Moneris Solutions® Corporation
IMPORTANT – PLEASE READ CAREFULLY.
a. Grant of License.
Some of the Developer Tools may be provided by Moneris under an open source or other third-party license and such Developer Tools will be subject to the terms of the applicable license. Moneris shall identify such Developer Tools and will make available to you the applicable open source or other third-party license terms. You acknowledge and agree to use such Developer Tools in accordance with the applicable license which shall prevail and govern your use of such Developer Tools to the extent of any inconsistencies or conflict with these Terms.
For any other Developer Tools not provided under an open source or other third-party license, subject to and in consideration of your full compliance with the Terms, Moneris grants you a revocable, non-exclusive, non-transferable, as-is, limited license to use the Developer Tools to: (i) use, reproduce, modify and create derivative works of the components of the Developer Tools solely for the purposes of developing, testing and manufacturing software programs or other solutions to be used for the Integration (the “Payment Solution”); (ii) distribute, sell or otherwise provide the Payment Solution that includes components of the Developer Tools to your end users; and (iii) sublicense such components of the Developer Tools as incorporated into such Payment Solutions to your end users subject to the limitations and restrictions set forth in these Terms. This license relates solely to Integration activities and does not grant you any rights or license to conduct or receive payment card processing and related services from Moneris nor does it grant you a certification that any Payment Solution developed by you will meet Moneris’ requirements. In order for a Payment Solution to be used by a merchant for payment card processing or related services from Moneris, the merchant must enter into a payment card processing agreement with Moneris and the Payment Solution may need to be certified by Moneris pursuant to a separate certification agreement. Neither the foregoing license nor any other provision of these Terms grant you any license or right to use and you may not use any Moneris trademarks or any other intellectual property of Moneris in any manner except as may be expressly permitted by Moneris in advance in writing.
b. Limitations on License. Except as expressly permitted under Section 1(a), you may not:
- i. use the Developer Tools for any purpose other than completing or maintaining the Integration;
- ii. directly or indirectly rent, lease, sub-license, assign, loan, sell or otherwise charge any party for access to the Developer Tools;
- iii. make any copies, republish, post, transmit, sell or otherwise distribute the Developer Tools;
- iv. remove, alter or destroy any proprietary, trademark or copyright markings or confidentiality legends placed upon or contained within the Developer Tools;
- v. use the Developer Tools in a manner that is inconsistent with the intellectual property rights that Moneris has in the Developer Tools or for purposes other than in connection with the Integration;
- vi. reverse engineer, disassemble, reconstruct, decompile or attempt to derive the source code of any software or object code furnished as part of the Developer Tools;
- vii. use the Developer Tools for any illegal, unauthorized or otherwise improper purposes, or in any manner that would breach these Terms, or breach any laws or regulations (including Payment Industry Rules, as such term is defined below) or violate any rights of third parties, or expose Moneris to legal liability in your use of the Developer Tools;
- viii. transmit any viruses, worms, defects, Trojan horses, spyware, adware or other malicious programs or code; and
- ix. restrict, inhibit, or engage in any activity that prevents any other developer from using the Developer Tools.
Changes to Site or to Developer Tools. Moneris may discontinue, modify, or change the Site, the Developer Tools, or its services and systems at any time. Such modifications may be as a result of changes in the rules or procedures of any party (and its successors and assigns) having authority over credit card, debit card or other payment systems (collectively, the "Payment Industry Rules"), a change in applicable law (including governmental policies), or as a result of a decision by Moneris in its sole discretion. Such changes may require you to update the Payment Solution at your own cost so that it remains compatible with and interfaces accurately with our systems. Moneris will have no liability or obligation to you with regard to any modifications or changes it makes to the Site, the Developer Tools, or its services or systems.
No Maintenance and Support. Moneris has no obligation to provide you with maintenance and
support for the Site and the Developer Tools.
Proprietary Rights. The Developer Tools are licensed and not sold to you by Moneris. You acknowledge that all rights, title, ownership and interest in and to any and all intellectual property rights in the Developer Tools, including, without limitation, patent, trademark, copyright and trade secret rights remain with Moneris and its licensors and that you do not have or acquire any rights, express or implied, in the Developer Tools except those rights expressly granted under these Terms. You shall retain ownership of the Payment Solution developed by you in accordance with these Terms, subject to Moneris’ ownership of any portion of the Developer Tools incorporated in the Payment Solution.
