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.
The Software 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.
During the 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.
Either party 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.
MerchantRMS 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.