Terms & Conditions

NCR SILVER MERCHANT AGREEMENT

Last Updated 14 February 2018

This Agreement between you and NCR Australia Pty Ltd (“NCR”) governs your use of the NCR SilverTM Software as a Service suite of applications (“Service”), including the user application software as may be updated and any updated version that NCR provides to you in connection with your use of the Service (“Software”) and your purchase of any related hardware from NCR (“Hardware”) or from an authorised NCR reseller (“Reseller”) for use with the Service (together, “Products”). The additional terms stated in the attached Exhibits and at the NCR Silver web site where you registered and activated your subscription to the Service (“Web Site”) and the back office account administration portal NCR provides to you as part of the Service (“NCR Silver Account Portal”), including the Merchant Billing Terms and Hardware Return and Refund Policy as may be varied from time to time (“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 or the NCR Silver Account Portal; 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 authorises 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 (subject to clause 1.1) 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 retention policies and procedures including periodic data purging of the hardware, software, or other systems NCR uses to provide the Service.

 

1.3       NCR may update the Service at any time for performance, usability, security, or other reasons. Where circumstances reasonably permit, NCR will provide you prior written notice of changes that it deems likely to require substantial action on your part. At NCR’s request, you will provide reasonable access to your systems and personnel as required to implement changes. Updates to the Service may change user interfaces, features, procedures, configuration, and user documentation; utilising the Service following an update may require you to (i) download a new version or release of the relevant Software from the Apple App StoreSM, or (ii) upgrade or modify your systems at your own cost.

 

1.4       If you register for a free trial of the Service through the Web Site, NCR will make the Service available to you on a trial basis at no charge to you until the earlier of the end of the trial period stated on the Web Site, or the start date of your subscription to the Service. During the trial period the Service is provided (subject to applicable laws and clauses 7.1 to 7.3) on an “as is” basis and without an express warranty of fitness for purpose or acceptable quality; NCR may suspend, limit, or cancel the Service provided on a free trial basis for any reason at any time without notice; and (subject to applicable laws and clauses 7.1 to 7.3) NCR will not be liable to you for damages of any kind related to your access or use of the Service. Unless you subscribe to the Service before the end of the trial period, all of your sales and inventory or other data that resides within the Service will not be accessible to you after the trial period ends.

 

1.5       You may purchase available Hardware from NCR for use with the Service at the per unit pricing stated on the Web Site or the NCR Silver Account Portal. Title and Risk of loss to Hardware shall pass to you when NCR places it with a carrier for shipment to you, freight prepaid.

 

1.6       Depending on your Service configuration, and unless you purchase applicable Hardware from NCR, you will be required to provide your own mobile or hardware devices, servers or wireless network hardware (“Customer Provided Hardware”) and to download and install the relevant Software on such Customer Provided Hardware. The Software is licensed to you subject to any terms and conditions presented when you downloaded it from a source authorised by NCR, as well as those contained in this Agreement. If there is a conflict, the provisions in this Agreement will prevail. You are licensed to use the Software only with the Service, and your licence will end when your subscription to the Service ends. The Software is copyrighted and licensed, not sold, and is NCR’s confidential and unpublished information. You will retain any copyright notices and proprietary legends on all copies of the Software and any media on which it is delivered. Any attempt to transfer the Software is void and will automatically cause your licence and rights of use of the Service to end.

 

1.7         You are licensed to possess and use only the object code form of the Software. Except as this Agreement expressly permits and subject to applicable laws, you may not: (a) use, copy, modify, publish, or display the Software; or (b) disclose, rent, loan, or transfer it to any other person. 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 authorised by statute. You are not licensed to use the Software in conjunction with software or hardware other than that authorised by NCR, and NCR does not warrant that the Service will be compatible with any Customer Provided Hardware. Use of any Customer Provided Hardware 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 Customer Provided Hardware will entitle NCR to terminate this Agreement and your access to the Service immediately, without further obligation to you. Your licence will automatically end if you fail to comply with any part of this Agreement. When your licence ends, you will immediately stop using and uninstall the Software (as may be relevant) and will destroy all copies unless NCR directs otherwise.

 

1.8       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 (subject to applicable laws and clauses 7.1 to 7.3) on an “as is” basis and without an express warranty of any kind; NCR may suspend, limit, or cancel any controlled deployment program for any reason at any time without notice, and (subject to applicable laws and clauses 7.1 to 7.3) 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 clause 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.

 

1.9       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 our 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 is free to use the Ideas 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 does not waive any rights to use similar or related ideas previously known to NCR, or developed by its employees, or obtained from sources other than you.

