1. Equipment. McKesson agrees to rent to Retailer, and Retailer agrees to accept and rent from McKesson, the Equipment identified above (“Equipment”), according to the terms and conditions set forth herein (“Equipment Terms”) which Equipment will be fulfilled and supported by Banc of America Merchant Services, LLC (“BAMS”) on behalf of McKesson as further described in these Equipment Terms. Equipment rented by McKesson to Retailer hereunder is referred to herein as “Rental Equipment”. Title to all Rental Equipment shall remain at all times with the owner of the Equipment which may be BAMS or a BAMS affiliate (in such capacity, BAMS or such BAMS affiliate are referred to herein as the “Equipment Owner”). To the extent these Equipment Terms conflict with the terms of the McKesson Merchant Processing Agreement between McKesson and Retailer, these Equipment Terms will control.
2. Rental Equipment. Retailer must pay for a minimum of six (6) months of rental fees for the Rental Equipment as further specified in these Equipment Terms, regardless of whether Retailer returns the Rental Equipment to BAMS prior to the expiration of such six (6) month initial term (the “Initial Term”). Upon expiration of the Initial Term, these Equipment Terms will remain in effect until: (i) Retailer returns to BAMS, and BAMS receives from Retailer, the related Rental Equipment; and (ii) all of Retailer’s obligations under these Equipment Terms have been satisfied. If, and only if, Retailer returns any Rental Equipment to BAMS at BAMS’ or McKesson’s request prior to the expiration of the Initial Term, Retailer will be charged rental fees only for the period of time until BAMS receives such returned Rental Equipment.
If Rental Equipment should become inoperable or is defective, BAMS, on behalf of McKesson, will replace such Rental Equipment free of charge (except that Retailer shall pay shipping charges of $35.00 per unit of Rental Equipment); provided, however, that if Equipment Owner determines that the Rental Equipment is inoperable due to abuse or neglect, the damaged Rental Equipment will be replaced, and Retailer will be responsible to McKesson for the replacement cost for such Rental Equipment.
If (a) Retailer fails to return any unit of defective Rental Equipment, as directed by BAMS within the time frame required by BAMS, or (b) returned Rental Equipment is determined by Equipment Owner to be inoperable due to abuse or neglect, then in either case, Retailer shall be responsible to McKesson for the replacement cost of such Rental Equipment.
3. COMMERCIAL PURPOSES ONLY. THE EQUIPMENT IS BEING RENTED TO RETAILER FOR RETAILER’S COMMERCIAL PURPOSES AND IS NOT BEING RENTED TO RETAILER FOR HOUSEHOLD OR PERSONAL USE.
4. Equipment Warranties. Any Warranties for the Rental Equipment or any related Software originate from the applicable third party provider or manufacturer (“Vendor”). Materials or documents, if any, setting forth warranty terms, conditions, exceptions, exclusions and disclaimers will be contained within the packaging shipped from the Vendor. McKesson EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO RETAILER OR ANY PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE OF ANY EQUIPMENT.
5. Software Updates. Retailer acknowledges and agrees that from time to time BAMS may “push” updates to Software to the Rental Equipment remotely and automatically in connection with Retailer’s use of the Rental Equipment, and that such “pushed” Software updates are not sold to Retailer outright but instead will be licensed to Retailer as provided under Section 12 hereof.
6. INCOMPATABILITY WITH OTHER PROCESSORS. RENTAL EQUIPMENT, AND ANY SOFTWARE LICENSED BY McKesson IN CONNECTION THEREWITH, MAY NOT BE COMPATIBLE WITH ANOTHER PROCESSOR’S SYSTEMS. McKesson, BAMS AND EQUIPMENT OWNER HAVE NO OBLIGATION TO MAKE SUCH SOFTWARE AND/OR RENTAL EQUIPMENT COMPATIBLE WITH ANY OTHER PROCESSING SYSTEMS. IN THE EVENT THAT RETAILER ELECTS TO USE ANOTHER PROCESSING SERVICE PROVIDER UPON THE TERMINATION OF THESE EQUIPMENT TERMS, RETAILER MAY NOT BE ABLE TO USE THE EQUIPMENT RENTED FROM McKesson, AND ANY SOFTWARE LICENSED, UNDER THESE EQUIPMENT TERMS.
