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iii. The neglect or misuse of the EPX System or Software by Merchant, its employees or agents. <br />8.3. Limitation of Liability. Neither Bank nor EPX shall be liable to Merchant or Merchant's customers or <br />any other person for any of the following: <br />i. Any loss or liability resulting from the denial of credit to any person or Merchant's retention of <br />any Card or any attempt to do so; <br />ii. Any loss caused by a Transaction downgrade resulting from defective or faulty software <br />regardless if owned by Bank, EPX or Merchant- or <br />iii. Interruption or termination of any Services caused by any reason except for the gross negligence <br />of EPX; and in such case, any liability shall be solely that of EPX and the liability of EPX shall <br />be limited to a full or partial waiver of terminal or Software fees due under this Agreement. <br />8.4: Limitation on Damages. In no case shall Merchant be entitled to recover damages from EPX or Bank <br />which exceed the fees retained by Bank and EPX pursuant to this Agreement during the one (1) month <br />period immediately prior to the event giving rise to the claim for damages. <br />8.5. Indemnification. Merchant agrees to indemnify and hold Bank and EPX harmless from any and all <br />losses, claims, damages, liabilities and expenses, including attorneys' fees and costs (whether or not an <br />attorney is an employee of or affiliates, Bank or Bank's affiliates or EPX or EPX's affiliates) arising <br />out of any of the following: <br />i. Merchant's failure to comply with this Agreement• <br />ii. Any act or omission of Merchant; <br />iii. Merchant's failure to comply with the Manuals; <br />iv. Merchant's failure to comply with any bylaw, rule, regulation, guideline or policy of any <br />Association or Issuer; <br />v. Merchant's failure to comply with any applicable law, rule or regulation; <br />vi. Any Cardholder dispute concerning the quality, condition or delivery of any Merchant <br />merchandise or the quality of performance of any Merchant service- <br />vii. The fraud or dishonesty of Merchant or Merchant's employees, licensees, successors, agents <br />and/or assigns- <br />viii. Merchant's selection of an Internet service provider or other telecommunication services provider; <br />ix. The theft of, misuse of, damage to or destruction of any Software by Merchant; or <br />x. Card-Not-Present Transactions, unauthorized Transactions or prohibited Transactions. <br />NEITHER BANK NOR EPX SHALL BE LIABLE FOR ANY PUNITIVE, INDIRECT, SPECIAL <br />OR CONSEQUENTIAI, DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN <br />CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE SERVICES <br />TO BE PERFORMED BY BANK OR EPX PURSUANT TO THIS AGREEMENT. <br />MERCHANT ACKNOWLEDGES THAT NEITHER BANK NOR EPX HAS PROVIDED ANY <br />WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT <br />LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR <br />PURPOSE, WITH RESPECT TO ANY SOFTWARE INSTALLED OR PROVIDED BY EPX. <br />BANK HAS NO LIABILITY WITH RESPECT TO ANY SOFTWARE. NEITHER BANK NOR <br />EPX MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IlVIPLIED, <br />REGARDING THE SERVICES IT PROVIDES HEREIN. SHOULD THERE BE ERRORS, <br />OMISSIONS, INTERRUPTIONS OR DELAYS RESULTING FROM BANK'S OR EPX'S <br />PERFORMANCE OR FAILURE TO PERFORM OF ANY KIND, BANK'S AND EPX'S <br />LIABILITY SHALL BE LIMITED TO CORRECTING SUCH ERRORS IF COMMERCIALLY <br />REASONABLE. <br />9. Collection and Use of Transaction Information. <br />h?itials Page 10 of 19