Moneris Solutions® Corporation
IMPORTANT – PLEASE READ CAREFULLY
THESE TERMS RELATE SOLELY TO YOUR USE OF THE SITE AND THE SERVICES. THE PAYMENT PROCESSING AND OTHER SERVICES OFFERED BY MONERIS REMAIN SUBJECT TO THE TERMS AND CONDITIONS OF YOUR MERCHANT AGREEMENT WITH MONERIS, AS IT MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWSIE MODIFIED FROM TIME TO TIME (THE “MERCHANT AGREEMENT”) WHICH REMAINS IN FULL FORCE AND EFFECT. ANY CAPITALIZED TERMS USED AND NOT DEFINED HEREIN SHALL HAVE THE MEANING GIVEN TO SUCH TERMS IN THE MERCHANT AGREEMENT.
2. User Identification and Password
- "Claims" means any and all claims, demands, liability, damage, loss, suit, action, investigation, proceeding or cause of action and any and all related costs and expenses including without limitation legal fees and expenses.
- "Content" means all software, material, documentation, graphics, images, designs, plans, information and other content accessed by you and your Users on the Site or otherwise accessible through the Site and through the Services except for any data and information uploaded, transmitted or posted by you and your Users.
- "Linked Sites" means links to third party websites from the Site.
- “Merchant” means the legal entity that has entered into a Merchant Agreement with Moneris and whose Credentials are used to access the Site and the Services.
- "Representatives" means employees, officers, directors, affiliates and licensors of a party;
- "Unauthorized Use" means any abusive or fraudulent use or any use that is not consistent with these Terms or violates applicable law of Card Brand Rules and Regulations.
- "User" means your staff members to whom you have granted access to your Credentials, the Site or the Services.
- "We", "us", and "our" means Moneris Solutions Corporation.
- "You" and "Your" means the person using the Site or the Services and the Merchant that he represents.
3. Your Use of the Site and Services
- You will be assigned a store ID, a merchant number and will need to set up your own ID and password, or other credentials, to access the Site and the Services (the “Credentials”). You acknowledge and agree that your Credentials can be used to access your merchant account and to process Transactions pursuant to your Merchant Agreement or to have access to Transaction and other information related to your merchant account and your use of the Site and the Services.
- You are responsible for maintaining the confidentiality of your Credentials. You agree not to provide your Credentials to anyone else and not to permit access to the Site or the Services to anyone other than a User.
- You are solely responsible for any use of the Site and the Services by You, your Users or by any other party using your Credentials or having direct or indirect access to the Site, the Services or your merchant account through you. You will ensure that in using the Services, your Users comply with these Terms. Any such use by a third party will be deemed to be use of the Site and Services by you, whether or not done with your knowledge or consent. You will have the sole responsibility to safeguard your merchant account and Credentials and to cease any unauthorized use of your merchant account or your Credentials and you shall be solely liable for any loss, damage or expense arising from such use by a third party.
- You must take your own precautions to ensure that the process which you employ for accessing the Site and Services does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your computer system. For greater certainty, we do not accept responsibility for any interference or damage to your computer system which arises in connection with your and your Users' use of the Site or Services.
- By using the Services, you are representing to us that you have the power and authority to accept these Terms on behalf of the Merchant whose Credentials you are using and that you understand and accept the terms, conditions and risks relating to the use of the Site and the Services.
- You will ensure that your use of the Services will comply with all applicable laws (including privacy laws, anti-spam laws, etc.), Card Brand Rules and Regulations and any terms, conditions, rules, policies, procedures and technical specifications as may be provided and updated by us from time to time in respect of the Services. You further acknowledge and agree that use of the Services may be restricted or limited as a result of federal, provincial, or other applicable laws and you will act in accordance with all such restrictions and limitations.
- You will identify yourself as the merchant for all Transactions processed using the Site and the Services and you will provide customer care services and respond to any inquiries or complaints by your customers regarding your products and services and any Transactions you process.
- If you have access to and choose to use the functionality of the Site which facilitates the sending of electronic receipts or any other communication to your customers, you will ensure that you have the proper consent from any recipient before you send them an electronic receipt or any other communication using the Site. If required by applicable anti-spam laws, you will provide recipients with an unsubscribe mechanism and you will be responsible for properly managing such unsubscribe mechanism. You will not use the Site or the Services to send any marketing materials, to advertise or promote anything, to encourage participation in any commercial activity, to offer to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land, to offer to provide a business, investment or gaming opportunity, to promote a person or for any other purpose, other than for sending electronic receipts for Transactions processed by you through the Site.