 

  1. 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 on the Web Site or the NCR Silver Account Portal (you acknowledge that third party message and data rates may apply). If your subscription to the Service includes extended maintenance for the Hardware from NCR, maintenance for the Hardware will be provided by NCR subject to the terms of NCR’s Standard Hardware Warranty and Extended Maintenance Policy stated on the Web Site for the duration of the applicable Hardware maintenance period provided that you are current on your payment obligations for the Service. This obligation does not affect your statutory rights.

 

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.

 

  1. Your Responsibilities

 

3.1       You are responsible for installing and configuring, and using the Service, Software, and Hardware, including account set up and configuration settings (unless NCR provides remote support for any of the foregoing as part of your subscription to the Service), compliance with applicable laws and regulations, and establishing any payment processing or other services certified by NCR for use with the Service. You will provide NCR access to your network, system, 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. Subject to applicable laws, 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 provider, and you agree that NCR has no liability to you for such performance or third party Internet services.

 

3.3       Title to documentation, hardware, software and systems which reside at NCR’s data centre and other intellectual property NCR uses to provide the Service will remain with NCR or its licensors, unless otherwise agreed in writing (including as detailed in clause 1.5). You will take reasonable actions to protect and will not infringe NCR’s intellectual property rights. You will use all reasonable efforts to prevent any unauthorised access to, or use of, the Service, the Software, or their documentation and you will promptly notify NCR if any such unauthorised access or use occurs.

 

  1. Data and System Security

 

4.1       Definitions:

 

4.1.1    “Personal Data” has the meaning set forth in the Privacy Act 1988 (Cth).

 

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 person is subject with respect to the Service or the Software and includes the Privacy Act 1988 (Cth).

 

4.1.4    “Data Subject” means the User to whom the Personal Data refers or relates.

 

4.1.5    “User” means a natural person and includes your personnel that access and use the Service or the Software or customers you transact business with using the Service (as the case may be).

 

4.2       NCR complies with the Australian Privacy Principles and has implemented physical, technical, and organisational measures designed to secure Personal Data from unauthorised access, use, alteration, or disclosure. NCR will: (a) maintain an appropriate level of physical security controls over its data centre 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 unauthorised 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 unauthorised 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 relevant laws, 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 anonymised 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 Australia 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. This includes transfer to and/or storage of Personal Data in the United States of America. 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 express consent to, the transfer, processing and use of their Personal Data as contemplated by this Agreement; (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 authorised in writing by NCR; (e) securely delete previously stored information or data and otherwise comply with relevant Data Protection Laws; and (f) employ recommended security measures on Customer Provided Hardware 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 unauthorised access by third parties. Subject to applicable laws, 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 with respect to your use of the Service, 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, defamatory, 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 person; (e) constitutes unsolicited or unauthorised 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 agree to indemnify and keep NCR and its Resellers indemnified from any claim or loss it or its related bodies corporate or affiliates may suffer in connection with or resulting from your failure to comply with this clause 4.8.

 

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 agree to indemnify and keep NCR and its Resellers indemnified from any claim or loss it or its related bodies corporate or affiliates may suffer in connection with or resulting from your failure to comply with this clause 4.9.

 

  1. Warranties

 

5.1       NCR warrants to you that the Service and Software will be materially as described in its published user documentation. Provided that you have timely paid all subscription and other fees due and subject to clauses 7.1 to 7.3, NCR will promptly at its expense correct any Service or Software that fails to materially conform to this express warranty. If NCR is unable reasonably to do so, 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 goods and services actually provided up to and including the termination date. Hardware is expressly warranted against defects in manufacture for 30 days from the date of purchase. NCR will replace or refund the purchase price of non-conforming Hardware which does not conform to this express warranty against defects. Express warranty against defect claims must be submitted by you or a Reseller on your behalf in accordance with NCR’s Standard Hardware Warranty and Extended Maintenance Policy stated on the Web Site. These are the sole and exclusive express warranties against defects made by NCR.  Subject to clauses 7.1 to 7.3, 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       Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. To make a warranty against defects claim in respect of goods, you may contact the NCR Silver Customer Care Team:

 

(a)        by telephone at 261 811 403;

(b)       by email at customercare@ncrsilver.com.au; or

(c)        by post at NCR Australia Pty Ltd at Level 4, 8-20 Napier Street, North Sydney, NSW 2060,

 

or to request the correction, repair, replacement of or a refund in respect of any goods (including for these purposes the Software) you purchased or acquired from NCR for use with the Service.

