MerchantE Developer Terms of Service

Last modified: May 5, 2020

Thank you for using MerchantE’s APIs, other developer services, and associated software (collectively, "APIs"). By accessing or using our APIs, you (“you,” “your”) are agreeing to the terms below (the “Terms”). You agree to comply with the Terms and that the Terms control your relationship with us. So please read all the Terms carefully.

Under the Terms, "MerchantE " means Merchant eSolutions, Inc., with offices at 3475 Lenox Road NE, Suite 500, Atlanta, GA 30326, United States. We may refer to "MerchantE" as "we", "our", or "us" in these Terms.

Section 1: Account and Registration

a. You may not use the APIs and may not accept the Terms if (a) you are not of legal age to form a binding contract with MerchantE, or (b) you are a person barred from using or receiving the APIs under the applicable laws of the United States or other countries including the country in which you are resident or from which you use the APIs.

b. If you are using the APIs on behalf of an entity, you represent and warrant that you have authority to bind that entity to the Terms and by accepting the Terms, you are doing so on behalf of that entity (and all references to "you" in the Terms refer to that entity).

c. In order to access certain APIs, you may be required to provide certain information (such as identification or contact details) as part of the registration process for the APIs, or as part of your continued use of the APIs. Any registration information you give to MerchantE will always be accurate and up to date and you'll inform us promptly of any updates.

Section 2: Your Use of the APIs

a. You may use the APIs to access information created or retained in a MerchantE customer account (“Content”) and use MerchantE payment processing services in connection with the applications, websites, products or services you operate and offer that interact with APIs (“Your Service”). You are solely responsible for, and we disclaim all liability for, Your Service.

b. Your use of the APIs and Content are subject to certain limitations on access, calls and use as set forth in these Terms or as otherwise provided to you by us. You agree to, and will not attempt to circumvent, such limitations documented with each API. If you would like to use any API beyond these limits, you must obtain our express consent (and we may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use). If we believe that you have attempted to exceed or circumvent these limitations, your ability to use the APIs and Content may be temporarily or permanently blocked.

c. If we assign you developer credentials or client IDs, you must use them with the applicable APIs. You will not misrepresent or mask either your identity or Your Service’s identity when using the APIs or developer accounts.

d. We may update the APIs at any time and may discontinue support for previous versions of the APIs in our sole discretion. We will make reasonable efforts to notify you when a version of the APIs will no longer be supported.

e. You will use the APIs and operate Your Services which access the APIs only as permitted by law (including without limitation, laws regarding the import or export of data or software, privacy, or data-security as applicable). You will not use the APIs to encourage or promote illegal activity. You will only access the applicable APIs following the implementation instructions and other requirements specified in the documentation for such APIs, or as otherwise provided by us from time to time. You will not violate any other terms of service with MerchantE (or its affiliates).

f. You will require your end users to comply with (and not knowingly enable them to violate) applicable laws, regulations or the Terms.

g. You are fully responsible for the security of data on your site and processed via Your Services. You agree that at all times you and Your Services will, at your effort and expense, be compliant with the Payment Card Industry Data Security Standard (PCI DSS), the Payment Application Data Security Standard (PA-DSS), as applicable, and all applicable laws bearing on data privacy and cybersecurity. At our request, you will promptly provide us with documentation evidencing your compliance with PCI DSS, PA-DSS, and/or applicable law. You will use and access the APIs in accordance with the documentation and instructions provided by us and in no circumstances will you store, process or transmit any cardholder’s account number, expiration date, or CVV2 except as described in that documentation. Further, you may not disclose card information to any third party, other than in connection with processing card transaction requested by your customer under Your Service and in a manner consistent with PCI DSS and applicable law.

h. Your use of the APIs may result in a requirement to register with the payment brands. In such case, you acknowledge and agree to assist MerchantE in any such registrations, including completing applicable registration forms and reimbursing MerchantE for registrations. If you do not cooperate with any required registration, MerchantE may terminate your access to APIs.

i. You provide us with a paid-up, royalty-free, revocable, worldwide, non-exclusive, non-transferable license to use Your Services for testing, review or other related purposes to ensure that Your Services comply with these Developer Terms. You may revoke this license at any time by providing written notice to us. If you revoke this license, your access to the APIs and Content will immediately terminate.

j. These Terms are non-exclusive. You acknowledge that we may develop products or services that may compete with Your Services or any other products or services.

