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40.10 Limitation of Liability.
<br />40.10.1 We are not liable for your use or misuse of the Gateway Services, including
<br />the merit and legitimacy of the orders forwarded by you. All liability for validity of
<br />orders remains with you. We are not responsible for any data entry errors, Customer
<br />misrepresentations, or reporting errors resulting from your actions. We shall not be
<br />liable to you or your Customer for the accuracy of the information provided by the
<br />Gateway Services.
<br />40.10.2 In no event shall we be liable to you, or to any other person or entity, under
<br />this Section 40, or otherwise, for any punitive, exemplary, special, incidental or
<br />consequential damages, including, without limitation, any loss or injury to earnings,
<br />profits or goodwill.
<br />40.10.3 Notwithstanding any provision in this Agreement to the contrary, in no
<br />event shall our liability under this Section 40 for all Claims arising under, or related
<br />to, this Section 40 exceed, in the aggregate (inclusive of any and all Claims made by
<br />you against us, whether related or unrelated), the lesser of: (i) the total amount of
<br />fees paid by you for the Gateway Services during the 12 -month period immediately
<br />preceding the date the event giving rise to such Claim(s) occurred; or (ii)
<br />$50,000.00.
<br />40.10.4 Notwithstanding provisions set forth herein, we will not be liable for any
<br />Claims under this Agreement arising directly or indirectly from or otherwise
<br />concerning: (a) any termination, suspension, delay or disruption of service
<br />(including billing for a service) by the internet, any common carrier or any third
<br />party service provider; (b) any failure, disruption or malfunction of the Service
<br />provided hereunder or the internet, or any communications network, facility or
<br />equipment beyond our reasonable control, whether or not attributable to one or
<br />more common carriers or third party service providers; (c) any failed attempts by
<br />you or your Customers to access any Systems or to complete processing transactions;
<br />(d) any failure to transmit, obtain or collect data from Customers; or (e) human,
<br />machine or software errors or faulty input or your or your Customer's erroneous
<br />input.
<br />40.10.5 Except as expressly agreed to by us in writing with respect to any Separate
<br />Product, we are not liable for any Excluded Products.
<br />40.11 Disclaimer of Warranties. You acknowledge and agree that the use of the
<br />Gateway Services and Documentation are at your sole risk and we make no
<br />representation or warranty, express or implied, and no implied at law warranty shall
<br />arise from this Section, the Gateway Services, the Documentation, our procedures,
<br />or other services provided by or performed by us hereunder, including, without
<br />limitation: (a) any implied warranties of merchantability or fitness for a particular
<br />purpose; (b) any warranties of noninterference or non -infringement; or (c) any
<br />warranties that any product or Service provided hereunder (including but not
<br />limited to the Software) will (i) meet your requirements; (ii) operate according to
<br />your expectations; (iii) provide accurate data; or (4) operate uninterrupted or error
<br />free. Any and all such warranties are expressly disclaimed by us and waived by you.
<br />We do not warrant that any errors will be corrected. Except as otherwise specifically
<br />set forth herein, the Platform, Gateway Services and Software provided hereunder are
<br />provided on an "As -Is, with all faults" basis. This disclaimer of warranties constitutes
<br />an essential part of this Agreement. All decisions to reject any processing transaction
<br />or payment for your products or services are solely your responsibility.
<br />40.12 Subcontractors. We may subcontract all or part of the Gateway Services using a
<br />variety of providers globally, but, notwithstanding any such subcontract, we shall
<br />remain fully responsible for performance of Gateway Services, including ensuring
<br />the compliance of subcontractors with the terms of this Agreement applicable to
<br />such subcontractors. Each of our subcontractors for the Gateway Services is a third
<br />party beneficiaries of Sections 40.4, 40.5, 40.7, 40.8, 40.9, 40.10, 40.11, 40.13 and
<br />40.14 of this Section with rights to enforce the applicable terms of this Section
<br />against you.
<br />40.13 Survival. Upon termination or expiration of this Section 40 or the Agreement, a
<br />party's obligations shall cease except for those remaining or required to be performed
<br />following such termination. For the avoidance of doubt, the parties agree that those
<br />provisions of this Section that logically should survive its termination or expiration
<br />in order to accomplish its fundamental purposes will do so. All representations,
<br />warranties, indemnities and covenants made herein shall survive the termination of
<br />this Section and shall remain enforceable after such termination.
<br />41. INTERPRETATION; DEFINITIONS
<br />41.1 The headings contained in this Agreement are for convenience of reference only and
<br />shall not in any way affect the meaning or construction of any provision of this
<br />Agreement. References in this Agreement to include, including, or in particular shall
<br />not be given a restrictive meaning and shall be interpreted without limitation.
<br />Reference to any legislation is to such legislation as amended or supplemented in the
<br />future.
<br />The words "herein" and "hereunder" and other words of similar import refer to this
<br />Agreement in its entirety and not to any part of this Agreement unless the context
<br />requires otherwise.