- You acknowledge and agree that any transaction limits (minimums and maximums) that you may be allowed to set up for Transactions processed on the Site are only to be used to facilitate online fraud prevention and cannot be imposed as a condition of sale.
- You agree when using the Site and the Services, that you and your Users will: a. You agree when using the Site and the Services, that you and your Users will:
- Obey these Terms and all other procedures, codes of conduct and other notices we may provide;
- Promptly notify us if you learn of a security breach related to the Credentials, the Site or the Services; and
- Only use the Site and the Services for lawful purposes and for the purpose(s) for which they are intended.
- You agree not to use (or allow anyone else, including without limitation your Users, to use), directly or indirectly, the Site or the Services for any Unauthorized Use including without limitation:
- Processing any Prohibited Transactions, or in any other way violating applicable laws, Card Brand Rules and Regulations or your Merchant Agreement;
- Defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others;
- Publishing, posting, uploading, distributing, conveying or disseminating any material or information that is profane, defamatory, infringing, obscene, salacious, abusive, libellous, unlawful, deceptive or otherwise offensive or objectionable;
- Uploading, posting, reproducing or distributing any material protected by copyright, intellectual property laws, privacy or other proprietary rights unless you have obtained permission;
- Restricting, inhibiting or interfering with the ability of any person to access, use or enjoy the Services;
- Attempting to or assisting another to access, alter or interfere with the Services or another merchant's account;
- Using the Services in a manner that harms or could harm us, our affiliates or any merchant of ours;
- Engaging in, facilitating or furthering unlawful conduct or violating any applicable laws or regulations or these Terms;
- Using any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (e.g., spam);
- Using any unauthorized third party software or service to access the Services;
- Damaging, disabling, overburdening or impairing the Services;
- Reselling, redistributing or rerouting the Services or any part of the Services;
- Engaging in any conduct involving the Services that would constitute an illegal activity, criminal offence or give rise to civil liability under any local, provincial, state, federal or other law or regulation;
- Tampering with or making an unauthorized connection to the Services;
- Uploading to the Site a virus, drop dead device, lock, key, bomb, worm, Trojan-horse, trap door or other harmful, limiting destructive or debilitating feature;
- Altering, modifying, rerouting, reproducing or tampering with the Services or any part thereof; and
- Using the Services for anything other than the purpose(s) contemplated in these Terms or your Merchant Agreement.
We may, in our sole discretion, monitor your use of the Services and any content that you post, transmit or upload to the Site to determine and ensure your compliance with these Terms. We may also, in our sole discretion, review, edit, refuse to post, or remove any material or information that you post, transmit or upload to the Site. We may also disclose any of your content on the Site in order to comply with any law, regulation, order, decision, ruling, rule, investigation or requirement applicable to us or with a government request.
You may provide feedback, suggestions, comments, improvements and ideas (collectively "Feedback") to Moneris but you are not required to do so. Moneris is not required to hold such feedback in confidence. Moneris may use Feedback for any purpose without obligation of any kind. You assign all right, title, and interest in and to any Feedback that you provide to Moneris without any obligation of confidentiality, attribution, accounting, compensation or other duty to account. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant Moneris an irrevocable, non-exclusive, perpetual, world-wide, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback in connection with Moneris’ business. You forever waive and agree never to assert against Moneris, its affiliates, successors, business partners and licensees and their respective officers, directors, shareholders, employees, agents and advisors (the “Moneris Parties”
) any and all Moral Rights, as defined below, that you or your employees and subcontractors may have in the Feedback, to the extent permitted by applicable law. You agree to cause your employees and subcontractors to execute such assignments and licenses in your favor, and to irrevocably waive in writing in your favor any and all Moral Rights, as are required in each case under applicable law to grant the foregoing licenses and to effect the foregoing waivers. “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country, or under any treaty.
7. Changes to the Services
8. Intellectual Property and Confidentiality
- We may, in our sole discretion and without advance notice or liability, alter, modify and/or update the Site or the Services including any of the Content, the available features and/or any of the hardware or software that you require to access the Services. Such alterations, modifications and updates may include the addition or deletion of features, functionality, text, data and other content.
- Upon notice to you we may, when feasible, remotely update any software that is downloaded onto your computer for the Services. Such updates will occur pursuant to prompts which appear on your screen during use of the Services. Any updated version of the software furnished to you by us will be subject to all of the same Terms.
9. Material and Links on the Site
- You acknowledge that the Site, the Services, the Content and all trademarks, service marks and logos are the exclusive property of us and/or any third party credited as the provider of such materials and information. We and/or licensors will exclusively own and retain all title, ownership rights and intellectual property rights including without limitation patents, copyrights and trade secrets in and to all documentation, know how, operating processes and procedures, software and software configuration parameters and any modifications and translations thereof incorporated into or in connection with the Services and the Content. The technical procedures, processes, methods of operation and concepts which are embodied within the Services are trade secret information of us and/or our licensors. You will not have or acquire any rights or interest in the Services, the Content or the trademarks, service marks and logos except as specifically set out herein.