7. Delivery and Acceptance. McKesson will arrange for the Rental Equipment to be delivered to the above address for Retailer. Retailer is deemed to have accepted the Rental Equipment at the earlier of: (a) Retailer’s receipt and installation of such unit of Rental Equipment; (b) delivery of such unit of Rental Equipment to Retailer if Retailer’s site is not prepared and ready for installation; and (c) for any unit of Rental Equipment that McKesson has not agreed to install for Retailer, seven (7) days after shipment of such unit of Rental Equipment. Notwithstanding the foregoing, if Equipment Retailer promptly notifies BAMS upon delivery of Equipment that such Rental Equipment is defective, such Rental Equipment will not be deemed “accepted,” and BAMS will replace such Rental Equipment as provided herein. Upon delivery of the replacement Equipment, such replacement Equipment will be deemed accepted in accordance with the provisions of this paragraph. The Initial Term will commence on the date such Equipment or such replacement Equipment is deemed accepted.
8. Site Preparation, Installation & Maintenance. For each unit of Rental Equipment, Retailer shall prepare the installation site(s), including but not limited to the power supply circuits and phone lines, in conformance with the Vendor’s and BAMS’ specifications (provided to Retailer by McKesson) and will make the site(s) available to McKesson and BAMS by the confirmed shipping date for such unit of Rental Equipment. Retailer shall support installation in accordance with McKesson’s requirements, including without limitation the following:
a. Upon request, Retailer must allow McKesson or BAMS (or their respective subcontractors) reasonable access to the premises where Rental Equipment or other communications equipment (e.g., printers) are or will be located.
b. Any alterations required for installation of authorization terminal(s) or other communications equipment will be done at Retailer’s expense.
c. Only McKesson or BAMS (or their respective subcontractors) can alter or modify Rental Equipment or other communications equipment owned by BAMS or Equipment Owner.
d. If a terminal or printer appears to be defective, Retailer must immediately call the BAMS POS Help Desk at the telephone number set forth in the BAMS Welcome Kit included with the deployment of the Rental Equipment to Retailer.
e. Maintenance of Rental Equipment is Retailer’s responsibility. Retailer is responsible for the safeguarding by Retailer of Rental Equipment from loss, damage, unauthorized use, misuse or theft. Retailer shall notify BAMS POS Help Desk (at the telephone number set forth in the BAMS Welcome Kit included with the deployment of the Rental Equipment to Retailer) immediately if any of the foregoing occurs.
f. If Retailer fails to return any defective Rental Equipment, Retailer may be responsible for its replacement value and for any legal and/or collection costs incurred by McKesson, BAMS or the Equipment Owner in connection with recovering such Equipment.
g. Retailer is responsible for keeping all Rental Equipment free of any claims, liens and legal processes initiated by creditors.
h. Retailer may not relocate, remove, disconnect, modify or in any way alter any Rental Equipment used in connection with the MP Program without first obtaining McKesson’s written consent.
9. Supplies. If Retailer would like to purchase supplies from BAMS, which may include wires, paper rolls, wall mounts, and other items to be used with Retailer’s Rental Equipment (Supplies”), Retailer must contact BAMS at the POS Help Desk telephone number (included in the Welcome Kit) for availability and pricing. Additional charges apply for Supplies and will be billed by McKesson. Supplies are not provided with, or included with the rental of Rental Equipment.
10. Use of Rental Equipment; Insurance.
a. Retailer shall cause the Rental Equipment to be operated by competent and qualified personnel in accordance with any operating instructions applicable to such Rental Equipment and in accordance with the related merchant agreement, as applicable. Retailer shall not use the Rental Equipment, and shall not permit the Rental Equipment to be used by any third parties, in any manner or for any purpose for which the Rental Equipment is not designed or reasonably suited.
b. Retailer shall not make, and shall not permit any third parties to make, any physical alteration or modification of Rental Equipment without McKesson’s prior written consent.
c. Retailer shall not change, and shall not permit any third parties to change, the installation site of or move Rental Equipment without McKesson’s prior written consent, which consent McKesson will not unreasonably withhold.
d. Retailer shall not pledge, create, or permit any security interest, lien, or encumbrance on Rental Equipment (. Retailer shall not part with possession of, or sub-rent or sublease any Rental Equipment, without McKesson’s prior written consent. Any such pledge, security interest, lien, encumbrance, sub-rental or sublease will be null and void without McKesson’s prior written consent.
e. Retailer shall comply with all laws, rules and regulations relating to the use of the Rental Equipment. Retailer is responsible for obtaining all legally required permits for the Rental Equipment.
f. McKesson or BAMS (or their respective representatives) may, at any time on commercially reasonable notice, enter Retailer’s premises for purposes of inspecting, examining or repairing Rental Equipment, to the extent necessary (in McKesson’s or BAMS’ reasonable discretion) to comply with Card Organization Rules, Card Organization requests, or Applicable Law.
g. Rental Equipment will remain Equipment Owner’s personal property and will not under any circumstances be considered to be a fixture affixed to Retailer’s real estate. Retailer hereby permits McKesson and BAMS to affix suitable labels or stencils to the Rental Equipment indicating ownership by Equipment Owner.
h. Retailer shall at all times keep the Rental Equipment adequately insured against loss by fire, theft and all other hazards (comprehensive coverage). The loss, destruction, theft of or damage to the Rental Equipment does not relieve Retailer from Retailer’s obligation to pay the rent payable hereunder.
