This Moneris Go Marketplace App Agreement (this “Agreement”) sets out additional terms and conditions that apply when you access the Moneris Go Marketplace (the “Marketplace”) or use any application (each, an “App”) made available for use on a device that meets Moneris’ technical and security specifications and through which Moneris provides access to the Marketplace (an “Authorized Device”).
Terms and conditions for Apps developed or otherwise made available on behalf of or by any third party other than Moneris or its affiliates on the Marketplace (“Third-Party Apps”) are set out in Part of this Agreement. Terms and conditions for the Marketplace and for Apps developed by Moneris and its affiliates, and made available on the Marketplace (“Moneris Apps”) and are provided in Part 2 of this Agreement, except where a Moneris App is offered under separate, product-specific terms and conditions.
Please ensure that you carefully read this Agreement, as your acceptance occurs upon your first use or access of the Marketplace or any App. To the extent of any inconsistency between the terms and conditions of this Agreement and any other agreement, the terms and conditions of this Agreement will govern with respect to the Marketplace and the subject matter of this Agreement except where an App is provided pursuant to more specific terms and conditions. Moneris may change this Agreement at any time by providing you with notice. Your continued use of the Marketplace or any App after such notification constitutes acceptance of any amendment, restatement, supplement or any other modification to this Agreement. The Marketplace and its Apps may be made available to you by Moneris in connection with other Moneris solutions or components, which may be subject to separate terms and conditions. It is your responsibility to ensure you are aware of and comply with the terms and conditions associated with such Moneris solutions or components.
1. Use of Third-Party Apps. Third-Party Apps are not developed by Moneris and are made available to you for your use subject to their respective end user license agreements or other similar license agreements, terms and conditions, instructions and other documentation or requirements (“Third-Party Terms”). You and your users are solely responsible for complying with any such Third-Party Terms, which may include fees. The availability of Third-Party Apps on the Marketplace does not imply any endorsement by Moneris, and Moneris does not control or guarantee the functionality, security, or compliance of such Apps. Any use of Third-Party Apps is entirely at your own risk and any fees associated with the installation, access, or use of a Third-Party App are determined, charged, and collected separately by the owner of the Third-Party App (the “Developers”).
2. Warranty. Moneris does not provide any warranties for the Third-Party Apps and they are provided to you “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 Third-Party Apps will meet your or your users' requirements. Neither we nor our representatives make any representation or warranty: (i) that access to the Third-Party Apps will be uninterrupted or error free; and (ii) that security breaches will not occur with respect to any information communicated through or because of the Third-Party Apps, 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. You expressly understand and agree that we make no representations or warranties whatsoever and have no legal, equitable, or other liability of any kind to you in connection with the Third-Party Apps, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise.
3. Limitation of Liability
a) Notwithstanding anything in this Agreement, you acknowledge and agree that we will not be liable to you, your users, customers or any other person for any claims that may arise directly or indirectly as a result of your, your users', your customers’ or any other person's use of the Third-Party Apps including without limitation: (i) any failure, termination, suspension, delay or disruption of the Third-Party Apps, the Internet, or any communications network, facility or equipment; (ii) any damages arising from your failed attempts to access or use the Third-Party Apps; (iii) any damages arising from any failure to view or use the Third-Party Apps or transmit, post, upload any information or data to the Third-Party Apps, or from any human, machine or software errors or faulty or erroneous input by you or your users; (iv) the integrity of any of the content that you or your customers post, transmit or upload to the Third-Party Apps or that has been downloaded from the Third-Party Apps; (v) any damages resulting from any delays and/or losses including without limitation any loss of data or information arising in connection with the Third-Party Apps; or (vi) any damage to devices, systems or networks, including the device on which you install or use the Third-Party App, arising from your use or installation of the Third-Party App. We are not responsible for the loss of any data or information you or your customers have uploaded, posted or transmitted to the Third-Party Apps and we have no obligation to maintain any data or information, you or your customers have uploaded, posted or transmitted to the Third-Party Apps.
b) 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 Third-Party Apps.
