documentation and you will promptly notify NCR if any such unauthorized access or use occurs.
4. Data and System Security
4.1.1 “Personal Data” means information or data relating to an identified or identifiable natural person that is subject to protection under applicable Data Protection Law; where a natural person includes your personnel that access and use the Service or the Software or customers you transact business with using the Service (“Users”).
4.1.2. “Customer Data” means information or data (which may include Personal Data) that you input and transfer to NCR for processing and that is collected, stored or maintained in the course of providing the Service or the Software. Customer Data expressly excludes any information or data that does not connect or associate you or any Users to or with such information or data.
4.1.3 “Data Protection Laws” means all laws and regulations that govern the access, use, disclosure, or protection of Personal Data to which a party is subject with respect to the Service or the Software.
4.1.4 “Data Subject” means the User to whom the Personal Data refers.
4.2 NCR has implemented physical, technical, and organizational measures designed to secure Personal Data from unauthorized access, use, alteration, or disclosure. NCR will: (a) maintain an appropriate level of physical security controls over its data center including, but not limited to, appropriate alarm systems, fire suppression, and access controls (including off-hour controls); (b) periodically test its systems for security breach vulnerabilities; (c) use commercially reasonable efforts to protect its systems from unauthorized access, including the use of firewall and data encryption technologies as applicable; and (d) maintain safety and physical security procedures with respect to its access and maintenance of Personal Data which are materially consistent with general industry practice. Notwithstanding the foregoing, you acknowledge that NCR cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Personal Data for improper purposes. NCR may disclose Personal Data to the extent compelled by process of law, provided that you are given advance written notice (unless providing such notice is prohibited by law or regulation).
4.3 Customer Data will remain your property. Except as otherwise provided in this Agreement, NCR will not disclose Customer Data to any third party without your consent, but you acknowledge that Customer Data and your Confidential Information may be subject to regulation and examination by auditors and regulatory agencies, and NCR may disclose it to them upon their request. NCR may retain, disclose, and use Transaction Data which it creates in the course of the Service and which may be based upon Customer Data. “Transaction Data” is anonymized or aggregated data which has had all personally identifiable information removed.
4.4 You acknowledge that Personal Data may be transferred or stored outside of the European Economic Area or the country where the User is located in order for NCR to provide the Service and Software, and to perform its other obligations under this Agreement. You are responsible for all Customer Data, including its legality, reliability, integrity, accuracy, and quality and your compliance with all applicable laws and regulations, including Data Protection Laws or other legal duties applicable to your possession, transmission, processing, or use of Customer Data, and you will implement appropriate measures to ensure compliance. Such compliance includes but is not limited to you: (a) ensuring that the relevant Data Subjects have been informed of, and have given their consent to, the transfer, processing and use of their Personal Information; (b) providing appropriate notifications and communications to the relevant Data Subjects; (c) and managing any complaints or access requests from Data Subjects. NCR will take steps designed to ensure that the Customer Data it collects is used for its intended purpose(s).
4.5 You acknowledge that it is your responsibility to secure and protect your network and information under the PCI Data Security Standard (“PCI-DSS”) and that you are responsible for your own PCI-DSS compliance. You will: (a) maintain an environment for your payment card processing activities which is compliant with the PCI-DSS or its successors; (b) not use the Service other than in compliance with the PCI-DSS; (c) promptly implement Service and Software updates provided by NCR; (d) not use any remote access application to access the Service except as authorized in writing by NCR; (e) securely delete previously stored information or data; and (f) employ recommended security measures on each Mobile Device and wireless, mobile data or other systems or networks you use in connection with the Service, including use of available encryption and password protection. You are strongly advised to engage the services of a Qualified Security Assessor approved by the PCI Security Standards Council (a “QSA”) to ensure that no payment card track data is present on your systems or network; determine your level of PCI-DSS compliance; assist you with your compliance obligations; and mitigate any issues that may arise.
4.6 You acknowledge that NCR does not control the transfer of data over telecommunications facilities, and that use of or connection to the Internet is inherently insecure and provides opportunity for unauthorized access by third parties. NCR will not be responsible for any delays, delivery failures, or any other loss, damage or corruption resulting from such transfer. NCR does not warrant that third party Internet sites will be accessible without interruption, will meet your requirements or expectations or those of any third party, or will be free from errors, defects, design flaws, or omissions. In the event of any loss, damage or corruption to any Customer Data, NCR will use commercially reasonable efforts to restore the lost, damaged or corrupted Customer Data from the latest back-up of such Customer Data maintained by NCR in accordance with the archiving procedure.
