c Point of Sale and Software Agreement (this "Agreement") is entered into by and between TMC Franchise Corporation, an Arizona corporation, with offices at 1130 West Warner Road, Tempe, Arizona 85284 ("TMC"), and «ContractName» ("Franchisee"), effective as of the Effective Date (as defined below).

1. POINT OF SALE EQUIPMENT

• 1.1 Equipment and Circle K Systems. TMC, as franchisor, has entered into a Franchise Agreement with Franchisee (the "Franchise Agreement") granting Franchisee the right to operate a convenience store (hereinafter the "Store") at a specified location (the "Premises") utilizing the Circle K operating systems, point of sale systems and trademarks (collectively, "Circle K Systems").

  • 1.1.1 Franchisee agrees to purchase or lease (for the term of the Franchise Agreement) and install on the Premises the electronic point of sale equipment and back office system as set forth on Exhibit A attached hereto and/or from time to time designated by TMC (collectively, "Equipment"), to provide for, inter alia, electronic capture and transmission of transaction data for credit and debit cards, gift cards, electronic messages, inventory management, purchase, and sales reporting, in order to maintain the operation of the Store in accordance with the terms of the Franchise Agreement and related agreements. The Equipment includes card authorization systems and integrated retail store management systems, back office system, and any other retail point of sale systems as may be required by TMC from time to time. Franchisee agrees to upgrade and replace the Equipment from time to time as required under the Franchise Agreement.
  • 1.1.2 Franchisee acknowledges that TMC is not supplying, leasing, selling, supporting or maintaining the Equipment or providing training to Franchisee related thereto and TMC only requires that the Equipment be purchased or leased from designated third-party suppliers that provide appropriate training, support and maintenance and that the Equipment comply with the technical configurations established or approved by TMC to ensure that the Equipment is compatible with the Circle K Systems. If TMC is required to configure the Equipment for Franchisee, Franchisee will be obligated to reimburse TMC for the reasonable costs and expenses of such configuration, including, but not limited to, expenses for travel and lodging.
  • 1.1.3 Any new or additional Equipment delivered to Franchisee or installed on the Premises shall become attachments, accessions, and/or accessories to the Equipment and shall be subject to the terms and conditions of this Agreement.

• 1.1.4 Franchisee agrees not to add additional hardware not designated by TMC to the Equipment, TMC Software (as defined below), and Third-Party Software (as defined below) without TMC's prior written consent.

• 1.2 Equipment Use and Maintenance. The Equipment shall be used solely for the storage and transmission of point of sale data pertaining to the Store and such other uses as may be approved in advance by TMC. Franchisee is solely responsible for ongoing maintenance and repair of the Equipment and all related hardware. Franchisee is also solely responsible for the replacement of items, including, but not limited to, ink, ribbons, invoice tickets, pin pads, cleaning cards, and papers for terminals. TMC shall not be responsible to Franchisee for any loss of funds or profits resulting from tampering with, malfunction or failure of the Equipment to operate properly. Franchisee further agrees to pay all license fees and other charges required by manufacturers and third-party software licensors for the use, operation, and maintenance of the Equipment, and all damages caused by Franchisee's negligence or misuse.

• 1.3 Equipment Warranty Disclaimer. FRANCHISEE SPECIFICALLY ACKNOWLEDGES AND AGREES THAT TMC MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING MERCHANTABILITY OR FITNESS OF USE OF THE EQUIPMENT FOR ANY PURPOSE WHATSOEVER.

• 1.4 Franchisee Default; Termination. If Franchisee defaults under the Franchise Agreement or this Agreement, TMC may, at its option, (i) if the Equipment is leased, notify Franchisee that it agrees to assume and succeed to all of Franchisee's rights under the Equipment lease for all or any part of the remaining term of such Equipment lease or, (ii) if Franchisee has purchased the Equipment, notify Franchisee that it desires to exercise its option to purchase Franchisee's interest in the Equipment for its then-current fair market value. If the parties cannot agree as to the fair market value of the Equipment, then the parties agree that fair market value shall be determined by a qualified appraiser selected by the parties.

Source: Item 22 — CONTRACTS (FDD page 100)