NCR VOYIX Sales Order Terms and Conditions

1. Scope.

These terms and conditions apply to this Order, unless you have an effective NCR Voyix master agreement or other similar agreement, in which case those terms and conditions apply instead. This Order, together with these terms and conditions, is the complete statement of our agreement regarding the Products listed in this Order, superseding all oral and written communications concerning it. This Order is non-cancellable. “Products” mean software, cloud services, services, equipment, supplies, and deliverables provided by NCR Voyix to you under this Order.

2. Prices, Delivery, Invoices and Payment.

Product prices stated in this Order are applicable to this Order only. Prices do not include, and you will pay NCR Voyix for, all applicable shipping, insurance, installation and distribution charges, import duties, tariffs, transportation and fuel surcharges, and any sales, use, excise, withholding and like taxes (“Incidental Charges”). If payment is made at the time of placing the Order, then NCR Voyix will charge estimated Incidental Charges, which will be reconciled at the time of invoice through the same payment method. NCR Voyix may change its prices and rates at any time. If the Product is provided on a subscription or other recurring fee basis, fees are fixed for one year following the date of the applicable Order, and thereafter will be subject to annual adjustment by NCR Voyix. You are responsible for complying with NCR Voyix’s site preparation and other Product deployment guidelines. If NCR Voyix stores Products at your request, you will pay applicable storage fees. Title to Products (other than software and deliverables licensed to you) and risk of loss pass to you and delivery occurs when NCR Voyix has tendered the Products to: (a) the carrier for delivery to you or your agent; or (b) if you request NCR Voyix to store Products for you, the applicable storage facility. NCR Voyix will invoice you for equipment, software and supplies on delivery; in advance for recurring services and rental; and monthly for non-recurring services and deliverables. Payments are due upon your receipt of invoice. If NCR Voyix does not receive payment within 30 days of the invoice date, NCR Voyix reserves the rights to: (a) charge late fees of the lesser of 1.5% per month or the maximum allowed by law, (b) repossess the applicable Products, and (c) suspend services or other deliveries, without waiving NCR Voyix’s right to payment. NCR Voyix retains a purchase money security interest in each Product until you pay for it. You appoint NCR Voyix as your agent to sign and file a financing statement to perfect NCR Voyix’s interest.

3. Licenses and Intellectual Property.

3.1 Subject to payment of the applicable fees and your compliance with the terms of this Order, NCR Voyix grants you a non-exclusive, revocable, nontransferable, non-assignable, and limited license to use, in executable form only, the software listed and described in the Order (including software deliverables listed in an SOW), solely for your internal use, only during the term of the applicable Order, and as permitted by these terms and conditions. For software licensed on a perpetual basis, your right to use the software is based on a per device unit of measure, unless otherwise stated in the Order. This license terminates automatically if you violate this Section 3. On termination, you will immediately stop using the software and either return or destroy all copies. Software bearing the logo or copyright notice of a third party is subject to the third party’s license terms. You may not: copy software (except a single archival copy) or deliverables; transfer, assign, disclose, sublicense or distribute them to any party; or use them other than as allowed by this Order. NCR Voyix will consent to your transfer of software only to parties who sign NCR Voyix’s then-current order form 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. NCR Voyix or its licensors retain ownership of all software and deliverables. You will not take any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent of software. The terms of this Section 3 will apply to any fixes, patches, derivatives, updates, and upgrades which NCR Voyix may provide to you. You are not licensed to use any diagnostic tools that NCR Voyix may provide, and agree not to copy or use them, or disclose them to any third party without NCR Voyix’s express written consent. NCR Voyix may delete or remove diagnostic tools at any time without notice. DIAGNOSTIC TOOLS ARE PROVIDED “AS IS”.

3.2 All intellectual property rights in and to Products, NCR Voyix documentation, and other intellectual property used by NCR Voyix to provide the Products, and all releases, revisions, modifications, improvements, enhancements, extensions, or derivatives thereof or thereto, whether made by you or otherwise, are and will remain, or will be, owned by NCR Voyix or its licensors.

4. Equipment & Software Maintenance Services.

4.1 Maintenance services have an initial term as stated in this Order that will automatically renew for additional one year terms unless you or NCR Voyix provide written notice of non-renewal at least 90 days prior to the renewal date. NCR Voyix may change its prices and rates for time and material services at any time.