4. Responsibilities and Rights
a) You are solely responsible for any fees incurred in connection with the installation and use of a Third-Party App, including any in-App access or usage fees or charges.
b) You are solely responsible for any damage that may result from your installation or use of a Third-Party App.
c) You do not own and may be required to return your Authorized Device and Moneris shall have no obligation to ensure your continued access to any App or any App-related data stored on your Authorized Device and you will be responsible for downloading or backing up any such data and for ensuring that any such data is deleted and removed from the Authorized Device prior to returning it to Moneris.
d) Third-Party Apps and their Developers may collect and use data entered by you or your customers into the App, including information about the users of the Third-Party App and your Authorized Device, technical information about the device and network, and other information, in order to provide the services or functionality related to the App (or as you otherwise agree to). You are solely responsible for this data and Moneris has no responsibility to you or any other person in connection with such collection or use of data. You further agree that Moneris and Third-Party App Developers may exchange certain information about your use of Third-Party Apps, including information about your use of the App and the fees you pay to the Developer.
e) Moneris may require and/or perform certain changes to your Authorized Device, including for the purposes of security and maintenance, and you acknowledge that such changes may interrupt of prevent the use of any or all Apps. Moneris may also, at any time and without prior notice, restrict or prevent access to Apps on your Authorized Device, and shall have no responsibility to you or any other person as a result.
1. Definitions
a) “Claims” means any and all claims, demands, liabilities, damages, losses, suits, actions, investigations, proceedings or causes of action and any and all related costs and expenses, including without limitation reasonable legal fees and expenses.
b) “Content” means all software, materials, reports, documentation, graphics, images, designs, plans, information and other content accessed by you on an App or otherwise accessible through the App, other than User Content and Merchant Data.
c) “Merchant Data” means any data or information that you or your Users enter into an App, including, without limitation, information about your products, inventory, shipping methods, customers or clients and about your Users, which may, for certainty, include Personal Information.
d) “Personal Information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
e) “Representatives“ means employees, officers, directors and affiliates of a party.
f) “Unauthorized Use” means any abusive or fraudulent use or any use that is not consistent with this Agreement or violates applicable law, and includes those uses set forth in Section 7 (Conduct) below.
g) “User” means (i) you and your personnel, employees, consultants, contractors or Representatives, and (ii) your customers, patrons, clients, accountholders, website visitors or other third parties, in each case that accesses or uses an App.
h) “User Content” means any information, materials, trademarks, service marks, logos, graphics, images, designs, plans, information, audio, video, and audio-visual materials and other content uploaded, entered or provided into an App by you or your Users.
2. License
a) Subject to your compliance with this Agreement and your Moneris Merchant Agreement (the “Merchant Agreement”), we grant to you a revocable, non-exclusive, non-transferable, non-assignable, limited license to use Moneris Apps for download to, or access from, your Authorized Devices, solely in accordance with this Agreement and your Merchant Agreement. Moneris Apps are licensed and not sold to you by Moneris and Moneris and its licensors reserve all rights not expressly granted to you in this Agreement.
b) You acknowledge and agree that Moneris and/or its licensors own all legal right, title and interest in and to Moneris Apps, including without limitation, any copyright, trademark, patent and trade secret rights that exist therein. You will not, directly or indirectly:
i) copy Moneris Apps or disclose or distribute any Moneris App to a third party;
ii) rent, lease, lend, sublicense, assign or transfer any Moneris App to a third party;
iii) use any Moneris App to operate a service bureau or use its functionalities to provide business services to a third party;
iv) remove, alter or destroy any proprietary, trademark or copyright markings of confidentiality placed upon or contained within Moneris Apps; or
v) modify, translate, reverse engineer, decompile or disassemble any Moneris App or otherwise derive the source code from any Moneris App or any component thereof or create derivative works that are based on, copy or integrate any Moneris App.