- You and your Users may not make any copies of the Services or the Content. You will advise your Users of the restrictions in these Terms. You agree to prevent any unauthorized copying, use and/or disclosure of the Services, the Content and any trade secret information of Moneris and our licensors. You will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by you and your Users, employees and agents and any other party that has access to the Services using your or one of your Users' Credentials.
- You agree not to lease, sell, rent, assign, sublicense, loan or otherwise transfer to any third party any of your rights under these Terms.
- You acknowledge that any software downloaded from the Site contains copyrighted and other proprietary and confidential information and material, and you will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from Unauthorized Use or disclosure
Linked Sites are provided as a convenience only. We are not responsible for the content of any Linked Site including without limitation any changes or updates made to a Linked Site. The inclusion of any link does not imply the endorsement, investigation or verification of the Linked Site or the material contained within the Linked Site.
10. Default under these Terms
- If you default or if we reasonably suspect you have defaulted under these Terms, we may immediately and without prior notice:
- Restrict, suspend or terminate your access to the Services and the Site;
- Suspend your rights under these Terms; and/or
- Take any other steps we consider necessary, including Terminating your Merchant Agreement.
- Default occurs when:
11. Disclaimer of Warranties and Passing of Title and Ownership
- You and/or your Users do not observe or act in accordance with these Terms; or
- Bankruptcy or insolvency proceedings are commenced by or against you, or you do something that allows them to be commenced.
12. Limitation of Liability
- We do not warrant the accuracy, adequacy or completeness of the Services or the Content nor do we undertake to keep the Content updated. We do not accept responsibility for any loss suffered as a result of reliance by you upon the accuracy or currency of the Content or the Services.
- You are responsible to maintain any data or information that you or your customers have uploaded, posted or transmitted to the Site. We are not responsible for the loss of any data or information you or your customers have uploaded, posted or transmitted to the Site and we have no obligation to maintain any data or information, you or your customers have uploaded, posted or transmitted to the Site.
- The Services and the Content are accepted by you and your Users "as is" and "as available". All other representations or warranties, express or implied, including any warranties of merchantability or as to correctness, quality, accuracy or reliability or as to fitness for a particular purpose and or any representations or warranties under applicable sale of goods legislation are specifically excluded and disclaimed. We do not warrant that the Services or any of the Content will meet your or your Users' requirements. Neither we nor our Representatives make any representation or warranty:
- that access to the Site or the Services will be uninterrupted or error free, and
- that security breaches will not occur with respect to any information communicated through the Site, the Services, the Internet or any common carrier communications facility. We assume no responsibility to you, your Users or any other person for the consequences of any errors or omissions. The risk as to the quality and performance of the Site, the Services and any Content is yours.
- You are solely responsible for determining and calculating which taxes apply to any goods and services you sell. We disclaim any warranty or condition that any tax tables or similar functions which may be included in the Services will meet your requirements.
- We are not engaged in rendering tax, accounting, legal or other professional advice or service. If accounting advice or other expert advice is required, the service of a competent professional should be sought. It is your responsibility to keep informed of accounting and tax changes that may affect you and to ensure that you follow these changes.
- If you choose to use any of the fraud-prevention solutions offered by Moneris (such as the Moneris Kount Services, AVS, CVD, 3D Secure, Auto Decision by Moneris or others, collectively referred to as “Fraud Tools”), you acknowledge and agree that such Fraud Tools are provided to you on an “as is” and “as available” basis. Moneris does not provide any warranty with respect to and specifically disclaims any warranties and conditions with respect to the operation of the Fraud Tools or any particular application or use thereof, whether express, implied, statutory, or otherwise, including without limitation, the implied warranties and conditions of merchantability, fitness for a particular purpose, workmanlike service, and non-infringement and any warranties that may arise from a course of dealing, course of performance or trade practice. Moneris does not warrant that the Fraud Tools will be uninterrupted or error-free. For greater certainty, Moneris is entitled at any time, and without prior notice, to interrupt your access to the Fraud Tools for any reason, including without limitation for security considerations or maintenance work. You acknowledge and agree that the Fraud Tools represent a combination of factors that refer to potential fraud indicators and do not constitute a guarantee, warranty or representation from Moneris that a particular Transaction is: (a) entered into by the actual authorized Cardholder; or (b) enforceable against the actual Cardholder. For added clarity, the Fraud Tools are provided at your own risk. Moneris shall not be liable to you for any refunds, reversals, fraud losses, Chargebacks or any other liabilities related to the Fraud Tools or any Transaction.
