1. Equipment. McKesson agrees to sell to Retailer, and Retailer agrees to purchase from McKesson, the Equipment identified in the McKesson Merchant Processing Agreement (“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. 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. COMMERCIAL PURPOSES ONLY. THE EQUIPMENT IS BEING SOLD TO RETAILER FOR RETAILER’S COMMERCIAL PURPOSES AND IS NOT BEING SOLD TO RETAILER FOR HOUSEHOLD OR PERSONAL USE.
3. Equipment Warranties. Equipment is warranted against material defects for a one year period after the original date of purchase. This warranty does not include damage to the Equipment resulting from (a) accident or misuse or (b) any other breach of a provision of this Agreement. If the Equipment should otherwise become defective within the warranty period, McKesson will replace such Equipment free of charge (except that Retailer will be responsible for $35 for replacement shipping charges). This warranty does not apply to Equipment that may (a) become non-compliant with Rules or Applicable Law, (b) no longer be supported by BAMS or (c) otherwise become obsolete in the Card transaction acquiring industry; notwithstanding this limited warranty, it may be necessary for Retailer to upgrade equipment or purchase new equipment from time to time, for which Retailer will be charged upon such purchases by Retailer.
Any additional Warranties for the 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.
4. Software Updates. Retailer acknowledges and agrees that from time to time BAMS may “push” updates to Software to the Equipment remotely and automatically in connection with Retailer’s use of the 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.
5. INCOMPATABILITY WITH OTHER PROCESSORS. 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 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 PURCHASED FROM McKesson, AND ANY SOFTWARE LICENSED, UNDER THESE EQUIPMENT TERMS.
6. Delivery and Acceptance. McKesson will arrange for the Equipment to be delivered to the above address for Retailer. Retailer is deemed to have accepted the Equipment at the earlier of: (a) Retailer’s receipt and installation of such unit of Equipment; (b) delivery of such unit of Equipment to Retailer if Retailer’s site is not prepared and ready for installation; and (c) for any unit of Equipment that McKesson has not agreed to install for Retailer, seven (7) days after shipment of such unit of Equipment. Notwithstanding the foregoing, if Equipment Retailer promptly notifies BAMS upon delivery of Equipment that such Equipment is defective, such Equipment will not be deemed “accepted,” and BAMS will replace such 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.
7. Site Preparation, Installation & Maintenance. For each unit of 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 Equipment. Retailer shall support installation in accordance with McKesson’s requirements, including without limitation the following:
- Upon request, Retailer must allow McKesson or BAMS (or their respective subcontractors) reasonable access to the premises where Equipment or other communications equipment (e.g., printers) are or will be located.
- Any alterations required for installation of authorization terminal(s) or other communications equipment will be done at Retailer’s expense.
- Only McKesson or BAMS (or their respective subcontractors) can alter or modify Equipment or other communications equipment owned by BAMS or Equipment Owner.
- 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 Equipment to Retailer.
- Maintenance of Equipment is Retailer’s responsibility. Retailer is responsible for the safeguarding by Retailer of 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 Equipment to Retailer) immediately if any of the foregoing occurs.
- If Retailer fails to return any defective 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.
- Retailer is responsible for keeping all Equipment free of any claims, liens and legal processes initiated by creditors.
- Retailer may not relocate, remove, disconnect, modify or in any way alter any Equipment used in connection with the MP Program without first obtaining McKesson’s written consent.
8. 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 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 the Equipment.
9. Use of Equipment; Insurance.
- Retailer shall cause the Equipment to be operated by competent and qualified personnel in accordance with any operating instructions applicable to such Equipment and in accordance with the related merchant agreement, as applicable. Retailer shall not use the Equipment, and shall not permit the Equipment to be used by any third parties, in any manner or for any purpose for which the Equipment is not designed or reasonably suited.
- Retailer shall not make, and shall not permit any third parties to make, any physical alteration or modification of Equipment without McKesson’s prior written consent.
- Retailer shall not change, and shall not permit any third parties to change, the installation site of or move Equipment without McKesson’s prior written consent, which consent McKesson will not unreasonably withhold.
- Retailer shall not pledge, create, or permit any security interest, lien, or encumbrance on Equipment.. Retailer shall not part with possession of, or rent or lease any Equipment, without McKesson’s prior written consent. Any such pledge, security interest, lien, encumbrance, lease will be null and void without McKesson’s prior written consent.
- Retailer shall comply with all laws, rules and regulations relating to the use of the Equipment. Retailer is responsible for obtaining all legally required permits for the Equipment.
- 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 Equipment, to the extent necessary (in McKesson’s or BAMS’ reasonable discretion) to comply with Card Organization Rules, Card Organization requests, or Applicable Law.
- 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 Equipment indicating ownership by Equipment Owner.
- Retailer shall at all times keep the Equipment adequately insured against loss by fire, theft and all other hazards (comprehensive coverage). The loss, destruction, theft of or damage to the Equipment does not relieve Retailer from Retailer’s obligation to pay any fees payable hereunder.
10. Software License. Anything in these Equipment Terms to the contrary notwithstanding, BAMS 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 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.
11. 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 Equipment shall not exceed the purchase price paid to McKesson for the particular unit of Equipment involved. The remedies available to Retailer under these Equipment Terms are Retailer’s sole and exclusive remedies with respect to all Equipment.
12. 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 delivery, installation, acceptance, rejection, ownership, leasing, possession, use, operation, condition, liens against, or return of any unit of 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 Equipment include, without limitation, Retailer’s loading additional software onto Equipment; using such software, or using Equipment or Software, to access the Internet; and using Equipment for any purpose or in any manner that does not comply with this Addendum or the merchant agreement.
13. Third Party Beneficiaries. BAMS and Equipment Owner are intended third party beneficiaries of these Equipment Terms with respect to any Equipment, and may directly enforce against Retailer all rights of McKesson with respect to such Equipment.