If the relevant goods have breached a consumer guarantee or concern a valid warranty against defects claim, any shipping costs to return the goods to NCR will be at NCR’s cost.

5.3       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.

 

  1. Infringement Claims

 

6.1       NCR will, at its expense, defend you against any IP Claim. NCR will also pay the damages, costs, and solicitors’ 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 clause 6, an “IP Claim” means legal proceedings brought against you by a third party to the extent the claim 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 clause 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 defence and any appeal or settlement (at NCR’s discretion) of the IP Claim (collectively, “Defence or Settlement”); (c) cooperating with respect to the Defence or Settlement; (d) providing NCR with requested documentation and information relevant to the IP Claim or the Defence 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 defence or resolution of the IP Claim, the obligations set forth in clause 6.1 will not apply to the IP Claim. Notwithstanding any other provision of this Agreement, NCR is not responsible for any fees (including solicitors’ 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 the legal practitioner. You may, at your sole expense, engage an additional legal practitioner of your choosing for purposes of conferring with NCR’s legal practitioner.

 

6.3       The obligations set forth in clause 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 licence 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 Hardware to NCR, and NCR will refund the price you paid NCR for that Software or Hardware, less depreciation on a 5 year straight-line basis.

 

6.5       Subject to clauses 7.1 to 7.3, this clause 6 sets forth NCR’s entire obligations and your exclusive remedies with respect to any IP Claim or any intellectual property infringement.

 

  1. Statutory Rights and Mutual Liability Limitations

 

7.1       Certain provisions of the Competition and Consumer Act 2010 (Cth) (including, without limitation, the Australian Consumer Law (“ACL”)) provide consumers (as that expression is used in the ACL) and others with certain rights (collectively, the “consumer guarantees”) in relation to goods or services purchased by consumers.

 

7.2       Nothing in this Agreement excludes, restricts or modifies any condition, warranty, consumer guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified.

 

7.3       If clause 23 of the ACL applies to any provisions in this Agreement, any such provision(s) shall be void to the extent they are unfair within the meaning of clause 24 of the ACL.

 

7.4       Neither party will be liable to the other for any Consequential Loss.

 

As used in this Clause 7:

 

“party” includes a party to this Agreement and its affiliates, employees, agents, contractors, and suppliers or Resellers when acting in that capacity with respect to the Products, and any persons or entities claiming by or through a party to this Agreement;

 

“Consequential Loss” means any Losses suffered by a party to this Agreement as a result of a breach of this Agreement that cannot reasonably be considered to arise naturally from that breach. Each party agrees that loss of profits, revenue (excepting amounts due to NCR under it in relation to this Agreement), loss or corruption of or access to data, goodwill, bargain, opportunities, reputation, time and loss of anticipated savings and all other indirect, consequential and punitive Losses however and whenever occurring, will constitute Consequential Loss; and

 

“Losses” means all liabilities, losses, damages, costs and expenses, including: (a) legal costs and disbursements, whether incurred or awarded against a party, including costs of investigation, litigation, settlement and compliance with judgments; and (b) interest, fines and penalties, suffered or incurred by any person, whether arising at law, in equity, under contract or tort (including negligence) or under any statute or in relation to product liability.

 

7.5       NCR does not give any guarantee, indemnity or warranty or make any representation of any kind, express or implied, with respect to the supply by NCR of any goods or services in connection with this Agreement, except as expressly stated in this Agreement or by as contemplated by clauses 5 and 7.1 to 7.3 (as may be relevant).

 

7.6       Subject to clauses 7.1 to 7.4 and 7.7, the aggregate liability of NCR for breach of and all liabilities under, in respect of and in connection with, this Agreement as well as its duties at law and in equity (however arising) and whether in contract, tort (including without limitation negligence), under statute, under indemnities or on any other basis is limited to the cumulative purchase price, fees, and charges paid for the Hardware at issue; or in the case of the Service or the Software, the total fees charged by NCR during the preceding 12 months for the Service or the Software giving rise to the liability.  However, NCR’s liability with respect to a breach of the consumer guarantees is limited to.an amount equivalent to the value of the following remedy or amount:

 

(a)        in the case of goods – the replacement of the goods, the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; or

 

(b)       in the case of services – the supply of the services again or the payment of the cost of having the services supplied again.

 

7.7       Clauses 7.1 to 7.6 do not limit a party’s liability for bodily injury, including death, to the extent caused by its negligence or wilful 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 clauses 4.8, 4.9 or 6, or as set forth in any Exhibit.

