This ATMdesk Software License Agreement ("Agreement") is between "You" (either an individual or an entity), the end user, and ATMdesk Diagnostics GmbH ("ATMdesk"). This Agreement authorizes You to use ATMdesk Diagnostic Software ("Software") as defined in Clause 1 below delivered to You via download from www.atmdesk.com or from other sources, under the terms and conditions set forth below. If You download Software from www.atmdesk.com or from other sources, then the legal notices, general terms and privacy policies posted there (collectively, the "Site Terms") shall be incorporated into and made a part of this Agreement by this reference and also govern your downloading and usage of the Software.
This is an agreement on end user license rights and not an agreement for sale. At any point in time ATMdesk continues to own the copy of the Software and any other copy that You are authorized to make pursuant to this agreement.
Read this Agreement carefully before downloading, installing or using the Software. By clicking on the "I Accept" button, downloading, installing, and/or using the Software, You agree to the terms and conditions of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, promptly click on the "Decline" or "I Do Not Accept" button, cancel the downloading or installation, or destroy or return the Software and accompanying documentation to ATMdesk. You agree that your use of the Software acknowledges that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.
1. Software
As used in this Agreement, the term "Software" means, collectively and/or as applicable: (i) the software product identified above (ii) all the contents of disk(s), CD-ROM(s), electronic mail and its file attachments, or other media with which this Agreement is provided, including the object code form of the software delivered via disk(s), CD-ROM, electronic mail or download from web-pages (iii) related explanatory written materials and any other possible documentation related thereto ("Documentation"); and (iv) upgrades, modified versions, updates, additions and copies of the Software (collectively "Updates"), if any, licensed to You by ATMdesk under this Agreement.
2. End user rights and terms of use
ATMdesk grants You a non-exclusive, non-transferable end user license right ("License") to install the Software on disk(s) or other permanent storage media and to use (activate) each License at any point in time only on a single Automated Teller Machine ("ATM", also known as Money Vending Machine or Bankomat), where non-transferable means that the License may not be used (activated) at the same point in time on another ATM, neither sold together with the ATM to another end user, nor sold individually to another end user.
ATMdesk will create a Customer Account ("Account") for you on www.atmdesk.com and provide you with a username and an initial autogenerated password. Upon your first login, you must change this autogenerated password to your own password. You must keep your password confidential and may not give it to any other person.
If you have received an ATMdesk USB Key ("Key"), you must log into your Account and register ("Check-In") your ATMdesk Key at least once every 3 (three) months. ATMdesk Keys not checked-in for more than 3 months will no longer be accepted by ATMdesk Software, regardless of the License, until you check-in the Key online again.
If you have received several ATMdesk USB Keys for use by several engineers, you must create one sub-account for every engineer, and every engineer using an ATMdesk Key must log into his own account and check-in his own key under his own account at least once every 3 (three) months as given above. Every engineer must keep his account password confidential and may not give it to any other person.
3. Limitations on end user rights
You may not copy, distribute, or make derivative works of the Software or related Hardware (keys, dongles, adapters), except as follows: You may make as many copies of the Software as required from your operational point of view to diagnose, test, service, maintain, refurbish or repair ATMs, as well as the required quantity of copies for archival purposes. Any other copies of the Software made by You are in violation of this Agreement. In particular, You may (i) not use, modify, translate, reproduce or transfer the right to use of the Software or related Hardware (keys, dongles, adapters) or copy the Software, except as expressly provided in this Agreement, (ii) not resell, sublicense, rent, lease or lend the Software or related Hardware (keys, dongles, adapters), (iii) nor reverse engineer, reverse compile, disassemble or otherwise attempt to discover the source code of the Software or related Hardware (keys, dongles, adapters) (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on the Software or related Hardware (keys, dongles, adapters). You agree that You shall only use the Software and related Hardware (keys, dongles, adapters) in a manner that complies with all applicable laws in the jurisdiction in which You use the Software and related Hardware (keys, dongles, adapters), including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4. Copyright
The Software and all rights, without limitation including proprietary rights therein, are owned by ATMdesk and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used. The structure, organization and code of the Software are the valuable trade secrets and confidential information of ATMdesk. You must not copy the Software, except as set forth in Clause 3 (Limitations On End User Rights). Any copies which You are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Software.
5. Multiple environment software / Multiple language software / Dual media software / Multiple copies / Updates
If the Software supports multiple platforms or languages, if You receive the Software on multiple media, or if You otherwise receive multiple copies of the Software, the number of ATMs on which all versions of the Software may be installed (activated) shall be only one ATM at any point in time. You may not rent, lease, sublicense, lend or transfer versions or copies of the Software You do not use. If the Software is an Update to a previous version of the Software, You must possess a valid end user license right to such previous version in order to use the Update and You may use the previous version for ninety (90) days after You receive the Update in order to assist You in the transition to the Update. After such time You no longer have the right to use the previous version, except for the sole purpose of enabling You to install the Update.
