(ii) Security Interest. Merchant hereby grants to Harbortouch a first priority purchase money security interest in the Equipment (including any replacements, substitutions, additions,
attachments and proceeds). Merchant agrees that Harbortouch may file, on Merchant's behalf, a UCC-1 Financing Statement and/or other necessary documentation sufficient to protect
and secure Harbortouch's security interest. Merchant will promptly execute any other required documents and/or records reasonably requested by Harbortouch for the purpose of securing
Harbortouch's rights in the Equipment.
d. Taxes. Merchant shall be responsible for all sales, use, excise, stamp, documentary, value added, and ad valorem taxes, license and registration fees, assessments, fines, penalties, and similar
charges imposed on the ownership, possession, or use of the Equipment by any state, local, or federal governmental or regulatory authority and shall issue, where required and requested, a
valid tax exemption certificate to Harbortouch. Merchant will reimburse Harbortouch for any of these taxes that Harbortouch pays or advances on behalf of Merchant.
e. Merchant's Maintenance Efforts. Merchant shall maintain and protect the Equipment in good operating condition, repair, and appearance, and protect the Equipment from deterioration other
than normal wear and tear; shall use the Equipment in the regular course of its business, within its normal operating capacity, without abuse, and shall comply with all laws, regulations,
directives, requirements, and rules with respect to the use, maintenance, and operation of the Equipment and Software; Merchant shall use the Equipment and Software solely for business
purposes; shall not make any modification, alteration or addition to the Equipment or Software without the written consent of Harbortouch; shall not affix, and shall not remove the Equipment
from the Merchant Location without Harbortouch's written consent, which shall not be unreasonably withheld.
f. Equipment Condition and Return. All Equipment must be returned to Harbortouch by Merchant within the timeframes specified by this Service Agreement in good operating condition other
than normal wear and tear. Merchant will not change or remove any lettering or numbering on the Equipment. To extent permitted by applicable law, without demand or legal process,
Harbortouch and its agents may enter into the premises, including the Merchant Location, where the Equipment may be found and take possession of and remove the Equipment, without
incurring any liability for such retaking. To the extent liability arises, Merchant shall indemnify and hold harmless Harbortouch from any such liability. Any Equipment that is, in Harbortouch's
sole discretion, damaged beyond normal wear and tear or is not returned when due will result in a charge to Merchant of the full cost of the Equipment to Harbortouch.
g. Merchant Security. Merchant shall be responsible for (i) maintaining virus protection and security for all of its systems, data, and overall network access, and (ii) all risk of loss, theft, damage,
or destruction of the Equipment from any cause whatsoever after taking possession of the Equipment. Merchant acknowledges that security and access to any Equipment located on its
premises is solely Merchant's responsibility and agrees to notify Harbortouch immediately if Equipment is lost, destroyed, stolen, or taken by any other person. Merchant shall at all times remain
in compliance with the Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing
all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Merchant's sole cost and expense. Merchant shall be solely responsible for storing
and backing up Merchant's data stored on the Equipment. Harbortouch shall have no liability to Merchant for loss or destruction of Merchant's data.
h. Insurance. While the Equipment is in Merchant's possession or control, Merchant shall insure the Equipment at its own cost and expense against loss or damage from fire, theft, bodily injury,
or other casualty in an amount not less then twelve times the Total Monthly Service Fee listed on POS Exhibit A. At Harbortouch's request, Merchant shall provide a certificate of insurance to
Harbortouch naming it as a loss payee or additional insured with respect to loss of or damage to the Equipment during the Initial Term.
6. HARBORTOUCH'S RESPONSIBILITIES
a. Installation.
(i). Harbortouch Elite/Onyx POS Systems Only. Merchant shall be entitled to a one-time installation of the Equipment at the Merchant Location. Merchant must make an installation appoint-
ment with Harbortouch and confirm that appointment at least 48 hours prior to the appointment. Merchant shall be billed a $199.00 reschedule fee if (i) Merchant reschedules the installation
less than 24 hours prior to the appointment; (ii) an authorized representative of the Merchant is not available to acknowledge the installation in writing; or (iii) the Merchant Location, in
Harbortouch's reasonable discretion, is not suitable to conduct the installation (“Reschedule Fee”).
