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Terms of Use Agreement

  1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT 

The Terms of Use Agreement ("TOU") is provided by Mercantile Processing Inc to you as an end user ("USER") of the information obtained from Mercantile Processing Inc, any amendments thereto, and any operating rules or policies that may be published from time to time by Mercantile Processing Inc, all of which are hereby incorporated by reference. The TOU comprises the entire agreement between USER and Mercantile Processing Inc and supersedes any prior agreements pertaining to the subject matter contained herein.

  1. DESCRIPTION OF SPECIFICATIONS AND INFORMATION 

Mercantile Processing Inc is providing USER with the information concerning the technical requirements for allowing point of sale software to send and receive electronic transaction data to the Mercantile Processing Inc network for authorization and/or settlement. To utilize the Specifications, USER must: (i) provide for USER's own access to the World Wide Web and pay any fees associated with such access, and (ii) provide all equipment necessary for USER to make such connection to the World Wide Web, including a computer, modem and Web browser. 

  1. USER'S REGISTRATION OBLIGATIONS 

In consideration of use of the Specifications, USER agrees to: (i) provide true, accurate, current, and complete information about USER as requested on the Gateway Application or Merchant Processing Agreement, and (ii) to maintain and update this information to keep it true, accurate, current and complete. This information about a USER shall be referred to as "Registration Data". If any information provided by USER is untrue, inaccurate, not current, or incomplete, Mercantile Processing Inc has the right to terminate USER's access to the Specifications and refuse any and all current or future use of the Specifications. 

  1. MODIFICATIONS TO AGREEMENT 

Mercantile Processing Inc may change the TOU from time to time at its sole discretion. Changes to the TOU will be announced and publicly available to all USERs.

  1. MODIFICATIONS TO SPECIFICATIONS 

Mercantile Processing Inc reserves the right to modify or discontinue, temporarily or permanently, the use of any of the Specifications with or without notice to USER. USER agrees that Mercantile Processing Inc shall not be liable to USER or any third party for any modification or discontinuance of a Specification. 

  1. LICENSE GRANT 
  • Subject to the terms and conditions of this Agreement, Mercantile Processing Inc hereby grants to USER a personal, limited, perpetual, non‐exclusive, non‐transferable, annual or monthly subscription license to make and use the SOFTWARE accompanying this TOU to be installed on CPUs residing on Licensee's premises, solely for Licensee's internal use.Mercantile Processing Inc and its suppliers shall retain title and all ownership rights to the product and this Agreement shall not be construed in any manner as transferring any rights of ownership or license to the SOFTWARE or to the features or information therein, except as specifically stated herein. use and reproduce the following solely to develop, manufacture, test and support the products: (i) in object code form (except as may be agreed by the parties in writing or as otherwise set forth in this Agreement), (ii) the applicable software in object code form, except as may be agreed by the parties in writing or as otherwise set forth in this Agreement, (iii) Mercantile Processing Inc materials which shall include all documentation.
  • Upon the annual anniversary date of the activation of the license, the USER will be responsible for the renewal of the subscription of the license either through their RESELLER or directly to Mercantile Processing Inc.
  1. USER OBLIGATIONS 
  • USER shall utilize its Mercantile Processing Inc assigned devices in each application utilizing the Mercantile Processing Inc specification 
  • USER shall not reverse‐engineer, reverse‐compile or disassemble any Mercantile Processing Inc software or otherwise attempt to derive the source code to any Mercantile Processing Inc software. 
  • USER shall have no right to (i) disclose any Mercantile Processing Inc source code or Mercantile Processing Inc source code documentation to any third party, (ii) use or reproduce any Mercantile Processing Inc source code or Mercantile Processing Inc source code documentation other than as permitted or contemplated by this Agreement. No licenses are granted by Mercantile Processing Inc to USER by implication or estoppels to the Mercantile Processing Inc source code or Mercantile Processing Inc source code documentation. 
  • USER shall comply with all applicable card association regulations, applicable federal, state and local statutes and Mercantile Processing Inc required procedures and identified best practices. USER agrees (i) not to use the Specifications for illegal purposes; and (ii) to comply with all applicable laws regarding the transmission of technical data exported from the United States.
  • If a device fails during the warranty period USER is obligated to send the device for repair. Shipping will need to be paid for by USER
  • USER will be required to reconcile their deposits daily and in the case there is a discrepancy POS.cloud.inc will confirm if the terminal batched. Once the terminal is confirmed to have batched to the processor the USER is then required to work with the processor to resolve the deposit issue.  
  1. DISCLAIMER OF WARRANTIES 

USER expressly agrees that use of the Specifications is at USER's sole risk. The Specifications are provided on an "as is" basis. 