Section 3: API and Content Prohibitions

a. When using the APIs, you may not (or allow those acting on your behalf to):

i. Sell, rent, lease, sublicense or redistribute an API for use by a third party.

ii. Create a Service that functions substantially the same as the APIs or any MerchantE service and offer it for use by third parties.

iii. Perform an action with the intent of introducing to our products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

iv. Defame, abuse, harass, stalk, or threaten others.

v. Interfere with or disrupt the APIs or the servers or networks providing the APIs.

vi. Reverse engineer or attempt to extract the source code from any API or any related software, except to the extent that this restriction is expressly prohibited by applicable law.

vii. Remove, obscure, or alter any MerchantE terms of service or any links to or notices of those terms.

b. You will not, nor will you permit another party, to do any of the following with Content accessible through the APIs:

i. scrape, access, download, store, build databases or otherwise create permanent copies of any Content;

ii. copy, translate, modify, create derivative work of, sell, lease, sublicense, distribute or publicly display any of such Content;

iii. Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material; or

iv. make statements or represent yourself or Your Service as an agent of MerchantE.

Additionally, you and Your Service will clearly identify its purpose to MerchantE customers and not mislead or deceive such customers with respect to the functionality Your Service performs on behalf of their behalf or to what Content Your Service may access, store, and manipulate.

If a MerchantE customer who uses Your Service revokes your permission to access their Content (“Revoking Customer”), you agree to a) immediately stop accessing the Revoking Customer Content, and b) delete any and all Revoking Customer Content from your systems. You further agree that we have the right to audit your deletion of the Revoking Customer Content at any time, including after your account has been terminated.

Section 4: Content Submission

Some of our APIs may allow the submission of content. We do not acquire any ownership of any intellectual property rights in the content that you submit to our APIs through Your Service, except as expressly provided in the Terms. For the sole purpose of enabling us to provide, secure, and improve the APIs (and the related service(s)) and only in accordance with our applicable privacy policies, you grant us a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and non-exclusive license to use content submitted, posted, or displayed to or from the APIs through Your Service. Before you submit content to our APIs through Your Service, you will ensure that you have the necessary rights (including the necessary rights from your end users) to grant us the license.

Section 5: Ownership and Feedback

a. You expressly acknowledge that MerchantE retains all worldwide rights, titles and interests in and to the APIs, including all intellectual property rights therein. You further acknowledge that MerchantE’s’ customers retain all worldwide rights, titles and interests in and to their Content, including all intellectual property rights therein. You agree not to do anything inconsistent with such ownership. Any rights not expressly granted herein are withheld.

b. Subject to Section 2 above and this Section 5, as between you and us, you retain all worldwide right, title and interest in and to Your Service, including but not limited to all intellectual property rights therein.

c. We may also periodically make available certain MerchantE logos, trademarks, or other identifiers (together, the “Marks”) for your use as set forth in the documentation for the API. If we do so, you will use the Marks subject to and in accordance these Terms. We may limit or revoke, in our sole discretion, your ability to use our Marks at any time. All rights in and to the Marks shall remain the sole and exclusive property of MerchantE. All use by you of the Marks (including any goodwill associated therewith) shall inure to the benefit of MerchantE.

d. You will not make any statement regarding your use of an API which suggests partnership with, sponsorship by, or endorsement by MerchantE without our prior written approval.

e. You may provide MerchantE with comments concerning the APIs or the Content or your evaluation and use thereof. You agree that MerchantE and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate, and otherwise use the feedback, including derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to you.