 

7.8       Each clause and phrase of this clause 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.

 

  1. 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 and subject to clause 7, you acknowledge and agree that such third party products are provided “as-is” without a warranty from NCR. Accordingly, subject to clause 7, NCR expressly disclaims to the extent lawful 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 any implied warranties of merchantability, fitness for a particular purpose, and non-infringement of any third party rights. Any warranties or other rights will be governed by the terms of supply by that provider to you and relevant laws.

 

8.2       Third party products and services may be advertised or made available to you for purchase directly from the relevant supplier through the Web Site or by email or other electronic communications, including notifications made through the Service or the NCR Silver Account Portal. Any representations, statutory guarantees and/or warranties that may be provided or be applicable in connection with any such third party products or services are provided solely by the relevant supplier. NCR will not be responsible for any of your dealings or interactions with any of those third party suppliers.

 

  1. Confidentiality

 

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). Confidential Information may also be disclosed to the extent expressly permitted by this Agreement. 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 clause 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.

 

  1. Marketing

 

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.

 

  1. Governing Law and Disputes

 

11.1     The laws of New South Wales, Australia govern this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

 

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 must endeavour to settle any claim, controversy, or dispute in connection with this Agreement by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, email: infoaus@resolution.institute) or the Chair’s designated representative.

The Resolution Institute Mediation Rules shall apply to the mediation.

It is a condition precedent to the right of either party to commence arbitration or litigation (other than for interlocutory relief) that it has first offered to submit the dispute to mediation.

If the claim, controversy, dispute or difference is not settled within 60 days of referral to mediation (unless such period is extended by agreement of the parties), it shall be and is hereby submitted to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules. Notwithstanding the existence of a dispute or difference each party shall continue to perform this Agreement.

Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of the Resolution Institute.

This clause 11.2, and the obligations to mediate and arbitrate, will not apply to claims for misuse or infringement of a party’s intellectual property or Confidential Information, or in respect of a dispute, claim or controversy concerning an amount payable to NCR under this Agreement.

A party may at any time seek from a court of competent jurisdiction an injunction or other equitable relief.

 

  1. 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 clause 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.

 

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. The following clauses and provisions (or relevant parts mentioned by reference to subject-matter) shall survive termination or expiry of this Agreement: details of the parties; 1.1 (obligations to pay fees to NCR); 3.3 (NCR title); 4.2 (right to disclose Personal Data); 4.3 (title to and return of Customer Data); 4.6 (responsibility for delays, etc); 4.8 and 4.9 (indemnity); 6 (infringement claims); 7 (statutory rights and mutual liability limitations); 8 (third party products); 9 (confidential information); 11 (governing law and disputes); 12 (general); and any relevant or related provisions that have application to the clauses mentioned whether in any Exhibit to this Agreement or otherwise. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

 

EXHIBITS TO THE NCR SILVER MERCHANT AGREEMENT

 

The following additional terms apply to the iOS version of the relevant Software (meaning for purposes of this Exhibit the relevant NCR Silver or NCR Silver Pro Restaurant Edition App) available for download in the Apple App Store, such terms prevail in the event of a conflict with the terms of the main body of this Agreement:

 

  1. Acknowledgement: The parties acknowledge that this 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.

 

  1. Scope of Licence: 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.

 

  1. 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.

 

  1. Warranty: NCR is solely responsible for any product warranties with respect to the Software in accordance with the terms of this 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.
  2. 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.

 

  1. 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, defence, settlement and discharge of any such intellectual property infringement claim in accordance with the terms of the Infringement Claims clause of the main body of this Agreement.

 

  1. 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.

 

  1. Developer Name and Address: NCR Corporation located at 4325 Alexander Drive, Alpharetta, Georgia 30022, USA is the developer of the Software and an affiliate of NCR Australia Pty Ltd. Please direct any end-user questions, complaints or claims with respect to the Software to the NCR Silver Customer Care Team by mail addressed to NCR Australia Pty Ltd at Level 4, 8-20 Napier Street, North Sydney, NSW 2060; by telephone at 1800 874 895 Level 4, 8-20 Napier Street, North Sydney, NSW 2060; or by email to customercare@ncrsilver.com.au.

 

  1. 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 main body of this Agreement and solely to the extent enforceable under applicable law, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof with respect to the Software.

 

— End of NCR Silver Merchant Agreement —

 

NCR Australia Pty Ltd
Level 4, 8-20 Napier Street

North Sydney, NSW 2060