The following terms and conditions of this Disclaimer are deemed to be included in every sales order agreement, maintenance agreement or supply of Equipment or Software products or services by StoreDynamics to you the Customer of StoreDynamics.
Below sets out important terms which apply to all your dealings with StoreDynamics and are actually part of your respective sales order agreement, maintenance agreement or other agreement with StoreDynamics.
We recommend you read this carefully. StoreDynamics provides Equipment or Software products or services in lieu of all other warranties not stated in the sales or maintenance agreement, express or implied, including warranties of merchantability and fitness for any particular purpose. StoreDynamics shall not be obligated to provide any Equipment or Software products or services when any monies are outstanding by Customer to StoreDynamics.
AM/PM’s obligation to provide Equipment or Software products or services is contingent upon proper use of Equipment and Software and does not cover labour, parts and other expenditures required for or caused by matters beyond the reasonable control of AM/PM Service®, including but not limited to the following:
* Customer negligence, accidents, acts of God, fire, flood, acts of third parties, burglary, theft, any force of nature, liquid spill, power failures or fluctuations, screen burn
* Equipment or software obsolescence (as determined by developer, manufacturer / distributer or AM/PM Service®)
* Software licensing / developer maintenance fees
* Operator training, programming or software changes pertaining to upgrades, tax rate changes, PCI, EMV, time changes, screen, department, menu items or database changes
* Equipment or Software updates, upgrades fees or installation
* Supply items or consumables such as, ink ribbons, toner cartridges, drum kits, paper, mag cards, fusers, keys, key locks, batteries, cash/coin trays, scanner glass and touch plates
* Improper network or AC power or other supply of power (AM/PM Service® specifications available upon request) or communication line failure
* Relocation, move or transfer of Equipment or Software
* Damage caused by viruses of any kind by any cause. Further, supplying, loading and maintenance of any anti-virus software, including updates, is the responsibility of the Customer
* Recreation of data lost for any cause whatsoever, including power fluctuations, power failures, database corruption or viruses
* Action or inaction of Internet Service Provider (ISP), including DNS changes, Internet, DSL or hi-speed cable issues
* Debit/Credit payment solution Equipment and software issues
* Payment Transaction or credit card merchant issues such as PCI compliance, EMV (Chip & Pin), bank processing or pin pad errors or tampering
If Services are required as a result of one or more of the above causes, it will be made at the then prevailing AM/PM Service® labour and material rates with a minimum one (1) hour charge applied. If persons other than AM/PM Service® employees or authorized contractors or agents of AM/PM Service®, repair, modify or perform any services, and as a result thereof any service by AM/PM is required to restore the Equipment or Software to good operating condition, such services will be performed and billed at prevailing AM/PM Service® Time and Material Rates.
With regards to Database usage or conversion, Databases are provided “as is”, without warranty of any kind. Further, AM/PM Service® does not warrant, guarantee or make any representations that Customer’s use of Databases will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy Customer’s requirements. Customer assumes the entire risk as to the results and performance of the Database and the consideration due under Sales or Service Agreement reflects such assumption of risk by Customer. AM/PM Service® makes no representations or warranties either express or implied, with respect to the Database or any information contained in the Database including but not limited to, its quality, performance, time of performance, merchantability or fitness for a particular use, or non-infringement.
With regards to the Payment Card Industry Digital Security Standard (PCI-DSS) Customer, referred to as the “Merchant” in the PCI-DSS, is ultimately responsible for protecting credit card information. AM/PM Service® IS NOT RESPONSIBLE FOR ENSURING THAT CUSTOMER’S BUSINESS ADHERES TO PCI OR ANY OTHER COMPLIANCY. CUSTOMER ACKNOWLEDGES THAT CREDIT CARD PROVIDERS, BANKS, AND CREDIT CARD PROCESSING COMPANIES IMPLEMENT AND REQUIRE SPECIFIC PROCEDURES AND POLICIES IN CONJUNCTION WITH THEIR CARDS AND SERVICES. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY THE CREDIT CARD COMPANIES, BANKS, AND/OR PROCESSORS IT ELECTS TO ACCEPT OR UTILIZE.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISIONS AND AGREEMENTS BETWEEN AM/PM Service® AND CUSTOMER, OR ANY STATUTORY PROVISIONS, UNDER NO CIRCUMSTANCES IS AM/PM Service® LIABLE TO CUSTOMER, REGARDLESS OF WHETHER AM/PM WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (hereinafter “EXCLUDED DAMAGES”), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION.