4.7 You acknowledge that it is your responsibility to maintain the security of your own systems, servers, and communications links, and to provide secure access to those systems and information, and for all data backup and recovery, including retention of any data, records or information required by law or regulation. You will follow NCR’s password security guidelines, and you will guard passwords against misuse. NCR may direct you to change the password to one that is more secure.
4.8 You will not use, nor will you permit any third party to use, the Service to upload, post, or otherwise transmit any data that: (a) is deceptive, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) is harmful to minors in any way; (c) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (d) infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party; (e) constitutes unsolicited or unauthorized advertising or promotional materials, including but not limited to junk mail, spam, chain letters, and pyramid schemes; (f) is designed to access or monitor any material or information on any NCR system using any manual process or robot, spider, scraper, or other automated means; (g) violates Data Protection Laws or other laws; or (h) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, impose an unreasonable or disproportionally large load on, or limit the functionality of any computer hardware or software, or telecommunications equipment. You will defend and hold NCR harmless from any claim or loss resulting from your failure to comply with this section.
4.9 With respect to any NCR computer system, network, or service, you agree not to: (a) impersonate any person or entity; (b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any data; (c) develop or deploy restricted access pages or hidden pages or images (i.e., those not linked from another accessible page); (d) interfere with or disrupt NCR websites, servers, systems, or networks; (e) violate any applicable law or regulation; (f) stalk or otherwise harass another; (g) use, or attempt to use, any system or account without the owner’s permission; or (h) interfere with, defeat, or circumvent any security function. You will defend and hold NCR harmless from any claim or loss resulting from your failure to comply with this section.
5.1 NCR warrants that the Service and Software will be materially as described in their published user documentation. Provided that you have timely paid all subscription and other fees due, NCR will promptly at its expense correct any Service or Software that fails to materially conform to this warranty. If NCR is unable reasonably to do so, as your sole remedy you may terminate the Service by giving written notice to NCR within 30 days after the nonconformance, and NCR will cease delivering the Service within 30 days after receiving your written notice. You will pay NCR for all Service actually provided through the termination date. Card Reader Devices are warranted against defects in manufacture for 30 days from the date of purchase, and NCR will replace or refund the purchase price for those that are nonconforming. Warranty claims must be submitted by you or a Reseller on your behalf in accordance with the terms stated at the Web Site. These are the sole and exclusive warranties made by NCR. 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 a Product will yield any particular business or financial results; that data, reports, or analysis will be accurate in all respects; that a Product will be free from all bugs and errors; or that a Product will operate without interruption.
5.2 You warrant that: (a) you are at least 18 years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name you identify when you register is your real name or the business name under which you sell goods and services; (d) any sales transaction you submit will represent a bona fide sale by you, will accurately describe the goods or services sold and delivered to a purchaser, and will be properly reported for tax (including sales and ad valorem tax) purposes; and (e) you will fulfill all your obligations to each customer for which you submit a transaction and will resolve any dispute or complaint directly with the customer.
- Infringement Claims
6.1 NCR will, at its expense, defend you against any IP Claim. NCR will also pay the damages, costs, and attorneys’ fees that are awarded against you in a final, non-appealable court judgment for the IP Claim, or required to be paid by you or on your behalf in a settlement of the IP Claim that NCR has agreed to in writing. As used in this Section 6, an “IP Claim” means a suit brought against you by a third party to the extent the suit alleges that your use of a purchased Product infringes a patent or copyright of the third party.
6.2 NCR’s obligations set forth in Section 6.1 are subject to you: (a) providing prompt written notice that the IP Claim has been threatened or brought, whichever is sooner (the “Claim Notice”); (b) providing NCR sole control of the defense and any appeal or settlement (at NCR’s discretion) of the IP Claim (collectively, “Defense or Settlement”); (c) cooperating with respect to the Defense or Settlement; (d) providing NCR with requested documentation and information relevant to the IP Claim or the Defense or Settlement; and (e) complying with all court orders. If your delay in providing the Claim Notice causes detriment to NCR with respect to the defense or resolution of the IP Claim, the obligations set forth in Section 6.1 will not apply to the IP Claim. Notwithstanding any other provision of this Agreement, NCR is not responsible for any fees (including attorneys’ fees), expenses, costs, judgments, or awards that are incurred prior to its receipt of the Claim Notice from you. NCR will have the sole right to select counsel. You may, at your sole expense, engage additional counsel of your choosing for purposes of conferring with NCR’s counsel.
6.3 The obligations set forth in Section 6.1 will not apply to an IP Claim if the alleged infringement is based on, caused by, or results from (a) NCR’s compliance with any of your designs, specifications, or instructions; (b) modification of the Product other than by NCR; (c) any product or service not provided by NCR to you; or (d) combination or use of the Product with any product or service not provided by NCR to you.
