Terms and Conditions for Software Licences by Wincor Nixdorf International GmbH
Version 1.0 (02/05)
1. Subject Matter of the Agreement
The Software (including drivers) is made available to the User free of charge. The User accepts hereby that the conditions of this Agreement shall be solely applicable to the licence of the Software and the legal relationship between the parties.
2. Intellectual property rights, rights to use
2.1 Wincor Nixdorf exclusively reserves all copyrights and intellectual property rights in the Software, unless they have been expressly assigned to the User by Wincor Nixdorf within this Agreement. Wincor Nixdorf grants to the User the non-exclusive right to permanently use the Software. The right to use entitles the User to use the Software on one terminal only.
2.2. The right to use granted to the User shall entitle him
- to load, transfer, run and store the programs within his own internal data processing facilities;
- to copy the programs for data backup and archiving purposes. However, only the mandatory essential backup copies may be stored;
- to enhance the Software platform (if any) with third party software via defined interfaces.
2.3 The User expressly pledges that he will:
- refrain from duplicating or transferring the Software to any third parties;
- from copying the right to use and transferring it to any third parties;
- perform only these modifications, translations, decompiling, disassembly or reverse engineering to the supplied programs, which are necessary for the use of the Software in accordance with this Agreement. Particularly no labels, trademarks or hints shall be removed;
- to solely copy the documentation provided for his own purposes within the scope of this Agreement;
- in the event of a complete transfer of his rights to use to a third party, to transfer only the right to use gained under this Agreement and also to impose all duties of this Agreement to the third party. The User shall give WN written notice of the transfer of rights without undue delay.
2.4 The parties hereto agree that the User shall grant Wincor Nixdorf, following prior written announcement, access to his business premises within his normal working hours so that the use of the programs and the documentation and the whereabouts of the created copies can be inspected. The inspection shall be conducted by an expert third party at the expense of Wincor Nixdorf. If the User has not observed the relevant clauses of this Agreement, the User shall be obliged to assume the costs of the inspection.
2.5 If and to the extent to which Open Source Software is part of the deliverables, Wincor Nixdorf does not assign any right of use of this kind of Software because Wincor Nixdorf is not entitled to assign such rights to third parties.
3. Assistance, Duties and Obligations
3.1 There will be no assistance with the installation of the software. Any services from WN, especially any support or advice to the use of the software is not governed in this Agreement and will only be granted on the basis of a separate agreement.
3.2 The User is expressly advised to back up any data on his computer regularly in sufficient intervals (as a rule once a week) as a duty to mitigate potential losses. Any liability of Wincor Nixdorf for damages caused by a violation of this duty is excluded.
3.3 The User shall test the Software without delay before using it and report all occurring or identifiable errors or system failures without delay to Wincor Nixdorf. The User shall endeavor, either by himself or through a qualified employee, to describe errors, faults and problems or the occurrence of system failures as precisely as possible to Wincor Nixdorf.
3.4 If, after conclusion of the Agreement, third parties assert claims for violations of intellectual or industrial property rights, e.g. copyrights, trademark rights or patent rights, (collectively referred to as third party rights) against the User, the User is obliged to notify Wincor Nixdorf of said claims by third parties without undue delay. The User is not entitled to acknowledge such violations without prior written consent of Wincor Nixdorf. He shall provide a reasonable amount of assistance to Wincor Nixdorf in defending such claims. If the User elects to terminate the use of the deliverables in question in order to mitigate losses or for other important reasons, he shall explicitly point out to the third party that such termination of use does not amount to any acknowledgement of third party rights nor represents admittance of any violation of such rights.
3.5 The Customer shall be obliged to observe the provisions of the Export Administration Act of the USA and any German or other applicable export regulations in exporting licenses.
As the Software is provided free of charge, any warranty for absence of defects in material or title or the fitness for purposes is excluded except for cases involving fraudulent concealment of deficiencies. Any information or documentation given in this Agreement, in marketing brochures, advertisings or in any public statement shall not be deemed to be a promise to the quality of the software and shall not amount to any warranty or guarantee.
THE SOFTWARE IS PROVEIDED AS IS WITHOUT ANY EXPLICIT OR IMPLIED WARRANTY OR GUARANTEE INCLUDING WARRANTIES OR GUARANTEES OF FITNESS FOR PURPOSES, ABSENCE OF THIRD PARTY RIGHTS, SATISFACTORY QUALITY OR THE SUITABILITY FOR CERTAIN PURPOSES. ESPECIALLY NO WARRANTY FOR ERROR-FREE FUNCTIONING ON THE SYSTEM OR ON THE COMPONENTS OF THE PARTICULAR HARDWARE-CONFIGURATION OF THE USER IS GIVEN.
5.1 This section exhaustively defines the liability of Wincor Nixdorf linked to this Agreement and to the Software made available.
5.2 As the right to use is granted free of charge, any liability of Wincor Nixdorf shall be excluded except for cases involving wilful misconduct or fraud.
5.3 If liability under section 5.2 the following limitations apply: Wincor Nixdorf shall be liable without limitation for damages resulting from injury to life, body or health. The same shall apply in case of damages caused by legal representatives or executive employees of Wincor Nixdorf. Liability for damages caused by vicarious agents shall be limited to the amount of contractual, foreseeable, typical damages.
5.4. Further claims for damages shall always be excluded.
In particular, any liability for indirect or consequential damages that arise as a result of the use of the software or are otherwise related to its use shall be excluded, especially the loss of anticipated profits on the part of the Customer, saved expenses and any other financial loss as well as punitive damages or damages arising due to the claims of Third persons.
5.5 Liability for fraudulent concealment of deficiencies, and the liability under product liability law shall remain unaffected by above provisions.
6.1 This contractual Agreement shall become effective as soon as the User accepts the conditions of this Agreement by clicking on the designated button.
6.2 This Software Licence Agreement shall be concluded for an infinite period of time. Each Party is entitled to terminate this Agreement for an important reason at any time without notice period. An important reason shall be inter alia any bankruptcy proceedings initiated to the assets of the User and accordingly if a bankruptcy petition is filed.
6.3 In case of Termination the right to use the Software expires. The right to use also instantly expires automatically in any case of violation of this Agreement.
6.4 In case of expiration of the right to use, the user shall be obliged to delete the software from his computer systems. The User shall also be obliged to destroy all copies including all (if any) modified versions of the software.
7. General provisions
7.1 If the Software is provided against payment under another separate contractual agreement an integral part of a non-gratuitous Agreement between Wincor Nixdorf and the User, the conditions concerning liability and warranty of that agreement shall apply if this Software is integral part of that agreement and is valuable consideration to the payment agreed in that agreement.
7.2 Any variation or amendment to this Agreement shall be of no effect unless confirmed in writing and signed by an authorised representative of each party. Any waiver of this written form requirement is valid only if it is in written form itself.
7.3 If any provision of this Agreement is or should become invalid the remainder of the terms and provisions of this Agreement shall remain in full force and effect. The invalid provision shall be substituted by a valid provision which economically most closely represents the intent and purpose of the invalid provision. The same shall apply in case of a gap in the Agreement.
7.4 Wincor Nixdorf shall be entitled to assign all rights and duties arising from this Agreement to any third person.
7.5 The law of the Federal Republic of Germany shall govern the contractual relationship. Neither the "Convention relating to a uniform law on the international sale of goods" nor the "United Nations Convention on Contracts for the international sale of goods" do apply. The place of jurisdiction shall be Paderborn, Federal Republic of Germany.
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