‍4.2 During the term of an equipment maintenance service contract, NCR Voyix will maintain covered NCR Voyix equipment to operate in accordance with its published specifications, and covered non-NCR Voyix equipment to operate substantially as it did at the time of original purchase, normal wear and tear excepted. NCR Voyix’s prepaid maintenance services include parts, and labor during covered hours. Within 90 days of accepting an Order for maintenance services, NCR Voyix may inspect and refurbish at your expense any covered equipment not then under NCR Voyix maintenance or which anyone other than NCR Voyix has installed or serviced. NCR Voyix is not obligated to provide software services for any supported software that has been altered other than by NCR Voyix or at NCR Voyix’s direction. The life of equipment is dependent on its installation environment and level of use. NCR Voyix may move equipment to “end of life” support status by providing at least one year notice. NCR Voyix will continue to maintain Equipment in end of life status on a best efforts basis, subject to the availability of parts, but that equipment will no longer be included in any service level commitment or performance guarantee.

‍4.3 Further, for equipment maintenance services, you will complete your responsibilities relating to the maintenance services as described in any attached SOW. You will provide NCR Voyix with a list of all equipment and locations to be supported hereunder as of the effective date. You are responsible for selecting and operating the equipment, for providing back-up equipment and services, and for safeguarding all programs and data, and removing, controlling, and reloading any funds contained in the equipment. You will provide NCR Voyix service personnel with safe and reasonable access, working space, and facilities. You will provide access to your networks, systems, data and relevant information, as necessary, to allow NCR Voyix to perform services. You will allocate appropriate resources and use all commercially reasonable efforts to avoid delay. If a unit of equipment has been in service for more than five years and incurs excessive service actions due to its age, operating environment, or level of use, NCR Voyix may request to perform a customer-chargeable overhaul to extend its useful life. If you are unwilling to pay for the overhaul, NCR Voyix may terminate Services with respect to that unit of equipment upon 90 days written notice.

‍4.4 During the term of a software maintenance contract, NCR Voyix will provide certain software maintenance and support services for software if designated on this Order. Software support may include correction of software problem and entitlement to certain software point releases and patch releases. A software problem is a reproducible and observable operating condition that causes the software not to function according to its then-current user-level documentation. NCR Voyix will accept a request for services through the NCR Voyix support web site, by e-mail, or by telephone, as instructed by NCR Voyix, during Monday to Friday 8am to 5pm US Eastern Time, excluding federally observed holidays. NCR Voyix and you will agree upon the criticality of the service request and NCR Voyix will use reasonable efforts to respond to your requests for services during this period based on target response times. If NCR Voyix’s investigation confirms the existence of the software problem, NCR Voyix will endeavor to correct it or to provide you an alternative, which may include implementing a temporary work-around or changes to the applicable documentation. A software problem will be deemed resolved 30 days after NCR Voyix provides a correction or alternative, unless you notify NCR Voyix within that time that it persists. Services beyond the scope described in this Order may be available either on a pre-paid or time and material basis at your request.

‍4.5 Further, for software maintenance services, you are responsible for providing a help desk to receive calls from your end users that is knowledgeable in procedures for diagnosing and solving system problems that are user-solvable, and will serve as the initial point of contact for service requests. Your help desk will at a minimum: (i) isolate the software problem from hardware or operational problems; (ii) offer potential resolutions to the person reporting the problem; (iii) ensure that a supported version of the software with all recommended patches is being used; and (iv) ensure that all end-user reports of difficulty are validated against the configuration guidelines before requesting service. If your help desk cannot resolve the software problem, you will report it to NCR Voyix with as much information as possible to effect an efficient resolution. You are responsible for (i) providing NCR Voyix with remote connectivity to the software; (ii) safeguarding all programs, data, and removable storage media before services begin and, if necessary, reinstalling programs and data; (iii) copying, distributing, and installing/de-installing each software release and maintaining master media at the latest release level; and (iv) testing any new functionality that may be included in a release. System administration, installation, and integration services, including backup and restoral of programs and data, are also your responsibility.