- You acknowledge and agree that neither we nor our Representatives will be liable to you, your Users or any other person for any Claims that may arise directly or indirectly as a result of your, your Users' or any other person's use of the Site, the Services and/or the Content including without limitation:
- any failure, termination, suspension, delay or disruption of the Site, the Services, the Internet, or any communications network, facility or equipment;
- any damages arising from your failed attempts to access the Site, the Services or to view any Content or process any Transactions;
- any damages arising from any failure to view or use the Site, the Services or transmit, post, upload any information or data to the Site, process any Transactions or from any human, machine or software errors or faulty or erroneous input by you or your Users;
- the integrity of any of the content that you or your customers post, transmit or upload to the Site or that has been downloaded from the Site; or
- any damages resulting from any delays and/or losses including without limitation any loss of data or information arising in connection with the Services provided hereunder.
- You acknowledge that all Content is being provided to you without liability on our part or our Representatives. You agree that neither we nor our Representatives will have any liability whatsoever to you, your Users or any other person as a result of any use of the Services or the Content.
- You expressly understand and agree that we and our Representatives make no representations or warranties whatsoever and have no legal, equitable, or other liability of any kind to you, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise.
- We expressly disclaim any liability whatsoever for any indirect, special, incidental or consequential cost, loss, expense, damage or liability of any nature, loss of profits or revenue, loss of data, downtime costs or business opportunities arising out of or in connection with the Services or the Content including without limitation:
- The failure of the Site or the Services to operate at any time;
- A third party's unauthorized access to the Site or the Services and/or communications transmitted over the network to or from the Site or the Services; and
- Your, your User's or any third party’s use of the Services or the Content.
In addition to the indemnity obligations in the Merchant Agreement, which remain in full force and effect, you agree to defend, indemnify, and hold harmless Moneris and our Representatives from and against any Losses or Claims to the extent arising from or relating to:
14. Personal Information
- the use of the Site or the Services by you or your Users;
- the use of your Credentials or your merchant account by any other party; or
- failure by you or any of your Users (or by any person using your or any of your Users' Credentials) to comply with these Terms.
- You hereby grant to Moneris a non-exclusive, fully-paid license and right, with the right to pass on and sub-license such license and right to our service providers and subcontractors, to collect, store, use (including to create or otherwise derive data from), handle, reproduce, transfer, disclose or transmit the information collected by the Site (including Personal Information) and other data provided in connection with the Services to: (i) provide the Services to you (including any required maintenance, technical and other support, troubleshooting, reporting, etc.), (ii) perform research and development activities and statistical analysis, and (iii) for any other purpose permitted by applicable laws.
15. Force Majeure
We will not be liable for any delay or failure to carry or make continuously available the Services including without limitation where such delay or failure is due to any cause beyond our reasonable control or the control of any of our third party providers, including without limitation, restrictions of law or regulation, labour disputes, acts of warfare or terrorism, acts of God, mechanical or electronic breakdowns, telecommunication facilities breakdowns or software bugs, errors or failures.
16. Governing Law
Your use of the Site and the Services and these Terms will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. You submit to the exclusive jurisdiction and venue of the courts of Ontario, located in Toronto, in order to enforce any provision of these Terms and for any action or suit arising out of the Services.
17. Severability and Waiver
Each of the provisions contained in these Terms is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction will not affect the validity or enforceability of any other provision in these Terms.
You agree that our conduct, delay, actions or failure to enforce any of the terms and conditions of these Terms does not waive any of our rights under these Terms or change your obligations under these Terms.
18. Assigning Your Rights or Obligations
You cannot assign all or part of your rights or obligations under these Terms without first getting our written approval. However, we can assign any of our rights and obligations under these Terms by telling you about the assignment in writing. These Terms bind you, your successors and your permitted assigns.
19. Providing notice
Any notice given under these Terms, either by you or by us, will be sent by regular mail or fax. If there is a postal disruption, notices will either be faxed or hand delivered.
Notice shall be given to us at:
Moneris Solutions Corporation
PO Box 219, Station D
Fax number: 416.734.1153
Attention: Legal Department
Notice will be given to you at the address shown in our records.
20. For Residents of Quebec
It is agreed that the express wish of the parties is that these Terms and any related documents be drawn up and executed in English. Il est la volonté expresse des parties que cette convention et tous les documents s'y rattachant soient rédigés en anglais.
MONERIS, MONERIS & Design and Moneris Solutions & Design are registered trademarks of Moneris Solutions Corporation