TERMS AND CONDITIONS
1. Scope. The following terms and conditions apply to this order, and are the complete statement of our agreement superseding all oral and written communications concerning it, except (a) as otherwise stated on the front of this Order (e.g., special license terms), (b) Software provided with a “shrink-wrap” or other such license is governed by those license terms instead of these terms and conditions, and (c) Products bearing the logo or copyright of another company are governed solely by any warranty or support terms included with those Products, and ATMRC does not warrant or support them. The Statement of Work (“SOW”, if any) is included in this Order, but these terms and conditions take precedence to the extent of any conflict with the SOW.
2. Prices and Payment. Product prices are ATMRC’s current prices unless otherwise agreed. Terms are Delivered Duty Paid to your “ship to” address, but you will reimburse ATMRC for all shipping, insurance, sales and use taxes, VAT, duties, and the like. ATMRC will invoice you for Equipment and Software – on shipment, for recurring Services, license fees, and rental – in advance; and for non-recurring Services, after ATMRC provides them. If ATMRC does not receive payment within 30 days of the invoice date, ATMRC reserves the rights (a) to charge interest rate on the late payments at one year sterling LIBOR accruing daily both before and after judgement and (b) on written notice to you of this default, to repossess Products and suspend Services without waiving ATMRC’s right to payment. ATMRC retains a purchase money security interest in each Product until you pay for it. You appoint ATMRC as your agent to sign and file a financing statement to perfect ATMRC’s interest.
3.1 Subject to your payment of all license fees, ATMRC grants you a perpetual, non-exclusive license to use the ordered Software (including software deliverables under an attached SOW), in object code only, at any one time only on a single processing unit of the class and model for which you originally licensed it. This license begins on delivery and terminates automatically if you violate this Section 3. On termination, you will immediately stop using the Software and either return or destroy all copies.
3.2 You may not: copy Software (except a single archival copy) or deliverables; transfer, disclose, sublicense or distribute them to any party; or use them other than as allowed by this Order. ATMRC will consent to your transfer of Software only to parties who sign ATMRC’s then-current Master Agreement or other license agreement and who pay any applicable fees. You will retain copyright notices and proprietary legends on all copies of Software you possess or transfer. ATMRC or its licensors retain ownership of all Software is a work made for hire. You will not take any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent of Software, except to the extent permitted by law.
3.3 You are not licensed to use any diagnostic tools that ATMRC may provide, and agree not to copy or use them or disclose them to any third party without ATMRC’s express written consent. ATMRC may delete or remove diagnostic tools at any time without notice. ATMRC PROVIDES NO WARRANTIES FOR DIAGNOSTIC TOOLS AND IS NOT LIABLE FOR THEIR USE BY ANY PERSON OTHER THAN ATMRC.
4. Warranties and Maintenance.
4.1 Equipment, Software, and Supplies warranties. For a period of 30 days after delivery, ATMRC warrants that Equipment, Software, and Supplies bearing NCR’s logo or copyright will be free from defects in material and manufacturing, and will materially conform to NCR’s published specifications in effect on the purchase date. The warranty for Software applies only to the first copy furnished to you. If you notify ATMRC during the warranty period of any material breach, ATMRC will at its option repair or replace the Product after return to ATMRC. If ATMRC does not succeed within a reasonable time, the defective Product would be refunded.
4.2 Professional Services warranties. ATMRC warrants that it will perform professional services consistent with industry standards and ATMRC policies and as described in any attached Statement of Work. If you promptly notify ATMRC of any material breach, ATMRC will re-perform the services. If ATMRC is still unsuccessful, ATMRC will refund the price less any reasonable amount for any value received.
4.3 Maintenance Services. Maintenance services have a one-year term that will automatically renew unless you or ATMRC terminate it at any time on 30 days advance written notice. During the term of maintenance service contract ATMRC will maintain the covered Products so they comply with the warranties in Section 4.1. Before accepting an order for maintenance services, ATMRC may inspect and refurbish at your expense any Products not under ATMRC maintenance or which anyone other than ATMRC has installed or serviced. ATMRC’s equipment warranty and maintenance services include parts and labour during covered hours, If ATMRC receives a substantial number of calls attributable to century date issues, the Customer recognises that this may have an effect on ATMRC’s ability to achieve any service levels that would otherwise apply. If ATMRC (notwithstanding that ATMRC has used all reasonable endeavours) fails to meet those service levels, ATMRC shall not be liable for such failure.
4.4 Exclusions. You are responsible for selecting and operating the Products, for providing back-up equipment and services, and for providing back-up equipment and services, and for safeguarding all programs, data and funds. ATMRC will charge separately for (a) supplies; (b) service calls for equipment that was in good operating condition at the time of the call; (c) use of specified types of equipment above designated levels; (c) Product problems attributable to alterations or non-certified attachments; (d) negligence, abuse or misuse, including failure to operate the Product in accordance with manufacturer’s specifications; (e) improper handling (except by ATMRC), (f) failure of equipment not maintained by ATMRC; (g) improper use of supplies; and (h) fire, water, acts of god or other catastrophic events.
4.5 Disclaimer. ATMRC disclaims all other warranties, express and implied. ATMRC does not warrant that products will operate uninterrupted or error free, or that all efficiencies, errors, defects or non-conformities will be correct. ATMRC has no warranty obligation for products that you acquire from third parties, even if ATMRC assisted in evaluating or selecting them, and the failure of such products or their suppliers will not affect your obligations to ATMRC. Your rights and remedies set forth in this Order are exclusive and in lieu of all other rights and remedies related to any Product.
5. Limitation of Liability. ATMRC is not liable for any indirect, incidental or consequential or punitive damages, or loss of profits, revenue or data, whether in an action in contract, tort, product liability, statute or otherwise, even if advised of the possibility of those damages. ATMRC will not be liable for direct damages caused by late delivery, product defect, or any other cause except as expressly provided in this order. ATMRC has set prices for its products and services on the allocation of risks set out in this order. ATMRC’s liability with respect to any Product will not exceed the amount that you paid ATMRC for it even if any term of this Order fails of its essential purpose, but notwithstanding any limitations in this Section 5, ATMRC will be liable without limit for bodily injury, including death, and liable up to a limit of £1 million for direct damages for physical damage to tangible property, to the extent ATMRC’s negligence caused that injury or damage. This Section will survive failure of an exclusive or limited remedy.
6. General. No waiver of any contract provision shall be deemed a waiver of future enforcement of that or any other provision. Neither party may assign this Order or its rights or obligations under it, except ATMRC may assign this Order to an affiliate and may use subcontractors to fulfil its obligations. Neither party is liable for failing to fulfil its obligations due to acts of God or other causes beyond reasonable control, except for your obligation to make payments. These terms and conditions supersede all previous conditions, understandings, commitments, agreements or representations whatsoever, whether oral or written, relating to the subject matter of this Order.This order shall be governed by and interpreted in accordance with Scottish Law and shall be subject to the exclusive jurisdiction of the Courts of Scotland.