EXCLUDED DAMAGES INCLUDE BUT ARE NOT LIMITED TO DAMAGES FOR: BUSINESS AND/OR PERSONAL LOSSES (ARISING FROM LOSS OF USE, GOODWILL, DATA OR PROFITS); OR ERRORS AND OMISSIONS (ARISING FROM ACTUAL OR ALLEGED ERRORS, STATEMENTS, ACTS, OMISSIONS, ASSUMPTIONS, NEGLECT, OR BREACH OF DUTY); OR PROFESSIONAL SERVICES (ARISING FROM AN ERROR, OMISSION, OR FAILURE TO DELIVER); OR TAXES (ARISING FROM ERRORS IN TAX RATES, TAX COLLECTION, SUBMISSION, CALCULATION); OR PAYMENT TRANSACTION ERRORS OR OMISSIONS (ARISING FROM DEBIT, CREDIT, GIFT CARD, INTERAC OR PAYMENT DEVICE(S)); OR COMPLIANCE WITH PAYMENT CARD INDUSTRY (PCI) AND ANY OTHER POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY CREDIT CARD COMPANIES, BANKS, INTERAC, PROCESSORS OR OTHER PAYMENT PROCESSING RELATED ENTITY; OR GENERAL COMPUTER SYSTEM MALFUNCTION AND INTERFERENCES (ARISING FROM EQUIPMENT OR SOFTWARE FAILURE, MALFUNCTION, ANY FORM OF SYSTEM INTRUSIONS, SYSTEM AND NETWORK ACCESS SECURITY ISSUES AND DEFICIENCIES, VIRUSES, WORMS, TROJAN HORSES, OPERATING SYSTEM ERRORS, DATABASE ERRORS OR CORRUPTION, UPDATES, THIRD PARTY SOFTWARE APPLICATIONS OR HARDWARE, NETWORK, CONNECTIVITY, ISP, DNS CHANGES, ELECTRONIC COMMERCE SYSTEM PROVIDERS AND TELECOMMUNICATION CARRIERS, POWER FLUCTUATIONS AND OUTAGES, EQUIPMENT OBSOLESCENCE); OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSS.
AM/PM’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO CUSTOMER SHALL BE LIMITED TO ACTUAL, DIRECT AND OUT-OF-POCKET MONEY DAMAGES SUFFERED OR INCURRED BY CUSTOMER IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE EQUIPMENT OR SERVICES SUBJECT TO CLAIM OR DISPUTE, REGARDLESS OF THE CHARACTERIZATION OF SUCH ACTION, OR FIVE THOUSAND DOLLARS ($5,000.00), WHICHEVER IS LESS. AM/PM MAKES NO GUARANTIES EXPRESS, IMPLIED OR STATUTORY IN CONNECTION WITH EQUIPMENT, SOFTWARE APPLICATIONS AND SERVICES AND WITHOUT LIMITING THE FOREGOING ALL EQUIPMENT, SOFTWARE AND SERVICES PROVIDED BY AM/PM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY. CUSTOMER WILL MAINTAIN ADEQUATE INSURANCE PROTECTION COVERING ANY POTENTIAL DAMAGES AND WAIVES ANY CLAIM AGAINST AM/PM TO THE EXTENT IT IS REIMBURSED BY THE INSURANCE CARRIER. SEE THE RESPECTIVE TERMS AND CONDITIONS OF YOUR SALES ORDER AGREEMENT OR MAINTENANCE AGREEMENT FOR FURTHER DETAILS. IN THE EVENT OF CONFLICT BETWEEN DISCLAIMER AND ANY OTHER PROVISION OR AGREEMENT, PRIOR OR FUTURE, INCLUDING BUT NOT LIMITED TO THIS DISCLAIMER, SALES ORDER AGREEMENT WILL PREVAIL.
LIMITATION OF ACTION
No action, regardless of the characterization of such action, may be brought by customer more than one (1) year after the cause of the action that has arisen.