Feedback. 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.
b. You acknowledge that Moneris may, at its sole and absolute discretion, and without prior notice, suspend, cancel or terminate your account, your use or your access to this Site, or any of the Developer Tools or other services, as well as remove and delete any information or content related to this Site or one of the services (and terminate your use thereof), for any reason whatsoever, including in the event that Moneris believes that you have breached these Terms. Moreover, you acknowledge that Moneris is not accountable to you or anyone pursuant to such a suspension, cancellation or termination. Should you experience dissatisfaction with this Site or the Developer Tools or any related services, these Terms, conditions, rules, policies, guidelines or practices of Moneris in regard to the operation of this Site or any one of the Developer Tools or related services, your only remedy consists in discontinuing the use of said Site, Developer Tools or services.
a. Confidential Information. You acknowledge that you may be exposed to or acquire information in connection with your use of the Site or the Developer Tools that is proprietary or confidential to Moneris and which may be, but is not required to be, marked as “confidential”, “restricted”, “proprietary” or other similar marking (“Confidential Information”). For greater certainty, any information which is provided in the password protected areas of the Site is considered to be Confidential Information.
- b. Treatment of Confidential Information and Nondisclosure
i. You acknowledge and agree that the Confidential Information is proprietary information, intellectual property and/or trade secrets of Moneris. You shall not disclose or provide access to any Confidential Information except as permitted in Section 7(b)(iii) of these Terms.
ii. You will take appropriate steps to ensure Confidential Information is safeguarded in accordance with industry accepted best practices and standards against any loss, theft, unauthorized access, use, disclosure, copying, or modification.
iii. You may provide access to the Confidential Information only to those of your employees, advisors and consultants that: (i) have a need to access the Confidential Information solely for purposes consistent with these Terms; and (ii) have agreed in writing to substantially similar confidentiality obligations as those contained herein. You will use diligent and determined efforts to supervise those persons to whom Confidential Information is disclosed pursuant to these Terms to ensure that Confidential Information is not made available or disclosed by any such third parties.
iv. You shall not make copies or reproductions of the Confidential Information (in any medium) except in accordance with Section 1(b)(iii) of these Terms.
v. In the event that you become legally compelled to disclose any of the Confidential Information, then you shall notify Moneris immediately, so that Moneris may have an opportunity to seek a protective order or other remedy. In the event that a protective order or other remedy is not obtained, you shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
c. Return or Destruction of Confidential Information. Upon Termination, you shall promptly destroy or return to Moneris all Confidential Information in your possession.
- a. This Site may include community boards, chat rooms, blogs, forums or other similar functions (collectively, “Forums”) allowing for information sharing between Moneris and users as well as a real-time interaction between users. You acknowledge and agree that Moneris may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Forums and that these Terms will apply to you with respect to your use of the Forums regardless of where the Forums are hosted. You represent to Moneris that you have all permissions and rights required to publish the information shared on the Forums. Unless otherwise specified, Moneris in no way controls the messages, information or files posted on these Forums. Moneris however reserves the right to monitor, correct, refuse to display or delete at any time, in part or as a whole, any information or content deemed, at its sole discretion, inappropriate or contrary to the spirit of these Terms, as well as to refuse access of any user to the Site. You acknowledge and agree that any information shared on the Forums by you will become public and may be viewed by others and it is your responsibility to ensure that you do not share on the Forums any information which is confidential, personal or which for any other reasons should not be made publicly available.
- b. Users accessing the Forums shall agree to refrain from engaging in any of the following actions:
- i. preventing another user from using and enjoying the Forums, or limiting their use by another user;
- ii. using the name, image, likeness or voice of an individual without their prior consent to any end other than legitimate public information;
- iii. displaying, posting or distributing content, items, information and/or statements that could injure the reputation of Moneris or any other entity or individual, as determined by Moneris in its sole discretion;
- iv. displaying, posting or distributing content, items, information and/or statements that are illegal, threatening, abusive, slanderous, obscene, vulgar, pornographic, licentious or indecent of any nature whatsoever, or remarks that obviously hint of sectarianism, racism, hate, harassment or that encourage a conduct that would represent a breach of the law, engage civil liability or would otherwise violate a local, provincial, federal or foreign law;
- v. posting, sending or otherwise distributing information, items or content unrelated to the Forum topic or theme, or set up a link to such type of information, item or content;
- vi. making available or facilitating the reproduction, public disclosure via telecommunications or other means, publication, distribution or copy, in any way whatsoever, in part or as a whole, of the intellectual property of a third party without the latter’s prior consent; and
- vii. using a Forum for any commercial purposes whatsoever; using the available services to conduct or send any sales or purchasing solicitation, advertising or promotional material, survey, contest, pyramidal system or letter chain; sending spam, hacking, or performing any unauthorized or illegal action.