6.4 If an intellectual property infringement allegation is brought or threatened against a purchased Product, or NCR believes that such an allegation may be brought or threatened, NCR may obtain a license for the Product; modify the Product; or replace the Product with a product having substantially the same functionality. If NCR in its discretion determines that none of the foregoing is available on a reasonable basis, upon NCR’s written notice to you: (a) NCR may cease delivering the affected Products and refund any amount that you have pre-paid for any such Products not yet delivered; and (b) you will promptly return all of the affected Software or Card Reader Device to NCR, and NCR will refund the price you paid NCR for that Software or Card Reader Device, less depreciation on a 5 year straight-line basis.
6.5 This Section 6 sets forth NCR’s entire obligations and your exclusive remedies with respect to any IP Claim or any intellectual property infringement.
- Mutual Liability Limitations
7.1 Neither party will be liable to the other, whether in an action in contract, tort, product liability, strict liability, statute, law, equity, or otherwise arising under or related to this Agreement: for any indirect, incidental, consequential, special, or punitive damages; for loss of profits or revenue (other than in an action by NCR to recover amounts owed); or for loss of reputation, goodwill, time, opportunity, data or access to data. As used in this Section 7, a “party” includes a party to this Agreement and its affiliates, employees, agents, contractors, and suppliers when acting in that capacity with respect to the Products, and any persons or entities claiming by or through a party to this Agreement.
7.2 Neither party will be liable to the other for any amount greater than the cumulative purchase price, fees, and charges paid for the Card Reader Device at issue; or in the case of the Service or the Software, any amount greater than the total fees charged by NCR during the Preceding 12 months for the Service or the Software giving rise to the liability.
7.3 Sections 7.1 and 7.2 will not limit a party’s liability for bodily injury, including death, to the extent caused by its negligence or willful misconduct; or a party’s liability for violating the other party’s intellectual property rights; or a party’s obligation to defend, hold harmless, or indemnify the other party under Sections 4.8, 4.9 or 6, or as set forth in any Exhibit; or its liability for damages which cannot be excluded under applicable law or regulation.
7.4 Each clause and phrase of this Section 7 is separate from each other clause and phrase, and from the remedy limitations and exclusions elsewhere in this Agreement, and will apply notwithstanding any failure of essential purpose of a remedy, any termination of this Agreement, or severability of any clause or phrase in this Agreement.
- Third Party Products
8.1 Third party products provided to you by NCR for use with your subscription to the Service are subject to any terms provided by their supplier. Unless NCR specifically agrees otherwise in writing, you acknowledge and agree that such third party products are provided “as-is” without a warranty from NCR. Accordingly, NCR expressly disclaims all warranties of any nature with respect to any such third party Products, whether oral or written, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement of any third party rights.
8.2 Third party products and services may be advertised or made available to you for purchase directly from their supplier through the Web Site or by email or other electronic communications, including notifications made through the Service. Any representations or warranties that may be provided in connection with any such third party products or services are provided solely by their supplier. NCR will not be responsible for any of your dealings or interactions with any of those third party suppliers.
9.1 “Confidential Information” is proprietary information disclosed by one party to the other related to the disclosing party, this Agreement, or the Products. In addition, business plans, pricing information, software in human-readable form, and any other information that, by its nature or on its face, reasonably should be understood by the receiving party to be confidential will be considered Confidential Information whether or not it is so marked. Otherwise, Confidential Information disclosed in documents or other tangible form must be clearly marked as confidential at the time of disclosure, and Confidential Information disclosed in oral or other intangible form must be identified as confidential at the time of disclosure.
9.2 Confidential Information does not include information that is or becomes available without restriction through no wrongful action or inaction.
9.3 All Confidential Information remains the disclosing party’s property. Upon the disclosing party’s request, all Confidential Information (other than materials that have been licensed to the recipient and with respect to which the recipient is in full compliance with its obligations) will be destroyed or returned to the disclosing party, less a single archival copy which may be used only to address disputes related to that Confidential Information.
9.4 Each party will use reasonable efforts to prevent the disclosure of the other’s Confidential Information to third parties and its employees who do not have a need to know, but may disclose Confidential Information to the extent compelled by process of law, provided that the disclosing party is given advance written notice (unless providing such notice is prohibited by law). Confidentiality obligations under this Agreement with respect to business plans, pricing information and software in human-readable form will continue indefinitely. Otherwise, confidentiality obligations under this Agreement will end 3 years after the date of disclosure. Protection of Personal Data is set forth in Section 6.
9.5 Either party may disclose Confidential Information to its accountants, lawyers, and other professional advisors; and to its affiliates, consultants, and contractors who have a need to know it to further permitted use of the Service; provided that each agrees in writing to confidentiality obligations consistent with this Agreement, including its intellectual property and confidentiality provisions. The disclosing party is an intended third party beneficiary of any such agreement and will have the right to directly enforce it.