5. Warranties.

5.1 NCR Voyix warrants that equipment, software, deliverables and supplies bearing NCR Voyix’s logo or copyright will be free from defects in material and manufacturing, and will materially conform to NCR Voyix’s published specifications in effect on the purchase date, for 90 days after delivery (30 days for software, deliverables, and supplies). If during the warranty period you notify NCR Voyix of any material non-conformance, NCR Voyix will correct the non-conformity (through repair, replacement or otherwise) in accordance with its standard warranty service terms and this Order. If NCR Voyix does not succeed within a reasonable time, you may return the defective Product for a refund. Products that bear the logo or copyright of another company will be subject to that company's warranty and support terms and NCR Voyix will have no warranty or support obligations with respect to such Products.

‍5.2 NCR Voyix warrants that services will be provided by trained and experienced personnel in a professional manner consistent with industry standards and as described in any attached SOW. If you notify NCR Voyix within 30 days of the date of performance of any material non-conformance, NCR Voyix will reperform the services. If NCR Voyix is still unsuccessful, NCR Voyix will refund your payments to NCR Voyix for those services.

‍5.3 Equipment may include used or refurbished components, which are warranted to function equivalent to new. Problems not covered by NCR Voyix’s warranties include those resulting from: unauthorized alterations or attachments; negligence, abuse or misuse, including failure to operate the Product in accordance with specifications or interface requirements; failure of goods or services not obtained from NCR Voyix or not subject to a then-effective NCR Voyix warranty or maintenance agreement; improper handling, use or storage of supplies; and, fire, water, acts of God or other catastrophic events. NCR Voyix makes no warranty that data or analysis is correct or accurate or that a Product will yield any specific business result, even if an expected business result is identified elsewhere in this Order. NCR Voyix does not warrant that Products will operate uninterrupted or error free, or that all deficiencies, errors, defects or non-conformities will be corrected. EXCEPT AS OTHERWISE STATED HEREIN, THERE ARE NO WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Your rights and remedies set forth in this Order are exclusive and in lieu of all other rights and remedies related to any Product (except to the extent that applicable law prohibits agreements to disclaim warranties or limit liabilities).

6. Software as a Service (Cloud Services)

6.1 Subject to your compliance with this Order and payment of all fees, NCR Voyix authorizes you to access software as a service for the number of sites, users or transactions (as applicable) identified on this Order for your internal use and not for the benefit of any third party. This access right is non-exclusive and non-transferable and will end when the subscription expires, is terminated or cancelled. NCR Voyix may cancel the service automatically and without notice if you fail to comply with any term or condition of this Order or for convenience on thirty (30) days written notice. If NCR Voyix provides you with any software required to access or use the service, that software will be subject to license terms stated in this Order; no other licenses of any kind are provided to you. Upon termination, you will immediately disable all access to the services and return or destroy all copies of NCR Voyix-provided software used in conjunction with the services.

‍6.2 NCR Voyix uses commercially reasonable efforts to maintain service availability 24 hours a day, seven days a week, except for interruptions due to service maintenance and upgrades, system failure, system backup and recovery and for causes beyond NCR Voyix’s control. NCR Voyix may update the services at any time in its sole discretion for performance, usability, security, or other reasons, which may require you to upgrade or modify your equipment at your own cost.

‍6.3 You acknowledge that NCR Voyix does not control the transfer of data over telecommunications facilities and that the Internet is inherently insecure and provides opportunity for unauthorized access by third parties. You are responsible for maintaining the security of your own systems, servers, and communications links, and for providing secure access to those systems and information, including Personal Information (as defined below) that NCR Voyix requires to provide the Products to you. “Personal Information” means information relating to an identified or identifiable natural person to the extent treated as such under applicable law. You will: (a) not disclose Personal Information to NCR Voyix other than that which is reasonably required for NCR Voyix to provide access to the Products, and then only during the time period reasonably required; (b) have in place appropriate privacy and security safeguards to prevent the unauthorized use and disclosure of Personal Information; (c) guard against misuse of any password whether or not provided by NCR, and change any password upon NCR Voyix’s direction; (d) not transmit any data to NCR Voyix for processing for a purpose that does not comply with applicable law or regulations; and (e) provide reasonable cooperation to facilitate the parties’ compliance with applicable law and regulation. To the extent they may affect NCR Voyix’s use or disclosure of Personal Information, you will notify NCR Voyix in writing of any limitations or restrictions on the permitted use or disclosure of Personal Information; or any changes in, or revocation of, permission by a data subject to use or disclose Personal Information.