c) You acknowledge and agree that Moneris and its licensors may, at any time change, suspend, remove or disable access to Moneris Apps or impose limits on the use of any or all Moneris Apps or the Marketplace without notice. Without limiting any other provision of the Merchant Agreement or this Agreement, in no event will Moneris be liable for the modification, limitation, removal of or disabling of access to any Moneris App.
d) You agree that the rights granted to you in this Section 2 will terminate automatically without notice from Moneris upon your failure to comply with this Agreement or your Merchant Agreement. Upon the termination of this license, you agree to cease all use of the Marketplace and its Apps.
e) You agree to strictly follow any instructions that Moneris provides to you from time to time in connection with use of the Marketplace or Moneris Apps, including, without limitation, any instructions contained in the documentation related to the Marketplace or Moneris Apps. In the event Moneris notifies you of, or provides any modifications to, Moneris Apps or the Marketplace, you agree to immediately install and use any applicable patches and fixes upon receipt of same from Moneris.
f) You agree that Moneris has no obligation to provide training, support, maintenance, or other assistance for the Moneris App except as may be set out in this Agreement. You further agree that it is your responsibility to provider customer care and support services and to respond to any inquiries or complaints by your customers regarding the products and services you provide or manage using Moneris Apps.
3. Usage Monitoring. Moneris may, but has no obligation to, monitor your use of Moneris Apps, Authorized Device(s) and any User Content to (i) monitor, detect and address any usage, availability, performance or security issues; and (ii) determine and ensure your compliance with this Agreement. We may also, in our sole discretion, review, edit, refuse to post, or remove any User Content that you post, transmit or upload to Moneris Apps. We may also disclose any User Content or Merchant Data on Moneris Apps in order to comply with any law, regulation, order, decision, ruling, rule, investigation or requirement applicable to us or with a government request.
4. User Content and Merchant Data License
a) You grant Moneris a non-exclusive, perpetual, world-wide, fully paid-up and royalty-free license to copy, store, reproduce, modify, adapt, re-publish, display and otherwise use the User Content and Merchant Data, for the purposes of providing the Marketplace and Moneris Apps to you.
b) You are solely responsible for the accuracy and correctness of any User Content or Merchant Data that you or your Users enter into the Moneris App. You represent and warrant to us that: (i) you have all permissions, license, rights and consents necessary to provide to Moneris the User Content and Merchant Data and use it in connection with the Marketplace and Moneris Apps; (ii) the User Content will not infringe, violate or otherwise conflict with any intellectual property right, or any right of publicity or privacy, of any third party; and (iii) you will not provide or upload to the Moneris App any User Content or Merchant Data that violates this Agreement, including, without limitation, Section 7 (Conduct) below.
5. Fees. You agree to pay any fees incurred for or through Moneris Apps. You further agree that we may debit your bank account or otherwise collect the fees referenced above in accordance with the terms of your Merchant Agreement. In the event that any such debit cannot be processed, you will immediately pay us the amount owing together with applicable interest.
6. Credentials and Responsibility for Your Users
a) If you are assigned and/or set up your own ID and password (or other credentials) to access a Moneris App or Marketplace (the “Credentials”), you are solely responsible for any use of the Moneris App or Marketplace by you, the Users and by any person using the Credentials or otherwise accessing your account. You will ensure that in using Moneris Apps or the Marketplace, you and the Users comply with this Agreement. Any use of Moneris Apps or the Marketplace by a third party using the Credentials will be deemed to be use of the Moneris App by you, whether or not done with your knowledge or consent. You will have the sole responsibility to safeguard the Credentials and to cease any unauthorized use of your account or the Credentials and you shall be liable for any loss, damage or expense arising from such use by a third party.
b) You will immediately notify us in the event that you become aware of or suspect (i) that the Credentials are being used or accessed in an unauthorized manner or by any person other than the appropriate User; (ii) that any person is using the Moneris App for an Unauthorized Use; or (iii) that any person is using a Moneris App in contravention of this Agreement.