11. Return of Rental Equipment. To return Rental Equipment to BAMS at the termination of these Equipment Terms or for any other reason as set forth herein, Retailer must call the BAMS POS Help Desk (at the telephone number set forth in the BAMS Welcome Kit included with the deployment of the Rental Equipment to Retailer) and advise that Retailer would like to return the Rental Equipment. Retailer will be provided instructions on the return at that time. Retailer should keep proof of delivery documents and the Equipment’s serial number for Retailer’s records. Retailer will continue to be charged all applicable fees for the Rental Equipment until BAMS receives the Rental Equipment from Retailer. When returning Rental Equipment, Retailer is responsible for all costs incurred, including a return shipping charge of $15.00 per unit of Rental Equipment, and must deliver the Rental Equipment to BAMS in the same operating order, condition and appearance that such Rental Equipment had at the time of its delivery to Retailer, reasonable wear and tear excepted. If Retailer fails to return the related Rental Equipment to BAMS (or if such Rental Equipment is returned but not in such operating order, condition, and appearance) within the time frame required by McKesson or BAMS, Retailer will be charged and must pay McKesson for the cost of replacing such Rental Equipment, as well as any associated legal and/or collection costs incurred by McKesson or BAMS.
12. Software License. Anything in these Equipment Terms to the contrary notwithstanding, Equipment Owner retains all ownership and copyright interest in and to all Software, and Retailer shall have only a nonexclusive, non-transferable, revocable sublicense from McKesson to use the Software in Retailer’s operation of the Rental Equipment for the purposes set forth in the merchant agreement. Nothing in these Equipment Terms confers any title or ownership of any such Software to Retailer or shall be construed as a sale of any rights in any such Software to Retailer. Retailer hereby accepts, agrees to, and acknowledges Retailer is bound by all applicable terms and conditions of use and other license terms applicable to such Software. Retailer shall not reverse engineer, disassemble or decompile the Software. Retailer shall not give any third party access to the Software without BAMS’ prior written consent. Retailer’s obligations under this Section 12 shall survive the termination of these Equipment Terms.
13. Limit of Liability. In no event will McKesson be responsible for any indirect, incidental or consequential, or punitive damages which Retailer may incur as a result of entering into, arising out of, or relying upon these Equipment Terms, even if McKesson has been advised of the possibility of such damages occurring. McKesson’s liability arising out of or in any way connected with Rental Equipment shall not exceed the prior six (6) month’s rent paid to McKesson for the particular unit of Rental Equipment involved. The remedies available to Retailer under these Equipment Terms are Retailer’s sole and exclusive remedies with respect to all Rental Equipment.
14. Indemnification. In addition to any other indemnity obligations Retailer has to McKesson, Retailer shall indemnify and hold McKesson, BAMS and Equipment Owner harmless from and against any and all losses, liabilities, damages and expenses resulting from: (a) the rental, delivery, installation, acceptance, rejection, ownership, leasing, possession, use, operation, condition, liens against, or return of any unit of Rental Equipment and (b) any breach by Retailer of any of Retailer’s obligations hereunder, except to the extent any losses, liabilities, damages or expenses result from McKesson’s, BAMS’ or Equipment Owner’s gross negligence or willful misconduct. In addition to Retailer’s other obligations hereunder, Retailer acknowledges and agrees that the “use” and “operation” of the Rental Equipment include, without limitation, Retailer’s loading additional software onto Rental Equipment; using such software, or using Rental Equipment or Software, to access the Internet; and using Rental Equipment for any purpose or in any manner that does not comply with this Addendum or the merchant agreement.
15. Rights upon Breach. Upon any breach of these Equipment Terms, McKesson or BAMS may, at such party’s option, effective immediately without notice: (i) terminate the rental of Rental Equipment, (ii) repossess the related Rental Equipment, and proceed in any lawful manner against Retailer for collection of amounts due hereunder; and (iii) exercise all other rights available to McKesson or BAMS under these Equipment Terms or the merchant agreement, at law, or in equity.
16. Third Party Beneficiaries. BAMS and Equipment Owner are intended third party beneficiaries of these Equipment Terms with respect to any Rental Equipment, and may directly enforce against Retailer all rights of McKesson with respect to such Rental Equipment.