You agree that NCR may reference your execution of this Agreement and your status as a user of the Products and may use your logos in product literature, advertisements, articles, press releases, marketing literature, presentations, social media and the like.
- Governing Law; Disputes
11.1 The laws of the State of New York, U.S.A. govern this Agreement, and the relationships created by it, except for its laws regarding conflicts of law and arbitrability; the Federal Arbitration Act governs all issues of arbitrability. Neither party may bring a claim more than 2 years after the underlying cause of action first accrues.
11.2 Each party agrees to give the other prompt written notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon the election of either party, the parties will participate in a non-binding mediation before a mutually-agreed mediator. Any controversy, claim or dispute which is not resolved through the procedures set forth above within 60 days following the initial notice (or such longer period as the parties may agree) will be resolved by arbitration before a sole arbitrator who is an attorney, under the then-current Commercial Arbitration Rules of the American Arbitration Association. The duty and right to arbitrate will extend to any employee, officer, director, shareholder, agent, or affiliate, of a party to the extent that right or duty arises through a party or is related to this Agreement. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction. The arbitrator is directed to hear and decide potentially dispositive motions in advance of a hearing on the merits by applying the applicable law to undisputed facts and documents. The arbitration will be held in Atlanta, Georgia, U.S.A.. This Section 11.2, and the obligation to mediate and arbitrate, will not apply to claims for misuse or infringement of a party’s intellectual property or Confidential Information, or collection of sums owed to NCR under this Agreement. A party may at any time seek from a court of competent jurisdiction an injunction or other equitable relief in aid of arbitration. The arbitrator will not have authority to award punitive damages, non-compensatory damages, or any damages other than direct damages, nor have authority to award direct damages inconsistent with the limitations and exclusions set forth in this Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
- General Terms
12.1 Except for your obligation to make payments when due, neither party will be liable for failing to fulfill its obligations due to acts of God or government, civil commotion, military authority, war, riots, terrorism, strikes, fire, attacks on or through the Internet, or other causes beyond its reasonable control.
12.2 Except as permitted by this Section 12.2, neither party may assign this Agreement or its rights or obligations under it without the express consent of the other party. NCR may use affiliates, contractors or suppliers to act on its behalf (but doing so will not alter NCR’s obligations to you, and those parties will be bound to the same confidentiality obligations as NCR), and may assign this Agreement to an affiliate, or to an assignee or transferee upon NCR’s entry into a merger, consolidation or sale of assets transaction. In this Agreement, references to “NCR” include its employees, contractors, and agents.
12.3 The parties are independent contractors to one another. Employees of one will not be deemed to be or act as employees or representatives of the other. A party will not be responsible for compensating; providing insurance or benefits; making unemployment, Social Security, or Medicare contributions; or withholding taxes or other withholdings against earnings of the other’s employees or contractors. Except as expressly stated otherwise, no third party will be a beneficiary of this Agreement.
12.4 If any provision of this Agreement is held to be illegal, invalid, or unenforceable in whole or in part, it will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions will remain in full force and effect. Terms intended by the parties to survive termination of this Agreement will survive termination. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
EXHIBIT TO THE MERCHANT AGREEMENT FOR RING UP BY NCR SILVER
The following additional terms apply to the iOS version of the Software available for download in the App StoreSM, such terms control in the event of a conflict with the terms of the Agreement:
- Acknowledgement: The parties acknowledge that the Agreement is concluded between them, and not with Apple Inc. (“Apple”), and NCR, not Apple, is solely responsible for the Software and the content thereof.
- Scope of License: You are only permitted to use the Software on supported Apple mobile or hardware devices that you own or control as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Maintenance and Support: NCR is solely responsible for providing any maintenance and support services with respect to the Software as specified in the Agreement, or as required under applicable law. The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
- Warranty: NCR is solely responsible for any product warranties with respect to the Software in accordance with the terms of the Agreement. In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software to you (if you paid any for the Software); and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty with respect to the Software is NCR’s sole responsibility in accordance with the terms of the Agreement.
- Product Claims: The parties acknowledge that NCR, not Apple, is responsible for addressing any claims you or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights, NCR, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim in accordance with the terms of the Infringement Claims section of the Agreement.
- Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address: NCR Corporation, or its licensor, is the developer of the Software. Please direct any end-user questions, complaints or claims with respect to the Software to the NCR Silver Customer Care Team by mail at 4325 Alexander Drive, Alpharetta, Georgia 30022; by telephone at 1-877-270-3475; or by email to email@example.com.
- Third Party Beneficiary: The parties acknowledge and agree that with respect to the Software, Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
— End of Merchant Agreement for Ring Up by NCR Silver —
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