7. Conduct
a) You will ensure that the use of Moneris Apps or the Marketplace by you and your Users complies with all applicable laws and regulations (including those relating to privacy, the handling of Personal Information and anti-spam) 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 Moneris Apps or the Marketplace. You further acknowledge and agree that your and your Users’ use of any Moneris App or the Marketplace may be restricted or limited as a result of federal, provincial, or other applicable laws or regulations and you will act in accordance with all such restrictions and limitations.
b) You agree not to use (or allow anyone else to use), directly or indirectly, the Marketplace or any Moneris App for any unauthorized use including without limitation:
i) Defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others;
ii) Publishing, posting, uploading, distributing, conveying or disseminating any material or information that is profane, defamatory, infringing, obscene, salacious, abusive, libelous, unlawful, deceptive or otherwise offensive or objectionable;
iii) Uploading, posting, reproducing or distributing any material protected by copyright, intellectual property laws, privacy or other proprietary rights unless you have obtained permission;
iv) Using any Moneris App to sell, offer for sale or advertise counterfeit goods;
v) Restricting, inhibiting or interfering with the proper functioning of any Moneris App or Marketplace;
vi) Attempting to or assisting another to access, alter or interfere with any Moneris App, Marketplace, or another organization’s account;
vii) Using any Moneris App or Marketplace in a manner that harms or could harm us, our affiliates or any merchant of ours;
viii) Using any Moneris App as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (e.g., spam);
ix) Using any unauthorized third-party software or service to access any Moneris App or the Marketplace;
x) Damaging, disabling, overburdening or impairing the Marketplace or any Moneris App;
xi) Reselling, redistributing, altering, modifying, reproducing, tampering with or rerouting the Moneris App or the Marketplace;
xii) Engaging in any conduct involving the Moneris App or Marketplace 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;
xiii) Tampering with or making an unauthorized connection to the Moneris App or Marketplace;
xiv) Reverse-engineering, decompiling, disassembling or creating derivative works of the Moneris App or Marketplace;
xv) Uploading to the Moneris App or Marketplace a virus, drop dead device, lock, key, bomb, worm, Trojan-horse, trap door or other harmful, limiting destructive or debilitating feature; and
xvi) Using the Marketplace or any Moneris App for anything other than the purpose(s) contemplated in this Agreement.
8. Changes to the Marketplace and Moneris Apps
a) We may, in our sole discretion and without advance notice or liability, alter, modify and/or update any Moneris App or the Marketplace including any of the Content, the available features and/or any of the hardware or software that you require to access the Moneris App. Such alterations, modifications, updates and updates may include the addition or deletion of features, functionality, text, data and other content, including removal or suspension of Marketplace or any Moneris App.
b) Upon notice to you we may, when feasible, remotely update any Moneris App that is downloaded onto your Authorized Devices or the Marketplace, including for the purposes of maintenance, patching or upgrading any Moneris App or the Marketplace. Any updated version of a Moneris App or the Marketplace furnished to you by us will be subject to this Agreement. You agree to perform or complete such updates.
c) You acknowledge and agree that we may interrupt the availability of the Moneris App or any or all of its contents at any time, including for the purposes of repair or maintenance. We may make reasonable efforts to provide you with advance notice of such interruption, provided that in certain instances, including emergency maintenance, such notice will not be possible. You will immediately notify us if you become aware or suspect that there has been any security incident concerning a Moneris App, the Credentials, or the Marketplace, including any unauthorized access to or use or misappropriation of Merchant Data or User Content.
9. Functionalities Regarding Taxes and other Regulated Activities
a) Moneris Apps may offer functionalities that may relate to activities prescribed or regulated by applicable federal and provincial laws and regulations, such as the application of sales tax to transactions with your customers, the sending of electronic messages to customers and other recipients, and the advertising and sales of regulated products or services (“Regulated Activities”).
b) You are solely responsible for your engagement in any Regulated Activities and your compliance with all applicable laws and regulations. We disclaim any representation or warranty that your use of Moneris Apps will enable or ensure your compliance with applicable laws and regulations or meet your requirements in respect of any Regulated Activity. You understand that you may need to obtain independent legal advice about your obligations under applicable laws and regulations and that we cannot provide you with such legal advice.
