What does TMC warrant regarding the TMC Software provided to Circle K franchisees?
Circle_K Franchise · 2025 FDDAnswer from 2025 FDD Document
2.4.1 The following is TMC's Limited Software Warranty for the TMC Software:
LIMITED SOFTWARE WARRANTY
TMC represents and warrants that upon delivery the TMC Software shall be free from significant programming errors and defects in workmanship and materials. Notwithstanding the foregoing sentence, and although care has gone into the development of the TMC Software, there is a possibility of error inherent in the production of work such as the TMC Software resulting from, among other things, statistical variability in certain estimating procedures and human factors involved in the compilation of the information. Therefore, except for TMC's gross negligence or willful misconduct, TMC shall not be liable to Franchisee for: (i) the completeness, currentness, or accuracy of the information in data bases as provided as a part of or with the TMC Software, or (ii) for any loss or injury caused, in whole
or in part, by its procuring, compiling, collecting, interpreting, communicating, or delivering of the information produced by the TMC Software. TMC does not warrant that the TMC Software will be uninterrupted or error free. Except as provided above, (a) Franchisee hereby assumes all responsibility for the use of information contained in the system; (b) Franchisee assumes the entire cost for any damages resulting from the use of the information contained in the TMC Software; and (c) Franchisee assumes all responsibility for the selection of the information used with the TMC Software to achieve Franchisee's intended results, and for Franchisee's installation of, use of, and the results obtained from the TMC Software.
2.4.2 The following is TMC's Disclaimer and Limitation of Liability for Software:
DISCLAIMER AND LIMITATION OF LIABILITY
In the event of TMC's breach of the Limited Warranty stated in Section 2.4.1 above, TMC's sole obligation and Franchisee's sole remedy, at TMC's option, shall be to (i) refund to Franchisee the Software License Fees paid to TMC by Franchisee for that portion of the term of this Agreement that the TMC Software failed to function properly, or (ii) repair or replace the TMC Software, or part thereof.
THE WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND TMC DOES NOT MAKE, AND FRANCHISEE DOES NOT RECEIVE, ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, AND TMC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Source: Item 22 — CONTRACTS (FDD page 100)
What This Means (2025 FDD)
According to Circle K's 2025 Franchise Disclosure Document, TMC provides a limited software warranty for the TMC Software. TMC warrants that the software will be free from significant programming errors and defects in workmanship and materials upon delivery. However, due to the possibility of errors inherent in software development, TMC does not guarantee the completeness, currentness, or accuracy of the information within the software's databases. TMC also is not liable for any loss or injury caused by the information produced by the TMC Software, except in cases of gross negligence or willful misconduct. TMC does not warrant that the software will be uninterrupted or error-free.
In the event of a breach of this limited warranty, Circle K franchisees have limited recourse. TMC's sole obligation, at its option, is to either refund the software license fees paid for the period the software malfunctioned or to repair or replace the defective software. This warranty is in place of all other warranties, whether express or implied, and TMC specifically disclaims any implied warranty of merchantability or fitness for a particular purpose.
Circle K franchisees also assume several responsibilities regarding the TMC Software. They are responsible for the use of information contained within the system, the costs associated with any damages resulting from its use, and the selection and installation of the software to achieve their intended results. This means franchisees need to carefully consider how they use the software and the data it provides, as they bear the risk of any issues arising from its implementation and application in their business operations.