Section 6. Termination

a. We may terminate these Terms, suspend or terminate your access to the APIs at any time for any reason without liability or obligation to you. We may add or remove, suspend, stop, delete, discontinue or impose conditions on the APIs or any feature or aspect of the APIs. We will take reasonable steps to notify you of termination by email or at the next time you attempt to access the APIs.

b. You may stop using the APIs at any time with or without notice. Further, if you want to terminate the Terms, you must provide us with prior written notice and upon termination, cease your use of the applicable APIs.

c. If these Terms or your access to the APIs is terminated or suspended for any reason:

i. The license and any other rights granted under these Terms and any other applicable terms will end;

ii. We may (but have no obligation to) delete your information and account data stored on our servers; and

iii. We shall not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of your API access, or for deletion of your information or account data.

d. If your API access is terminated or suspended, you agree to:

i. Immediately stop using the APIs;

ii. Immediately stop accessing all Content; and

iii. Delete all Content from your systems. You further agree that we have the right to audit your deletion of all Content.

e. When the Terms come to an end, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Sections 3, 4, 6, 7, 8 and 9.

Section 7: Confidentiality

a. Developer credentials (such as passwords, keys, and client IDs) are intended to be used by you and identify Your Service or your access to the APIs. You will keep your credentials confidential and make reasonable efforts to prevent and discourage others from using your credentials. Developer credentials may not be embedded in open source projects.

b. Our communications to you and our APIs may contain MerchantE confidential information. MerchantE confidential information includes any materials, communications, and information that are marked confidential or that would normally be considered confidential under the circumstances. If you receive any such information, then you will not disclose it to any third party without our prior written consent. MerchantE confidential information does not include information that you independently developed, that was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose MerchantE confidential information when compelled to do so by law if you provide us reasonable prior notice, unless a court orders that we not receive notice. Upon termination of these Terms, you agree to delete all MerchantE confidential information from your systems. MerchantE retains all rights to and interest in its confidential information.

Section 8: Liability for the APIs

a. WARRANTIES

EXCEPT AS EXPRESSLY SET OUT IN THE TERMS, NEITHER MERCHANTE NOR ITS AFFILIATES MAKE ANY SPECIFIC PROMISES ABOUT THE APIS. FOR EXAMPLE, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT ACCESSED THROUGH THE APIS, THE SPECIFIC FUNCTIONS OF THE APIS, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE APIS "AS IS".

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TERMS, TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, GUARANTEES, CONDITIONS, REPRESENTATIONS, AND UNDERTAKINGS.

b. LIMITATION OF LIABILITY

WHEN PERMITTED BY LAW, MERCHANTE, AND MERCHANTE’S SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA; FINANCIAL LOSSES; OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

UNDER NO CIRCUMSTANCES WILL MERCHANTE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE APIS OR THE INFORMATION CONTAINED THEREIN.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF MERCHANTE, AND ITS AFFILIATES, FOR ANY CLAIM UNDER THE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO FIVE HUNDRED DOLLARS ($500.00).

IN ALL CASES, MERCHANTE AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

c. Indemnification

You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:

i. any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms, including without limitation any violation of our policies;

ii. your wrongful or improper use of the APIs or Content;

iii. your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;

iv. your violation of any law, rule or regulation of the United States or any other country; or

v. any other party’s access and/or use of the APIs with your unique name, password or other appropriate security code.

Section 9: General Provisions

a. Modification. We may modify the Terms or any portion for any reason, including but not limited to, reflecting changes to the law or changes to our APIs. You should look at the Terms regularly. We will post notice of modifications to the Terms to this website and/or in the MerchantE developer portal. The modifications will be effective as of the time they are posted but will not apply retroactively. If you do not agree to the modified Terms for an API, you should discontinue your use of that API. Your continued use of the API constitutes your acceptance of the modified Terms.

b. Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.

c. Limitation on Time to Initiate a Dispute. Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.

d. General Legal Terms. The Terms do not create any third-party beneficiary rights or any agency, partnership, or joint venture. Nothing in the Terms will limit either party's ability to seek injunctive relief. We are not liable for failure or delay in performance to the extent caused by circumstances beyond our reasonable control. If you do not comply with the Terms, and MerchantE does not take action right away, this does not mean that we are giving up any rights that it may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms. The Terms are the entire agreement between you and MerchantE relating to its subject and supersede any prior or contemporaneous agreements on that subject.

Except as set forth below: (i) the laws of Georgia, U.S.A., without reference to conflict of law provisions, will apply to any disputes arising out of or related to the Terms or the APIs and (ii) ALL CLAIMS ARISING OUT OF OR RELATING TO THE TERMS OR THE APIS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF FULTON COUNTY, GEORGIA, USA, AND YOU AND MERCHANTE CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.