c) Without limiting the foregoing, you expressly assume all responsibility for the following:
i) Application of Sales and other Taxes. You are liable and responsible to ensure the correct applicable federal or provincial taxes, including goods and services, harmonized sales, Quebec sales and retails sales taxes (collectively, “Sales Tax”) are charged by you to your customers. You must determine whether and what Sales Taxes to apply to sales of your products and services, are responsible for obtaining and maintaining registration with the appropriate government taxing authority. You are responsible for determining and collecting any applicable import or export taxes, customs or duties in connection with your sale, rental or shipment of your products or services. You are responsible to ensure that applicable invoices or receipts meet the necessary documentary requirements established by the applicable law. In the event that you incur a tax liability as result of the products or services sold to their customers, you will indemnify Moneris and its affiliates for all taxes, interest and penalties which may be assessed by any taxing authority that arise from the sale of your products and services.
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. In addition, certain tax authorities may require you to report sales, taxation, tip and other transaction-related information to them using devices or solutions certified by such tax authorities. You are responsible for ensuring that the devices and solutions that you use in connection with such reporting meet all applicable requirements and certifications.
Moneris Apps may assist you by presenting suggested tax amounts based on information you enter into the Moneris App. These suggestions are subject to and limited by the paragraphs above. You acknowledge and agree that we do not guarantee the accuracy of this information for your purposes and that you remain responsible for determining any and all applicable Sales Tax and other amounts. You should review any information suggested by the Moneris App to determine if it accords with your requirements.
ii) Regulated Products. You are responsible for determining and complying with the laws, regulations and any other requirement applicable to your sale of alcohol and other regulated products, including, without limitation, any licensing requirements and age-related restrictions and any import or export restrictions that may be applicable to you.
iii) Sending Electronic Messages. You are responsible for determining and complying with all laws and regulations relating to the sending of email, SMS and other electronic messages to recipients, including, without limitation, Canadian Anti-Spam Legislation (CASL) and other anti-spam laws. If required by applicable laws and regulations, you will ensure that you have and record the proper consent from any recipient before you send them an electronic message using a Moneris App. Messages sent from Moneris Apps may be effected through our networks, systems, domains and/or telephone numbers and are sent on your behalf in our capacity as service provider to you. You agree not to use Moneris Apps to send unsolicited commercial electronic messages, or to distribute 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, or to promote a person that does any of the foregoing.
10. Intellectual Property and Confidentiality
a) You acknowledge that the Marketplace, Moneris Apps, the Content (other than the User Content) and all trademarks, service marks and logos contained in or accessible to you via the Marketplace or Moneris Apps and all intellectual property rights relating thereto are the exclusive property of us and/or any third party credited as the provider of such materials and information. We and/or our licensors 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 Moneris App and the Content. The technical procedures, processes, methods of operation and concepts which are embodied within Moneris Apps and the Marketplace are the intellectual property of us and/or our licensors. You will not have or acquire any rights or interest in the Marketplace, Moneris Apps, the Content or the trademarks, service marks and logos except as specifically set out herein.
b) You acknowledge that any software related to the Marketplace and Moneris Apps 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.
c) If a third party believes that you are infringing their intellectual property rights, they may submit a notice to us, and we may remove or disable access to the User Content claimed to be infringing.
11. Termination and Effect of Termination
a) We may immediately and without prior notice restrict, suspend or terminate your access to the Marketplace and Moneris Apps upon the occurrence of any of the following: (i) if you breach or if we suspect you have breached this Agreement; (ii) such restriction, termination or suspension is required by law or regulation or a court or other authority; (iii) Your continued use of or access to the Marketplace or Moneris App poses a level of risk, including, without limitation, security or privacy risk, to Moneris or any third party; (iv) you breach or we suspect you have breached the terms and conditions of any other agreement between us and you, including your Merchant Agreement; or (v) your Merchant Agreement expires or is terminated.