‍6.4 NCR Voyix may use and disclose transaction-related and system information: to provide the products, software, materials and services under this Order or another agreement between you and NCR Voyix; for product and service enhancements, as well as research and development purposes; and after it has been aggregated, for analytics, commercial, and benchmarking purposes.

‍6.5 You will not use, nor will you permit any third party to use, the service to upload, post, or otherwise transmit any Customer Content or 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 Voyix 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. “Customer Content” information (including data) and other content that you input, transmit or otherwise provide to NCR Voyix under or in connection with this Order, including in connection with your use of (including accessing) the Products.

7. Third Party Claims

7.1 This Section 7 addresses and applies to the following third party claims (“Third Party Claims”):

7.1.1 an “IP Claim”, which means a suit brought against you by a third party to the extent the suit alleges that your use of a Product infringes or misappropriates an intellectual property right (such as a patent, copyright, or trade secret right) of the third party (wherein, with respect to an IP Claim, you are the “Defended Party”, and NCR Voyix is the “Defending Party”); and

7.1.2 an “NCR Voyix Indemnity Claim”, which means a suit brought against NCR Voyix or any of its Affiliates by a third party to the extent the suit alleges that their use of Customer Content (including the storage or processing thereof) infringes or misappropriates an intellectual property right (such as a patent, copyright or trade secret right) of the third party or a breach of your responsibilities under Section 6.3 or Section 6.5 (wherein, with respect to an NCR Voyix Indemnity Claim, NCR Voyix is the “Defended Party”, and you are the “Defending Party”).

7.2 The Defending Party will: (a) at its expense, defend the Defended Party against any Third Party Claim; and (b) indemnify the Defended Party by paying the damages, costs, and attorneys’ fees for the Third Party Claim that are either (i) awarded against the Defended Party in a final, non-appealable court judgment for the Third Party Claim; or (ii) required to be paid by the Defended Party in a settlement of the Third Party Claim by the Defending Party.

7.3 The Defending Party’s obligations with respect to a Third Party Claim are subject to the Defended Party: (a) providing the Defending Party prompt written notice that the Third Party Claim has been threatened or brought, whichever is sooner (“Claim Notice”); (b) providing the Defending Party sole control of the defense and any appeal or settlement of the Third Party Claim (collectively, “Defense or Settlement”), where the decision to appeal or settle will be at the Defending Party’s sole discretion; (c) cooperating with the Defending Party with respect to the Defense or Settlement or otherwise with respect to the Third Party Claim (including providing relevant information, documentation, and materials, and making employees available); and (d) complying with all court orders. If the Defended Party’s delay in providing the Claim Notice causes detriment to the Defending Party with respect to the Defense or Settlement of the Third Party Claim, the obligations of the Defending Party with respect to the Third Party Claim will not apply to the extent of such detriment. Notwithstanding any other provision of this Agreement, the Defending Party is not responsible for any damages, expenses, costs, fees (including attorneys’ fees), judgments, or awards that are incurred, agreed to (including in conjunction with any settlement) or granted prior to its receipt of the Claim Notice. The Defending Party will have the sole right to select counsel. The Defended Party may, at its sole expense, engage additional counsel of its choosing for purposes of conferring with the Defending Party’s counsel.

7.4 The Defending Party’s obligations with respect to an IP Claim will not apply to the IP Claim if the alleged infringement or misappropriation is based on, caused by, or results from: (a) the Defending Party’s compliance with any of the Defended Party’s designs, specifications, or instructions; (b) modification of the Product other than by the Defending Party; (c) use of the Product other than as permitted by or in violation of this Agreement; (d) use of other than the latest version of the Product made available or provided by the Defending Party to the Defended Party; (e) combination or use of the Product with any product, service, or other item (including data) not provided by the Defending Party to the Defended Party; or (f) any claim for which the Defended Party is required to indemnify the Defending Party.