c. Each message posted on a Forum expresses the view of its author, and not necessarily the views of Moneris or any entity associated with the Forum. Moneris reserves the right to reveal the identity of any user (or whatever information we know about such user) in the event of a complaint or legal action arising from any message posted by you on a Forum. Also, Moneris does not vouch for or warrant the accuracy, completeness or usefulness of any message, and is not responsible for the contents of any message posted on a Forum. Any notes, messages, postings, ideas, suggestions, concepts or other material submitted by you via a Forum (the “Forum Postings”) will become the property of Moneris and you assign all right, title and interest in and to the Forum Postings 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 Forum Postings, you grant Moneris an irrevocable, non-exclusive, perpetual, world-wide, transferable, sublicensable, royalty-free, fully paid-up license to use the Forum Postings in connection with Moneris’ business and Moneris shall be entitled to use the Forum Postings for any type of use forever including in any media whether now known or hereafter devised. When you submit the Forum Postings to a Forum, you agree that Moneris has the right to publish the Forum Postings for any type of use as outlined above including promotional and advertising purposes. You forever waive and agree never to assert against the Moneris Parties any and all Moral Rights that you may have in the Forum Postings, 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.
Termination. Moneris may terminate your access to the Site and/or suspend or terminate your rights or licenses to use the Developer Tools (the “Termination”) at any time, without cause or prior notice. In addition, your license to use the Developer Tools will terminate automatically if you breach any of the Terms. Moneris shall not be liable to you or any third party for Termination. The terms and conditions contained in these Terms that by their nature and context are intended to survive the Termination shall survive, including, but not limited to, Section 4 (Proprietary Rights), Section 5 (Feedback), Section 7 (Confidential Information), Section 9 (Termination), Section 10 (Indemnification), Section 11 (Exclusion of Warranties and Liability) and Section 12 (General).
Indemnification. You agree to fully indemnify, defend and hold harmless the Moneris Parties from and against any claims, losses, judgments, liabilities, damages, costs and expenses (including, without limitation, reasonable legal fees), incurred by any of the Moneris Parties due to or resulting from: (a) your use of the Site or the Developer Tools; (b) your breach of these Terms; (c) the Payment Solution or the Integration; or (d) use of the Payment Solution or the Integration by merchants or their customers, including claims of intellectual property infringement, breach of privacy or violation of applicable laws arising under any of the foregoing clauses. You may not enter into any settlement that purports to bind Moneris without our prior express written authorization.
Exclusion of Warranties and Liability.
A. EXCLUSION OF WARRANTY. THE SITE, THE FORUMS AND THE DEVELOPER TOOLS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND YOU AGREE TO USE THEM ENTIRELY AT YOUR OWN RISK. MONERIS DOES NOT WARRANT THAT THE SITE, THE FORUMS OR THE DEVELOPER TOOLS WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT THE REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY CONTAINED IN THESE TERMS ARE THE ONLY REPRESENTATIONS, WARRANTIES, AND COVENANTS PROVIDED BY MONERIS, AND THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, NON-INFRINGEMENT OR TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE WHETHER THE SITE, THE FORUMS AND THE DEVELOPER TOOLS ARE SUITABLE AND ADEQUATE FOR YOUR NEEDS. YOU CONFIRM THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY MONERIS WHICH HAS NOT BEEN EXPRESSLY STATED IN THESE TERMS.
B. LIMITATION OF LIABILITY. THE MONERIS PARTIES WILL NOT BE LIABLE TO YOU, UNDER THESE TERMS OR OTHERWISE, FOR ANY DAMAGES, LOSSES, COSTS, EXPENSES OR ANY OTHER FINANCIAL LIABILITY WHATSOEVER, INCLUDING WITHOUT LIMITATION: (I) DAMAGES CAUSED BY ANY DEFECT OR ERROR IN THE SITE, THE FORUMS OR THE DEVELOPER TOOLS, OR BY ANY INADEQUACY OF THE SITE, THE FORUM OR THE DEVELOPER TOOLS FOR ANY PURPOSE; AND (II) DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES SUFFERED BY YOU OR ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE SITE, THE FORUMS OR THE DEVELOPER TOOLS (INCLUDING WITHOUT LIMITATION, CLAIMS THAT THE SITE, THE FORUMS OR THE DEVELOPER TOOLS INFRINGE ANY PATENT, COPYRIGHT, TRADE-MARK, TRADE SECRET OR OTHER PROPRIETARY OR CONTRACTUAL RIGHT OR OBLIGATION, LOST PROFITS AND ANY OTHER COMMERCIAL OR ECONOMIC LOSS). THIS PROVISION APPLIES EVEN IF MONERIS HAS BEEN NOTIFIED OF THE POSSIBILITY OF THESE DAMAGES AND IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT AND NEGLIGENCE. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE MONERIS PARTIES ARISING OUT OF YOUR USE OF THE SITE, THE FORUMS, THE DEVELOPER TOOLS, THE INTEGRATION, THE PAYMENT SOLUTION OR THESE TERMS. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE MONERIS PARTIES TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED ONE HUNDRED DOLLARS ($100).