b) Upon termination of this Agreement for any reason, (i) you and your Users will immediately discontinue your use of the Marketplace and Moneris Apps (except as set forth below); and (ii) Moneris has no further obligations to retain any information or data related to your use of the Marketplace and Moneris Apps, including any Merchant Data and User Content. Unless prohibited by applicable law, following termination of this Agreement we will use commercially reasonable efforts to retain the Merchant Data and User Content for a period of 60 days, or such other period as we may agree to in writing, in order to allow you to retrieve any Merchant Data or User Content which you may require after the termination. During such period, your obligations under this Agreement regarding Merchant Data and User Content will remain in effect. You acknowledge and agree that after this 60 days’ period, the Merchant Data and User Content may be permanently deleted by Moneris and may no longer be available to you.
12. Disclaimer of Warranties
a) We do not warrant the accuracy, adequacy or completeness of the Marketplace, any Moneris App or Content nor do we undertake to keep any of the foregoing updated. We do not accept responsibility for any loss suffered as a result of reliance by you upon the accuracy or currency of the Marketplace or any Moneris Apps.
b) We are not responsible for the loss of any User Content, Merchant Data or other data or information you, your Users or your customers have uploaded, posted or transmitted to the Moneris App and we have no obligation to maintain any data or information, you or your customers have uploaded, posted or transmitted to the Moneris App. You are responsible for maintaining any copies or backups of such data that you may determine to be necessary or desirable.
c) The Marketplace, Moneris Apps and the Content are accepted by you “as is” and “as available”. All other representations or warranties, express or implied, including any warranties of merchantability, non-infringement, or as to correctness, quality, security, accuracy, completeness of information or reliability or as to fitness for a particular purpose and or any representations or warranties under applicable sale of goods legislation or arising from a course of dealing or trade practice are specifically excluded and disclaimed. We do not warrant that the Moneris App or any of the Content will meet your requirements, including requirements that you may have due to your obligations under applicable laws and regulations. Neither we nor our Representatives make any representation or warranty (i) that access to any Moneris App will be uninterrupted or error free, or (ii) that security breaches will not occur with respect to any information communicated through any Moneris App, the Internet or any common carrier communications facility. We assume no responsibility to you or any other person for the consequences of any errors or omissions.
13. Limitation of Liability
a) You acknowledge and agree that neither we nor our Representatives will be liable to you, any User 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 Marketplace, any Moneris App (including any Content), including without limitation: (i) any failure, termination, suspension, delay or disruption of the Marketplace, Moneris App, Internet, or any communications network, facility or equipment; (ii) any damages arising from your or your Users’ failed attempts to access the Marketplace or Moneris App; (iii) any damages arising from any failure by you or your Users to view or use the Moneris App in, or transmit, post, upload any information or data to the Moneris App in accordance with the Moneris App’s documentation and/or instruction from us, or from any human, machine or software errors or faulty or erroneous input by you; (iv) the integrity of any of the content that you or your Users transmit or upload to the Moneris App or that has been downloaded from any Moneris App or Marketplace; or (v) any damages resulting from any delays and/or losses including without limitation any loss of data or information arising in connection with the Moneris App or Marketplace.
b) 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.
c) To the fullest extent permissible by applicable law, we expressly disclaim and shall have no liability whatsoever for any direct, 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 Marketplace, any Moneris App or Content including without limitation: (i) the failure of the Moneris App to operate at any time; (ii) any unauthorized access to the Moneris App and/or communications transmitted over the network to or from the Moneris App; and (iii) your or any third party’s use of the Moneris App or the Content. In no event shall our aggregate liability to you exceed the total fees paid by you to Moneris for your use of and access to the applicable Moneris App during the three (3) months immediately prior to the date of the event giving rise to such liability (such amount, for clarity, excluding any other fees paid pursuant to the Merchant Agreement, such as payment transaction fees and equipment fees). You acknowledge that this is a fair allocation of the risks and responsibilities under this Agreement and, to the extent permissible by applicable law, you waive any claim that the disclaimers of liability contained in this paragraph deprives you of an adequate remedy.
