By accessing or using the WebCommerce product (“WebCommerce”), including all related software, applications, content, services and other materials (collectively, the “Services”) provided by Merchant eSolutions, Inc. and its affiliates and partners (“MES,” “we,” “our” or “us”), you agree to be legally bound by and comply with these WebCommerce Terms of Service (these “Terms”). You understand that MES may change these Terms or suspend or terminate your use of the Services at any time as described in these Terms.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION PROVISION GOVERNING HOW CLAIMS THAT EACH PARTY HAS AGAINST EACH OTHER ARE RESOLVED. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST MES ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. ALSO, THESE TERMS INCLUDES A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST MES AND CERTAIN THIRD PARTIES THAT MAY ARISE OUT OF THE SERVICES.
BY USING THE SERVICES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY, THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES.
1. Registration and Access
Authority. If you are using the Services on behalf of a person, company or entity, you represent and warrant that you have full legal authority to accept these Terms on behalf of that person, company or entity.
Minors. You represent and warrant that you are not a minor under your applicable jurisdiction and that you possess the legal right and ability to accept these Terms.
Access and Credentials. To access the Services, you must create a WebCommerce account. When you create a WebCommerce Account, you will be issued certain access credentials to access the applicable portion of the Services. MES can refuse the creation of or cancel an account at its sole discretion at any time.
Your Responsibility. You are responsible for using the Services in a private and secure manner. You must keep the access credentials confidential and you may not sell, share, transfer, sublicense or otherwise make the access credentials available to others. You are responsible for all activities that occur using your access credentials. MES is not liable for any damage or loss due to unauthorized account access resulting from your actions, such as not logging out of the Services or sharing your account password. You agree to immediately notify MES in writing of any unauthorized use of your credentials or account or other breach of security.
Account Information. Any account information that you give to MES must be accurate and up to date and you will promptly inform us of any changes. You agree that we can use, store and share your account information to contact you for purposes under these Terms (for example, to notify you of any updates to the Services).
2. User Conduct
In accessing and using the Services, you (and anyone acting on your behalf) must adhere to the following:
Compliance. You will access and use the Services, including in relation to a website, blog, mobile app, service or product provided or developed by you (“Your Product”), in accordance with (i) these Terms; (ii) any third party software, licensing and service agreements you may have agreed to in order to access the Services; and (iii) all applicable laws, rules and regulations, or other restrictions on use of the Services or Content therein.
Transfer; Modification; Harmful Codes; Data Extraction. You will not: (i) distribute, sell, lend, transfer or grant any rights in or to all or any portion of the Services to any third party; (ii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code of any component of the Services; (iii) modify, alter, tamper with, repair or otherwise create derivative works of the Services or attempt to do so in a manner not expressly permitted by these Terms; (iv) upload, post, email or otherwise send or transmit any spyware, malware, virus, worm, Trojan horse or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device; (v) interfere or attempt to interfere in any manner with the functionality or proper working of the Services; or (vi) use web scraping, web harvesting or web data extraction methods to extract data or other content from the Services.
Prohibited Conduct. You will not access or use the Services: (i) to post or upload information or content that is false, inaccurate or misleading; (ii) to transmit or display any material that is illegal, abusive, graphically distressing, inflammatory, profane, threatening, hateful, tortious, defamatory, discriminatory, obscene, sexually explicit or contains pornography, libelous, invasive of another’s privacy, hateful or otherwise objectionable or offensive, or to harass or harm MES, or any other entity or another individual; (iii) to impersonate any other person while using the Services; (iv) disparage or injure the reputation or goodwill of MES, or any of its officers, directors or employees; (v) to develop or enhance a product or service competitive to the Services, (vi) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (vii) to transmit any unsolicited or unauthorized advertising or promotional materials; (viii) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services; or (viii) interfere with other users’ use and enjoyment of the Services.
Maintain Notices. You will not remove, obscure or alter any notice, including any notice of intellectual property right, appearing on or contained within the Services.
3. Content and Submissions
Content Ownership. Any text, graphics, photographs, or other information communicated to MES (collectively, “Content”) belongs to the person who posted such content. You may use any Content posted by you in any other way without restriction.
Your Compliance. Without limiting Section 4.a, you must comply with all laws and regulations applicable to your use of the Services and
5. Electronic Communications
By using the Services, you are consenting to receive certain communications from us. For example, MES may send you newsletters about new MES features, special offers, promotional announcements and customer surveys via email or other methods.
6. Termination and Suspension
Term. These Terms will take effect when you first subscribe to WebCommerce or otherwise access or use the Services and will remain in effect for so long as you continue accessing or using any of the Services.