(ii). Harbortouch Elite/Onyx POS Systems Only. Merchant agrees that the installation of the Equipment must be completed within 60 days from the date the Equipment is shipped by
Harbortouch. Upon the expiration of the 60-day period, the Equipment will be deemed installed and the Install Date deemed to have occurred.
b. Equipment / Software Support and Maintenance. Harbortouch shall provide Merchant with 24 hours a day, 7 days a week remote technical support for the Equipment and Software.
Harbortouch will use commercially reasonable efforts to answer questions and resolve any problems related to the Equipment and Software, but does not guarantee resolution of the problems
reported. Harbortouch shall provide remote support to determine if the Equipment is defective and, if so, at Harbortouch's sole discretion, it will: repair Equipment, send replacement parts,
and/or replacement Equipment. Merchant must return all defective Equipment to Harbortouch within 15 days of receipt of the replacement Equipment. Merchant's failure to maintain the
Equipment as set forth in Section 5.e shall result in additional charges for service and/or replacement of the Equipment.
c. Training. Merchant shall receive complimentary access to Harbortouch's library of online training webinars. During the installation of the Equipment, Merchant shall receive a complimentary
training session. Merchant may request additional onsite training, subject to Harbortouch's approval and technician availability; additional charges may apply.
d. Software Customization. Harbortouch shall provide reasonable Software customization based on the information requested by Harbortouch and provided by Merchant. Any additional
customization after the Equipment has been shipped to Merchant is excluded from this Service Agreement and will be charged at Harbortouch's then current rate. HARBORTOUCH DOES NOT
WARRANT THAT CUSTOMIZATION WILL BE FREE FROM DEFECTS OR MISTAKES. HARBORTOUCH EXPRESSLY DISCLAIMS AND MERCHANT AGREES TO HOLD HARBORTOUCH
HARMLESS FOR ANY ERRORS IN THE EQUIPMENT AND SOFTWARE.
e. Software Updates. Harbortouch may, in its sole discretion, make Software updates available to Merchant. Merchant must install all Software updates within 30 days. Harbortouch reserves the
right not to provide support services, or charge Merchant additional fees for support, if Merchant does not install a Software update on time. Harbortouch will provide remote backup of the
Software on a regular basis. Harbortouch will use commercially reasonable efforts, in the event of Software failure, to assist Merchant in recovering Software backup files to facilitate the
successful operation of the Equipment.
f. Non-standard Support and Maintenance. Harbortouch may, in its sole discretion and for additional charges, provide services and repair, redesign, reinstall, reconfigure, or replace the
Equipment when either such services are required due to causes not attributable to normal wear and tear, including: (i) Merchant's failure to continually maintain the Merchant Location in
conformance with commercially reasonable standards; (ii) impairments in the performance of the Equipment resulting from changes to the Equipment made by Merchant or mechanical,
electrical, or electronic interconnections made by Merchant; (iii) damage caused by accidents, natural disasters, or the negligence of, or improper use or misuse of, the Equipment by Merchant;
(iv) damage or necessity of repair resulting from unauthorized maintenance by Merchant or any third party other than Harbortouch or its authorized representative; (v) damage or repair
necessitated as a result of relocation of the Equipment; (vi) change in laws or Card Association rules that require service, repair, or replacement beyond normal day-to-day maintenance; (vii)
any third-party hardware or software in conjunction with the use of the Equipment without Harbortouch's express written consent; or (viii) theft of the Equipment.
7. LIMITED SOFTWARE LICENSE
Harbortouch grants to Merchant a non-exclusive, non-transferrable, royalty free license, without the right to sublicense, to use the Software internally in conjunction with the Equipment. Harbo-
rtouch reserves all rights not extended hereunder. Merchant may not alter, reverse engineer, decompile, or disassemble the Software, or otherwise attempt to derive source code from the Software.
Merchant may not manufacture, copy, sublicense, distribute, replicate, transfer or otherwise dispose of any copies of the Software. Nothing contained in this Service Agreement shall give Merchant
any ownership interest, or title to, the Software, source code, and the related documentation. Merchant acknowledges that the performance of the Software is conditioned on Merchant providing,
at its sole cost and expense a continuously available and secure network. This license shall immediately terminate upon expiration or termination of this Service Agreement except if Merchant is
still processing transactions through a Merchant Transaction Processing Agreement with Harbortouch and is paying the Software Support Fee. This license is not a license of any trademarks, service
marks, trade names, or logos, and does not include any software other than the Software. Harbortouch reserves the right to amend or otherwise modify this license upon notice to Merchant at any
time. Using the Software after an amendment or modification takes effect constitutes acceptance of it.
8. WARRANTY LIMITATION AND DISCLAIMER.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SERVICE AGREEMENT, HARBORTOUCH DOES NOT MAKE (AND EXPRESSLY DISCLAIMS) ANY REPRESENTATIONS AND WARRANTIES IN
RESPECT OF THE EQUIPMENT, SOFTWARE, PROCESSING SERVICES, AND/OR OTHER SERVICES PROVIDED BY HARBORTOUCH UNDER THIS SERVICE AGREEMENT, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT
MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. HARBORTOUCH DOES NOT GUARANTEE THAT THE EQUIPMENT OR SOFTWARE WILL SATISFY
MERCHANT'S REQUIREMENTS, OR THAT THE OPERATIONS OF SUCH WILL BE UNINTERRUPTED OR ERROR FREE. THE EQUIPMENT, SOFTWARE, AND PROCESSING SERVICES ARE PROVID-
ED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT WILL BE WITH THE MERCHANT. SHOULD THE EQUIPMENT OR
SOFTWARE PROVE DEFECTIVE, MERCHANT, AND NOT HARBORTOUCH, ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. HARBORTOUCH SHALL NOT BE LIABLE
FOR ANY COSTS OR FOR PERFORMING ANY SERVICES HEREUNDER ARISING IN CONNECTION WITH MERCHANT'S NEGLIGENCE, ABUSE, MISUSE, OR FAILURE TO PERFORM ROUTINE
MAINTENANCE OR STANDARD OPERATING PROCEDURES.
HARBORTOUCH DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT AFTER THE INITIAL INSTALLATION OF THE EQUIPMENT AND SOFTWARE, THAT THE EQUIPMENT, SOFTWARE
OR CUSTOMER'S DATA WILL REMAIN VIRUS-FREE. MERCHANT WAIVES ANY CLAIMS HEREUNDER AGAINST HARBORTOUCH ARISING FROM MERCHANT'S FAILURE TO HAVE OR
MAINTAIN CURRENT VIRUS PROTECTION, OR FROM A FAILURE OR BREACH OF CUSTOMER'S SECURITY FOR MERCHANT'S SYSTEMS OR DATA, OR FROM ANY UNAUTHORIZED ACCESS
TO MERCHANT'S SYSTEMS. HARBORTOUCH FURTHER DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR PROBLEMS FROM MERCHANT'S DECISION TO USE A PARTICULAR INTERNET
SERVICE PROVIDER OR MERCHANT'S ABILITY TO CONNECT TO THE INTERNET. MERCHANT ACKNOWLEDGES THAT ITS ABILITY TO ACCESS DATA, RECEIVE REMOTE TECHNICAL
SUPPORT, AND OPERATE THE EQUIPMENT, MAY BE AFFECTED BY PROBLEMS WITH MERCHANT'S INTERNET CONNECTIVITY. ANY SUCH PROBLEMS ARE OUTSIDE OF HARBORTOUCH'S
CONTROL. MERCHANT WAIVES ANY CLAIMS IT MAY HAVE AGAINST HARBORTOUCH DUE TO MERCHANT'S INABILITY TO ACCESS DATA OR CONNECT TO THE INTERNET WHICH IS BASED
ON OR ARISING OUT OF ANY OF THE FOREGOING REASONS.
9. LIMITATION OF LIABILITY
HARBORTOUCH AND HARBORTOUCH'S AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, AND ASSIGNS SHALL NOT BE LIABLE TO
MERCHANT OR MERCHANT'S OWNERS, PARTNERS, SHAREHOLDERS, AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, OR ASSIGNS,
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR ECONOMIC DAMAGES (INCLUDING
THOSE ASSOCIATED WITH IMPROPER OR INADEQUATE TAXES CHARGED), OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY ARISING OUT OF THIS SERVICE
AGREEMENT, OR MERCHANT'S USE (OR INABILITY TO USE) THE EQUIPMENT OR SOFTWARE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL
THE MERCHANT BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN EXCESS OF THE FEES PAID UNDER THIS SERVICE AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY
PRECEDING THE DATE OF MERCHANT'S FIRST CLAIM OF INJURY OR DAMAGE.
IN NO EVENT SHALL HARBORTOUCH OR HARBORTOUCH'S AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, OR ASSIGNS, BE RESPONSI-
BLE FOR ANY LIABILITY OR DAMAGE INCURRED AS A RESULT OF DOWNTIME OF THE EQUIPMENT OR SOFTWARE.
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