14. Indemnity. You agree to defend, indemnify, and hold harmless Moneris and our Representatives and affiliates from and against any losses or Claims to the extent arising from or relating to (i) the use of the Marketplace, any Moneris App, or Content by you or your Users; (ii) the use of your or your Users’ Credentials by any other party; (iii) failure by you, your Users or any person using your Credentials to comply with this Agreement; and (iv) your User Content and Merchant Data; (v) violation of any applicable laws or regulations. For certainty, you will indemnify us from and against any Claims by any of your customers or clients related to your use of the Marketplace, any Moneris App or Content, or any Claims arising from any regulatory or governmental investigations, fines, penalties or other liabilities related to your use of the Marketplace or Moneris Apps.
15. Personal Information
a) Without limiting anything else herein, you acknowledge that certain information collected, used and disclosed in connection with Moneris Apps or Marketplace may constitute Personal Information and you agree that any such Personal Information is also subject to our privacy statement, as it may be amended from time to time, which can be found at the following link: https://www.moneris.com/en/legal/privacy-statement.
b) Personal Information that you or your Users enter into or make available via the Marketplace and Moneris Apps may be used by Moneris to make the Marketplace and Moneris Apps and its functionalities available to you, your Users and your customers. These functionalities may include automated decision-making tools that enhance your, your Users’ and your Customers’ experience. You acknowledge and agree that Moneris and its agents, service providers, and subcontractors may access and store the Personal Information you provide, in or from locations throughout Canada and outside of Canada. Personal Information relating to residents of Quebec may be transferred and stored outside of Quebec. Additionally, you understand that we may use reasonably de-identified formats of such information for purposes including, but not limited to, the provision, maintenance, management and improvement of Moneris Apps and Marketplace, and for aggregated and statistical analysis and reporting.
c) Any Personal Information that you, your Users or your customers enter, or allow to be entered, into a Moneris App is accessed, collected, handled and disposed of by Moneris as a service provider to you, and you hereby consent to such uses, which will be subject to the terms of the Privacy Statement and this Agreement. You acknowledge and agree that it is your responsibility to ensure that such Personal Information is collected, used and disclosed to us in compliance with all applicable laws, rules and regulations and your applicable stated privacy policies, and that you are responsible for (i) providing all relevant disclosures and transparency statements to Users, customers and any other persons whose Personal Information you submit to a Moneris App, and (ii) obtaining all necessary consents, rights and authority to collect and disclose such Personal Information to us to be used by us, and any of our agents, service providers or subcontractors as set forth in this Agreement and/or for the purpose of providing Moneris Apps.
16. Feedback. You may provide feedback, suggestions, comments, improvements and ideas (collectively “Feedback”) to us but you are not required to do so. We are not required to hold such feedback in confidence. We 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 us 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 to us and our affiliates an irrevocable, non-exclusive, perpetual, world-wide, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback in connection the business of us and our affiliates. 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 any and all moral rights or other similar rights that you or your employees and subcontractors may have in the Feedback, to the extent permissible under applicable law.
17. Force Majeure. We will not be liable for any delay or failure to carry or make continuously available the Marketplace or any Moneris App 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.
18. Governing Law. Your use of the Moneris App and this Agreement 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 this Agreement and for any action or suit arising out of the Marketplace and Moneris App or your use thereof.
19. Survival. The following provisions of Part 2 and any others that by their nature are intended to survive shall survive any expiration or termination of this Agreement: Sections 5, 6, 9, 10, 11, 12, 13, 14, 15, 16.
20. Severability and Waiver. Each of the provisions contained in this Agreement 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 this Agreement. You agree that our conduct, delay, actions or failure to enforce any of the terms and conditions of this Agreement does not waive any of our rights under this Agreement or change your obligations under this Agreement.
21. Assigning Your Rights or Obligations. You cannot assign all or part of your rights or obligations under this Agreement. However, we can assign any of our rights and obligations under this Agreement. This Agreement binds any permitted successors and assigns.
22. For Residents of Quebec. It is agreed that the express wish of the parties is that this Agreement 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.