<br />41.2 Certain terms used in this Agreement are defined below:
<br />Address Verification Service (AVS): A tool provided by credit card processors and
<br />issuing banks to merchants in order to detect suspicious credit card transactions. The
<br />Address Verification Service (AVS) checks the billing address submitted by the card user
<br />with the cardholders billing address on record at the issuing bank. This is done as part of
<br />the merchant's request for authorization of the credit card transaction. The credit card
<br />processor sends a response code back to the merchant indicating the degree of address
<br />matching, depending on which the credit card transaction may be accepted or rejected.
<br />Adverse Development: means any event, development, circumstance, state of facts or
<br />effect (including a change in Applicable Law or a change in the Card Organization Rules)
<br />that, individually or in the aggregate, (a) has had or would reasonably be expected to have
<br />an adverse effect, other than a de minimis adverse effect, on the business, operations or
<br />financial condition of us, or (b) has impaired or would reasonably be expected to impair,
<br />other than a de minimis impairment, our ability to perform our obligations under this
<br />Agreement (and, for the avoidance of doubt, any adverse or negative publicity mentioning
<br />us, or damage to our reputation).
<br />Affiliate: a Person that, directly or indirectly, (i) owns or controls a party to this Agreement
<br />or (ii) is under common ownership or control with a party to this Agreement.
<br />Agreement: has the meaning set forth in Section 1.1 of this document.
<br />Anticipated Interchange and Program Pricing Level: your initial anticipated Card
<br />Organization interchange and program pricing rates as indicated in your initial Fee
<br />Schedule.
<br />Application: the application for Services executed by you.
<br />Applicable Law: means, with respect to any party, any law (including common law),
<br />ordinance, statute, treaty, order, rule, regulation, directive, regulatory guidance, opinion,
<br />interpretation, consent, approval, authorization or other determination or finding of any
<br />governmental body with jurisdiction over such party that is applicable to or binding upon
<br />such party or to which such party or its assets is subject, whether federal, state, county,
<br />local, foreign or otherwise.
<br />Authorization: approval by, or on behalf of, the Issuer to validate a transaction. An
<br />Authorization indicates only that the Issuer has confirmed there is sufficient availability
<br />of funds on the Cardholder's account at the time the Authorization is requested.
<br />Authorization and Capture: the communication of instructions from your POS or other
<br />systems to our computer systems, whether the communications are for authorization
<br />requests or any other capture of information.
<br />Authorized Representative: means an owner, partner, officer, or other Agent of the
<br />Merchant that is duly authorized to enter into agreements on behalf of the Merchant and
<br />legally bind Merchant to such agreements.
<br />Bank: means TD Bank, N.A.
<br />Card: See either Credit Card or Debit Card.
<br />Cardholder: the Person whose name is embossed on a Card and any authorized user of
<br />such Card, also referred to as a Card Member by American Express.
<br />Cardholder Information: the data contained on a Card, or otherwise provided to you,
<br />that is required by the Card Organization or us in order to process, approve and/or settle a
<br />Card transaction, including the names, addresses and Card account numbers of
<br />Cardholders.
<br />Card Organization: any entity formed to administer and promote Cards, including
<br />MasterCard Worldwide (MasterCard), Visa U.S.A., Inc. (Visa), DFS Services LLC
<br />(Discover Network), PayPal, Inc. (PayPal), American Express Travel Related Services
<br />Company, Inc. (American Express) and any applicable debit networks.
<br />Card Organization Rules: the rules, regulations, releases, interpretations and other
<br />requirements (whether contractual or otherwise) imposed or adopted by any Card
<br />Organization and related authorities, including those of the PCI Security Standards
<br />Council, LLC and the National Automated Clearing House Association (including, with
<br />respect to EBTs, the Quest Operating Rules).
<br />Chargeback: a Card transaction (or disputed portion) that is returned to us by the Issuer.
<br />You are responsible for payment to us for all Chargebacks.
<br />Card Item: means sales records, credit vouchers, and similar documents and items used
<br />in connection with the processing of a Transaction, including Transaction Data.
<br />Chip Card: A Card that includes an embedded secure integrated circuit that can be either
<br />a secure microcontroller or equivalent intelligence with internal memory or a secure
<br />memory chip alone. The card connects to a reader with direct physical contact or with a
<br />remote contactless radio frequency interface. With an embedded microcontroller, chip cards
<br />have the unique ability to securely store large amounts of data, carry out their own on -card
<br />functions (e.g., encryption and mutual authentication) and interact intelligently with a
<br />card reader.
<br />Clover: Clover Network, Inc.
<br />Clover Service: the website associated with the Clover Service, the object code version of
<br />Clover software applications (whether owned or licensed by Clover) resident on a Device
<br />at the time we provide you with the Device and the object code version of the software
<br />that enables the applications resident on a Device at the time of provisioning, and any
<br />related updates (including software maintenance or bug fixes) that are designed to assist
<br />with the management of your business and enable payment processing at the point of sale,
<br />and any materials, documentation and derivative works released by us.
<br />Credit Card: a card bearing a valid Mark of Visa, MasterCard, Discover Network, PayPal
<br />or American Express (or any other Card Organization specified by us in writing) and
<br />authorizing the Cardholder to buy goods or services.
<br />Credit Limit: the credit line set by the Issuer for the Cardholder's Credit Card account.
<br />TD2008(ia)
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<br />August 2017 Manual T&C - CAP # 40233
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