You shall pay the fees set
forth in the Fee Schedule (the “Fees”) provided to You by MerchantRMS
and/or, if applicable, a Merchant Service Provider in accordance with
the payment terms in the Agreement. The MerchantRMS Fee Schedule is
hereby incorporated into this agreement by reference.
You represent, warrant, and
covenant to MerchantRMS that Your use of the MerchantRMS System and
any information gathered by You in connection with the MerchantRMS System:
a) will be fully compliant with all applicable local, state and federal
laws, rules, and regulations; b) will be in accordance with all applicable
user guides, technical specifications, and other documentation as updated
by MerchantRMS from time to time; and c) will not be (by You or others)
used for any purpose other than in connection with the MerchantRMS System
and in a manner described in the documentation.
You understand, acknowledge,
and agree that you will be solely responsible for ALL transactions processed
through your Payment Gateway Account, regardless of whether such transactions
have been screened by the MerchantRMS System. You understand, acknowledge,
and agree that You will be solely responsible for Your use of the MerchantRMS
System including, without limitation:
Configuring, maintaining and
updating, as You deem necessary, the settings for your MerchantRMS account;
With respect to each Transaction
processed via your Payment Gateway Account, and regardless of any data,
analysis, or information generated or not generated by the MerchantRMS
System, determining the appropriate action (i.e., approve, void, decline,
reject) for each such Transaction.
is intended to collect certain data (the “Data”) from Your Clients
(“End-User”), which will be added to the centralized database owned
and maintained by MerchantRMS (the “Database”). You and Your
Company shall have a standard End-User Agreement which each End-User
must consent to. You and Your Company are responsible for ensuring
that each and every End-User consents to the collection of Data.
Term of the agreement between You and MerchantRMS, Client shall have
the non-exclusive right to access information from the Database in accordance
with MerchantRMS procedures (as modified from time to time), subject
to this Agreement, for the purpose of attempting to identify suspicious
and/or high-risk transactions.
Client warrants that it: (a)
has the right to enter into this Agreement; (b) will not use, or make
available the Software or Data for or in support of, directly or indirectly,
any other person or enterprise, (c) will not use the software for any
other purpose other than fraud detection, and (d) will not distribute,
or make available the Software or Data, directly or indirectly, to any
other person or enterprise.
You shall Iindemnify and save
harmless MerchantRMS System from all actions, suite, costs, losses,
charges, demands and expenses for and in respect of any such non-payment,
or non-observances or non-performance, or act performed by You or anyone
at Your Company, with respect to any third parties, which includes,
but is not limited to any actions commenced by the End-Users.
MerchantRMS has and will retain all ownership rights, including but
not limited to any copyright, patent, trade secret,
trademark or any other proprietary and intellectual property rights,
in and to the Software, the Services, the Data and the Database, including
but not limited to any components thereof, any information contributed
to the Database as a result of the performance of this Agreement and
any adaptation of the Software to meet Client’s specifications. MerchantRMS
reserves the right to make changes in the Services and the Software,
including operating procedures and type of equipment.
may terminate this Agreement if any of the following events occur:
(i) the other party materially breaches this Agreement (after receiving
written notice of such breach and 30 days opportunity to cure);
(ii) this Agreement is in violation of applicable state, federal, municipal,
provincial or international law, or the applicable law in the respective
jurisdiction of Your Company; or (iii) the
other party becomes insolvent, enters into bankruptcy or other similar
proceedings, or attempts to make an assignment for the benefit of creditors.
If Client receives a notice of an increase in Fees in accordance with
Section 3, Client shall have the right to elect to terminate this Agreement
90 days after receiving such notice.
TOTAL CUMULATIVE LIABILITY TO CLIENT UNDER THIS AGREEMENT OR ARISING
FROM THE SOFTWARE OR THE SERVICES SHALL BE LIMITED TO AN AMOUNT EQUAL
TO ALL FEES PAID BY CLIENT TO MERCHANTRMS DURING THE PRIOR THREE (3)
MONTHS. Client releases MerchantRMS from all obligations, liability,
claims or demands in excess of the limitation.
MerchantRMS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
ECONOMIC OR PUNITIVE DAMAGES, OR LOSS OF PROFIT EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Client shall pay all sales
and use and all other taxes arising from the use of the Software, provided
that the parties shall bear their own income taxes.
YOU UNDERSTAND, ACKNOWLEDGE
AND AGREE THAT MERCHANTRMS SYSTEM IS PROVIDED TO YOU BY MERCHANTRMS
“AS IS” AND THAT MERCHANTRMS DOES NOT REPRESENT OR WARRANT THAT
THE MERCHANTRMS SYSTEM OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL
PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL
BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE,
OR ERROR-FREE, AND THAT YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR
ARISING FROM THIS AGREEMENT AND/OR THE MERCHANTRMS SYSTEM, AND MERCHANTRMS’S
SOLE LIABILITY FOR SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE
YOUR USE OF THE MERCHANTRMS SYSTEM.
You acknowledge that in addition
to MerchantRMS’s other permitted uses of the Data, MerchantRMS shall
have the right to provide Data to financial institutions, law enforcement
agencies, card associations, and Your Merchant Service Provider for
investigative or dispute resolution purposes.
The risk and security suggestions
provided to you in the documentation for the MerchantRMS System are
solely for illustrative purposes to show best industry practices, and
You shall be solely responsible for choosing the appropriate settings
and parameters for your MerchantRMS account.
If your MerchantRMS account
is terminated by You or MerchantRMS at any time, MerchantRMS shall have
the right to immediately upon termination cancel Your access to the
MerchantRMS System. It is Your responsibility to download all reports
and information prior to the effective date of any such termination.