6. Commencement & Termination
This Agreement is effective from the first date You install (activate) the Software. You may terminate this Agreement at any time by permanently deleting, destroying and returning, at Your own costs, the Software, all back up copies and all related materials provided by ATMdesk. Your end user license rights automatically and immediately terminate without notice from ATMdesk if You fail to comply with any provision of this Agreement. In such event, You must immediately delete, destroy or return at Your own cost, the Software, all backup copies and all related material to ATMdesk.
In case of termination ATMdesk reserves the right of blocking all related ATMdesk Keys, Licenses and/or Accounts.
7. Disclaimer of Warranties
You acknowledge the software is provided "as is" without warranty of any kind express or implied and to the maximum extent permitted by applicable law neither ATMdesk, its licensors or affiliates nor the copyright holders make any representations or warranties, express or implied, including but not limited to the warranties of merchantability or fitness for a particular purpose or that the software will not infringe any third party patents, copyrights, trademarks or other rights. There is no warranty by ATMdesk or by any other party that the functions contained in the software will meet your requirements or that the operation of the software will be uninterrupted or error-free. You assume all responsibility and risk for the selection of the software to achieve your intended results and for the installation, use and results obtained from it.
8. No other obligations
This Agreement creates no obligations on the part of ATMdesk other than as specifically set forth herein.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall ATMdesk, its employees or licensors or affiliates be liable for any lost profits, revenue, sales, data or costs of procurement of substitute goods or services, property damage, personal injury, interruption of business, loss of business information or for any special, direct, indirect, incidental, economic, cover, punitive, special or consequential damages, however caused and whether arising under contract, tort, negligence, or other theory of liability arising out of the use of or inability to use the software, even if ATMdesk or its licensors or affiliates are advised of the possibility of such damages. Because some countries/states/jurisdictions do not allow the exclusion or limitation of liability, but may allow liability to be limited, in such cases, ATMdesk, its employees or licensors or affiliates' liability shall be limited to US $50 (fifty). Nothing contained in this agreement shall prejudice the statutory rights of any party dealing as a consumer. ATMdesk is acting on behalf of its employees and licensors or affiliates for the purpose of disclaiming, excluding and/or restricting obligations, warranties and liability as provided in this Clause 9, but in no other respects and for no other purpose.
10. Technical Support
ATMdesk has no obligation to furnish You with technical support unless separately agreed in writing between You and ATMdesk.
11. Export Control
The Software and any related technical data are subject to the U.S. Export Administration Regulations and may be subject to export and import laws, regulations and restrictions in other countries. You agree to comply strictly with all such laws, regulations and restrictions, and acknowledge that You have the responsibility to obtain any licenses or permits that may be required to import, use, export, re-export, or otherwise transfer or disclose of the Software or any related technical data. You further agree that except as authorized, You shall not export, re-export or otherwise transfer or disclose of the Software, the related technical data or any direct product thereof; (i) into Iran, Iraq, Libya, North Korea, Sudan, Syria; (ii) to entities controlled by such countries or to nationals of such countries; or (iii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department's Denied Persons List, or the U.S. Commerce Department's Entity List.
12. Notices
All customer support questions should be addressed to ATMdesk as provided on the contact page of the www.atmdesk.com website. All requests for technical support must include the ATMdesk Debug files, available from a menu within ATMdesk running on the machine that causes the technical question.
13. Applicable Law
This Agreement shall be governed by and construed in accordance with the internal laws of the Federal Republic of Germany without regard to its conflicts of laws rules.
14. Arbitration
Any and all disputes that may arise between You and ATMdesk under or in connection with this Agreement, except for claims for injunctive relief, shall be submitted to final and binding arbitration heard by a single arbitrator in accordance with the then-current Commercial Arbitration Rules of the European Arbitration (the "EA"), unless otherwise agreed in writing by the parties. Any counterclaim not brought within 15 days after receipt of the arbitration notice shall be barred. The arbitration shall be conducted in any EA arbitration facilities in Germany. The arbitration shall be conducted in German language. The award shall include a written statement of findings of fact and conclusions of law and the reasons on which it is based. It also shall include an award of legal fees, costs and expenses, including reasonable attorneys' fees and the arbitrator's fees and expenses, to the prevailing party. Subject to any terms contained in this Agreement limiting or excluding damages, the arbitrator may award any relief that the arbitrator deems proper, including without limitation equitable relief, provided that the arbitrator shall not have authority to award exemplary, special or punitive damages. The award shall be enforceable in any court of competent jurisdiction. The terms of this Section shall continue in full force and effect subsequent to and notwithstanding the termination of this Agreement.
15. General Provisions
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing by an authorized officer of ATMdesk. This is the entire agreement between ATMdesk and You relating to the Software and it supersedes any prior representations, discussions, undertakings, end user agreements, communications or advertising relating to the Software.