c. Links to Other Web Sites. Links from or to web sites outside the Site are meant for convenience only. Moneris does not review, endorse, approve or control, and is not responsible for any sites linked from or to the Site, the content of those sites, the third parties named therein, or their products and services. Linking to any other site is at your sole risk and Moneris will not be responsible or liable for any damages in connection with linking. Links to downloadable software sites are for convenience only and Moneris is not responsible or liable for any difficulties or consequences associated with downloading the software. Use of any downloaded software is governed by the terms of the license agreement, if any, which accompanies or is provided with the software.
a. Any notice given to Moneris under these Terms shall be in writing and shall be delivered personally or by certified mail addressed as follows:
Moneris Solutions Corporation
3300 Bloor Street West
Toronto, Ontario M8X 2X2
Attn: Chief Technology Officer
Notices delivered by personal delivery or fax will be deemed to have been received five (5) business days after the date notice is received by Moneris.
b. Any notice from Moneris to you may be posted at https://developer.moneris.com and shall be effective one (1) business day after posting. It is your responsibility to monitor the link herein noted for notices posted by Moneris. You also agree that Moneris, in its sole discretion, may send notice to you to the e-mail address that you have provided to Moneris, if any, and any such notice shall be deemed to be effective one (1) business day after the date sent.
c. These Terms constitute the entire agreement between you and Moneris with regard to their subject matter. In addition to the terms and conditions in these Terms, your use of the Site, the Forums and the Development Tools is subject to any other agreements between you and Moneris relating to other products and services you obtain from Moneris. Moneris may also make additional material available for download or use which may have additional terms and conditions. All additional terms and conditions are incorporated into and are a part of these Terms. In the event of a conflict between these Terms and any additional terms and conditions, the additional terms and conditions will control only with respect to their specific subject matter. If any provision(s) of these Terms is found to be illegal, unenforceable in law or equity, or against public policy, the offending provision(s) will be severed, and that finding will not invalidate any other provision of these Terms. The failure by Moneris to exercise or enforce any right hereunder shall not operate as a waiver of Moneris’ right to exercise or enforce such right or any other right in the future.
d. You acknowledge and agree that your breach of these Terms relating to the licenses granted herein and your use of Confidential Information may result in irreparable harm and permanent injury to Moneris for which monetary damages would be an inadequate remedy. Therefore, in addition to any and all remedies available at law, Moneris will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual breach of any or all such provisions.
e. You may not assign or transfer your rights or obligations under these Terms. Any purported assignment in violation of the foregoing will be invalid. Moneris may assign its rights and obligations under these Terms without your prior written consent.
f. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without regard to principles of conflicts of law or the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded, and shall be treated in all respects as an Ontario contract.
g. Any dispute, controversy or claim arising out of or relating to these Terms or your use of the Site, the Forums or the Developer Tools irrespective of the cause of action, including without limitation breach of contract, tort or negligence (“Claims”) shall be referred to and finally resolved by arbitration (to the exclusion of any court of law otherwise having jurisdiction) by notice to the other party (“Notice of Arbitration”). Upon the issuance of Notice of Arbitration by either party, Moneris, in its sole discretion, shall choose either a single arbitrator or a panel of three arbitrators. The arbitration shall be held in Toronto, Ontario. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (Ontario), except for any Claims involving a party that is not a resident of Canada, in which case the arbitration shall proceed in accordance with the International Commercial Arbitration Act (Ontario). The date of hearing must be held on the date(s) determined by the arbitrator(s). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. You shall bear the costs of the arbitration (including with respect to the payment of fees and disbursements related to the arbitration). All matters relating to the arbitration, including without limitation any Claim, the arbitration and any orders, awards or judgments related to the arbitration, are Confidential Information and are subject to the restrictions set out in Section 7 of these Terms.
h. You agree that you may bring or participate in claims against Moneris in your individual capacity only and not as a plaintiff or class member in any purported class or representative proceeding. Unless you and Moneris agree otherwise, the arbitrator(s) may not consolidate or join the claims of other persons who may be similarly situated, and may not preside over any form of a representative or class proceeding.
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