7.5 If an intellectual property infringement or misappropriation allegation is brought or threatened with respect to a Product (including against you with respect thereto), or NCR Voyix believes that such an allegation may be brought or threatened, NCR Voyix may: (a) obtain a license for the Product; (b) modify the Product; or (c) replace the Product with a product or service having substantially the same functionality. If NCR Voyix in its sole discretion determines that none of the foregoing is available on a reasonable basis, then upon notice from NCR Voyix (y) you will promptly cease using, and/or NCR Voyix may cease providing, licensing, and/or providing access to, the Product; and (z) NCR Voyix will (i) if the Product is not provided on a subscription or other recurring fee basis, refund the price paid under this Agreement by you to NCR Voyix for the Product, less depreciation on a five-year straight-line basis, or (ii) if the Product is provided on a subscription or other recurring fee basis, refund the unused portion of any prepaid fees paid under this Agreement by you to NCR Voyix for the Product. Immediately following such notice, you will promptly return the Product (and all copies thereof, including documentation, if any), to NCR Voyix, or at NCR Voyix’s written request you will destroy or dispose of the Product (and all copies thereof, including documentation, if any), with written confirmation to NCR Voyix by an authorized representative of you that such destruction or disposal has occurred.

7.6 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THIS SECTION 7 SETS FORTH EACH PARTY’S ENTIRE OBLIGATIONS, AND ITS EXCLUSIVE REMEDIES, WITH RESPECT TO THIRD PARTY CLAIMS, INCLUDING WITH RESPECT TO THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION (INCLUDING ANY IP CLAIM).

8. Limitation of Liability.

8.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, NEGLIGENCE, STATUTE, LAW, OR EQUITY, OR OTHERWISE, UNDER OR IN RELATION TO THIS ORDER FOR: (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES; (B) LOSS OF PROFITS OR REVENUE (OTHER THAN IN AN ACTION BY NCR VOYIX TO RECOVER PAYMENT OF AN AMOUNT OWED); OR (C) LOSS OF REPUTATION, GOODWILL, TIME, OPPORTUNITY (INCLUDING BUSINESS), DATA, OR ACCESS TO DATA, IN ALL CASES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. AS USED IN THIS SECTION 8, A “PARTY” INCLUDES A PARTY TO THIS AGREEMENT AND ITS AFFILIATES, AND ITS AND ITS AFFILIATES’ EMPLOYEES, AGENTS, CONTRACTORS, AND SUPPLIERS WHEN ACTING IN THAT CAPACITY WITH RESPECT TO THIS ORDER, AND ANY PERSONS OR ENTITIES CLAIMING BY OR THROUGH NCR VOYIX OR YOU. NCR VOYIX WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM ACTIONS IT TAKES AT YOUR DIRECTION.

8.2 EXCEPT WITH RESPECT TO AN IP CLAIM FOR WHICH SECTION 8.3 WILL APPLY, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY AMOUNT GREATER THAN THE TOTAL PURCHASE PRICE, FEES, AND CHARGES IN THE PRODUCT ORDER(S) AT ISSUE PAID BY YOU TO NCR VOYIX, OR IF THE PRODUCT IS PROVIDED ON A SUBSCRIPTION OR OTHER RECURRING FEE BASIS, ANY AMOUNT GREATER THAN THE  TOTAL FEES PAID HEREUNDER BY YOU TO NCR VOYIX FOR THE PRODUCT GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH SUCH LIABILITY AROSE. THIS SECTION WILL NOT LIMIT YOUR OBLIGATION TO PAY AN AMOUNT OWED TO NCR VOYIX AS SET FORTH IN AN ORDER FOR A PRODUCT.

8.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NCR VOYIX’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO ALL IP CLAIMS ASSOCIATED WITH A PRODUCT GIVING RISE TO ANY SUCH IP CLAIM WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY YOU TO NCR VOYIX FOR SUCH PRODUCT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST SUCH IP CLAIM IS BROUGHT.

8.4 Sections 8.1 and 8.2 will not limit your liability for infringing, misappropriating, misusing, or otherwise violating NCR Voyix’s or any of NCR Voyix’s Affiliates’ intellectual property rights.

8.5 EACH CLAUSE AND PHRASE OF THIS SECTION 8 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.

9. Disputes.