  • Mercantile Processing Inc EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON‐INFRINGEMENT. 
  • Mercantile Processing Inc MAKES NO WARRANTY THAT THE SPECIFICATION WILL MEET USER'S REQUIREMENTS, NOR DOES Mercantile Processing Inc MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SPECIFICATIONS OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SPECIFICATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 
  1. TERMINATION BY Mercantile Processing Inc 

USER agrees that Mercantile Processing Inc may terminate USER’s  account or use of the Specifications: 

  • If Mercantile Processing Inc determines in its sole discretion that USER has violated or acted inconsistently with the letter or spirit of the TOU; 
  • If the USER has violated the rights of Mercantile Processing Inc, or that USER's continued use of the Specifications poses a material threat to the security, stability or ongoing operation of the System or Specifications. 
  • Mercantile Processing Inc may terminate this Agreement for cause at any time upon providing not less than ten (10) business day's prior written notice to USER. USER acknowledges and agrees that any termination of access privileges to the Specifications under any provision of the Agreement may be effected without prior notice. 
  • Mercantile Processing Inc shall in the event that payment for license has not been renewed  and Mercantile Processing Inc has not received and validated payment from either the USER or the RESELLER within 30 days of the payment due date then usage of the license will be terminated. 
  1. LIMITATION OF LIABILITY 

In no event shall Mercantile Processing Inc be liable to USER for any incidental, consequential or punitive damages related to this Agreement or the use of Mercantile Processing Inc software or specifications. The liability of Mercantile Processing Inc hereunder shall be limited to the fees paid to Mercantile Processing Inc pursuant to this Agreement.  USER agrees that Mercantile Processing Inc shall not be liable for any direct, indirect, incidental, special, or consequential damages, resulting from the use or the inability to use the Specifications, including but not limited to, damages for loss of profits, use, data or other intangibles, even if Mercantile Processing Inc has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to you. 55 NOTICE: Any notice to USER or to Mercantile Processing Inc shall be made via either e‐mail or regular mail. Mercantile Processing Inc may also provide notices of changes to the TOU or other matters by displaying notices to USERs, generally on the Specifications. 

  1. SPECIAL DAMAGES 

In no event will Mercantile Processing Inc be liable to the USER, consequential or punitive damages, including but not limited to, lost profits, even if such party knew of the possibility of such damages. 

  1. INDEMNIFICATION 

USER shall be liable to and shall indemnify and hold Mercantile Processing Inc, its employees, representatives, successors and permitted assigns harmless from and against any and all claims, demands by third parties, losses, liability, cost, damage and expense, including litigation expenses and reasonable attorneys' fees and allocated costs for in‐house legal services, to which Mercantile Processing Inc, its employees, representatives, successors and permitted assigns may be subjected or which it may incur in connection with any claims which arise from or out of or as the result of (i) USER's breach of this Agreement, (ii) the performance by USER of its duties and obligations under this Agreement or (iii) the negligent or willful misconduct of USER, its officers, employees, agents and affiliates in the performance of their duties and obligations under this Agreement. 

  1. PROTECTION OF CONFIDENTIAL INFORMATION 

All information of a business nature relating to the Mercantile Processing Inc specification, software, application interfaces, services, processes, merchant and cardholder data, product or programming techniques of either party shall be deemed confidential ("Confidential Information"). This shall not prohibit each party from disclosing such Confidential Information to persons required to have access thereto for the performance of this Agreement; provided, however, that such persons shall be required to keep such Confidential Information confidential to the same standard that the disclosing party is obligated to keep the Confidential Information confidential. 

  1. FORCE MAJEURE 

In no event shall Mercantile Processing Inc be liable with respect to the failure of its duties and obligations under this Agreement (other than an obligation to pay money) which is attributable to acts of God, war, terrorism, conditions or events of nature, civil disturbances, work  stoppages, equipment failures, power failures, fire or other similar events beyond its control. 

  1. GENERAL 
  • The Specifications Agreement and the relationship between USER and Mercantile Processing Inc shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
  • The failure of Mercantile Processing Inc to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU remain in full force and effect. 
  • USER agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Specifications or the Specifications Agreement must be filed within ninety (90) days after such claim or cause of action arose or be forever barred. 
  • USER agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the TOU will be submitted and addressed by an arbitrator in binding arbitration in the State of Delaware.
  • Mercantile Processing Inc is not responsible for any missing funds. Including but not limited to terminal batch failure, VAR sheet onboarding error or terminal compatibility issues. 
  1. SECTION TITLES The section titles in the TOU are for convenience only and have no legal or contractual effect.