Our Right to Terminate; Suspension. We have the right to suspend or revoke your access to all or any of the Services, at any time for any reason without notice or liability to you. Furthermore, upon our request, you agree to immediately stop using all Services.
Your Right to Cancel or Terminate. You can cancel your access to WebCommerce at any time. There will be no subsequent charges for WebCommerce or other Services after cancellation, but you will not be refunded for any previous payments. You may terminate your account by contacting MerchantE Customer Care at 1-888-288-2692.
Survival. The provisions of these Terms which, by their nature, should survive termination of these Terms, including but not limited to Sections 3, 4, 6.d, 10, 11, 12, 13, 14, 17, 18, and 19 shall survive and remain in effect after you cease accessing or using the Services, and apply to respective permitted successors and permitted assigns.
7. Changes and Modifications
Changes to Features and Functionality. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we operate the Services or in any features or functions thereof. Any description of how the Services work should not be considered a representation or obligation with respect to how the Services always will work. We are constantly adjusting the Services.
8. Social Media
For members in certain countries, some of the Services, such as our online shopping cart, may be able to be added to your page on social media networks, such as Facebook.
BY CONNECTING YOUR WebCommerce ACCOUNT TO YOUR FACEBOOK ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO OTHERS, INCLUDING TO FACEBOOK (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON FACEBOOK AND YOUR WebCommerce ACCOUNT SETTINGS). IF YOU DO NOT WANT INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, DO NOT USE THE FACEBOOK CONNECT FEATURE. We and Facebook are continually making changes and improvements to this feature, and therefore the available features and information that is shared may change from time to time. These changes may take place without notice to you and may not be described in these Terms.
9. Identity Protection
Your Responsibility. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your account. You are also responsible for maintaining the confidentiality of your account and password and for restricting access to your WebCommerce account. If you disclose your password to anyone or share your account with other people, you take full responsibility for their actions. Where possible, users of public or shared networks should log out at the completion of each visit.
Identity Theft. If you find that you are a victim of identity theft and it involves a WebCommerce account, you should notify us at 1-888-288-2692 immediately. Then, you should report this instance to all your card issuers, as well as your local law enforcement agency. Also, you should be mindful of any communication requesting that you submit credit card or other account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to our merchant platform and not through a hyperlink in an email or any other electronic communication, even if it looks official. MES reserves the right to place any account on hold anytime with or without notification to the account holder in order to protect itself and its partners from what it believes may be fraudulent activity. MES is not obligated to credit or discount an account holder for holds placed on the account by either a representative of MES or by the automated processes of MES.
10. Disclaimer of Warranties
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE). IN ADDITION TO, AND WITHOUT LIMITING THE FOREGOING: (A) MES DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (B) MES DOES NOT WARRANT THAT ANY CONTENT, DOCUMENTATION OR OTHER MATERIALS AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER MALICIOUS OR HARMFUL CODE, AND YOU AGREE TO BE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY; AND (C) MES DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL RESOLVE ANY PROBLEMS. MES DISCLAIMS ALL EQUITABLE INDEMNITIES.
WE MAY DISCONTINUE PROVIDING THE SERVICES OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION THEREOF, AT ANY TIME IN OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. WE DO NOT WARRANT THAT THE SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE OR FREE OF HARMFUL COMPONENTS.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE NOR ANY OF OUR SUBSIDIARIES, AFFILIATES, LICENSORS, OR PARTNERS WILL BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFITS, OR GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR INTANGIBLE DAMAGES OR LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE USE OR PERFORMANCE OF THE SERVICES, OUR MERCHANT PLATFORM, OR ANY CONTENTS OR SOFTWARE ASSOCIATED THEREWITH. IN ANY CASE IF WE ARE FOUND LIABLE TO YOU NOTWITHSTANDING THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF YOUR PREVIOUS THREE (3) MONTHS OF FEES PAID TO MES ON YOUR SUBSCRIPTION PLAN. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
You shall indemnify, defend, and hold harmless MES, its affiliates and partners, and our and their officers, directors, employees, agents, suppliers, and representatives from and against all losses, expenses, damages and costs (including reasonable attorney’s fees), resulting from or relating to any third party claim that arises from (i) your use of the Services and any Content, (ii) your use of any Third Party Sites; (iii) Your Product; (iv) the use by MES of any materials provided to MES by you for use in the Services; and (v) your actual or alleged infringement, misappropriation, or violation of MES’ or a third party’s patent, copyright, trademark, trade secret or other intellectual property or proprietary rights. If you are a California resident, you hereby waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you hereby waive any comparable statute or doctrine.
13. