Disclaimer

SEE YOUR RESPECTIVE SALES ORDER AGREEMENT AND/OR SEVICE AGREEMENT TERMS AND CONDITIONS FOR FURTHER LIMITATION PROVISIONS. IN THE EVENT OF CONFLICT BETWEEN DISLCAIMER AND ANY OTHER PROVISION OR AGREEMENT, PRIOR OR FUTURE, INCLUDING BUT NOT LIMITED TO THIS DISCLAIMER, SALES ORDER AGREEMENT WILL PREVAIL.

AM/PM provides hardware and/or software (Collectively the “System”) in lieu of all other warranties not stated in the Sales or Service Agreement, express or implied, including warranties of merchantability and fitness for any particular purpose.

AM/PM shall not be obligated to provide any services when any monies due by Customer to AM/PM are outstanding.

AM/PM shall not be liable on any legal basis for any property damage or the injury or death of any person that may arise from the sale, installation or use of the System or any component of the System.

AM/PM does not warrant that the System will be error-free and shall not be liable for indirect, incidental, special or consequential damage, including (without limiting the foregoing), business or economic loss arising from any cause or for any reason whatsoever even if AM/PM has been advised of such a possibility.

With regards to Database usage or conversion, Databases are provided “as is”, without warranty of any kind. Further, AM/PM 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 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.

Virus Support

AM/PM does not cover damage caused by or the supporting and cleaning of viruses on either the back office PC or POS terminals.

Work performed in this area is at AM/PM’s sole discretion and is billable on a time and materials basis at current AM/PM rates. This would include (but not limited to) work in the following areas:

1. Scanning for viruses
2. Cleaning viruses
3. Reloading of software
4. Recovery of data
5. New Hardware required

Integrated Credit/Debit Support

AM/PM does not cover integrated credit/debit payment solutions software and banking equipment.

Work performed in this area is at AM/PM’s sole discretion and is billable on a time and materials basis at current AM/PM rates. This would include (but not limited to) work in the following areas:

1. Troubleshooting banking equipment, such as razor box, e-box, pin pads, modems
2. Replacing banking equipment, such as razor box, e-box, pin pads, modems
3. Other bank issues

Router / Internet Support

AM/PM does not cover Internet, DSL or hi-speed cable related issues.

If AM/PM has installed a Sonicwall and/or router, AM/PM will provide initial support of Internet access. Support will consist of verifying communication to the internet service provider via internet device (i.e. ping internet).

Customer will be responsible for all other issues not pertaining to router or Sonicwall functionality, and customer will be responsible for contacting internet service provider directly.

Exclusions

AM/PM’s obligation to provide Services is contingent upon proper use of the equipment and does not cover customer negligence or matters beyond the reasonable control of AM/PM, including but not limited to the following:

• Labour and/or parts replacement required because of equipment obsolescence, viruses, customer negligence, accidents, acts of God, acts of third parties or any force of nature, such as liquid spill, burglary, power failures and fluctuations, and flood.
• Labour and/or parts replacement required because of improper network or AC power or other supply of power (as per AM/PM specifications).
• Recreation of data lost for any cause whatsoever, including power failures and viruses.
• Software upgrades installation, unless otherwise stated herein.
• Changing of ink ribbons, toner cartridges, drum kits and/or paper rolls.
• Operator training, programming and/or software changes, including), tax changes, time changes, new keys, department, menu items or database changes.
• Hardware or software obsolescence, as determined by manufacturer, developer or distributor.
• Supply items such as ink ribbons, toner cartridges, drum kits, paper, mag cards, keys, key locks, batteries, cash/coin trays, cash inserts, operator replaceable scanner glass, touch plates and like items.
• Relocation, move or transfer of equipment.
• Parts replacement for touch plate or LCD / CRT screen burn.
• Damaged caused by software viruses of any kind and/or cause. Supplying, loading and maintenance of any anti-virus software, including updates, is the responsibility of the customer.
• Situation caused to action or inaction of ISPs, including DNS changes.
• Situation related to debit / credit issues or down time, including bank processing or pin pad errors.

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 labour and material rates with a minimum one (1) hour charge applied.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANY OTHER PROVISIONS AND AGREEMENTS BETWEEN AM/PM AND CUSTOMER, OR ANY STATUTORY PROVISIONS, UNDER NO CIRCUMSTANCES IS AM/PM LIABLE TO CUSTOMER, REGARDLESS OF WHETHER AM/PM WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION.

DAMAGES INCLUDING BUT 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 ) OR PAYMENT TRANSACTIONS ERRORS OR OMMISSIONS (ARISING FROM DEBIT, CREDIT, GIFT CARD, PCI, INTERAC, CREDIT CARD COMPANY, CARDHOLDER COMPLIANCE ISSUES, AND OR PAYMENT DEVICE(S) OR GENERAL COMPUTER SYSTEM MALFUNCTION AND INTERFERENCES (ARISING FROM EQUIPMENT FAILURE, MALFUNCTION, ANY FORM OF SYSTEM INTRUSIONS, 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 AND/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.

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.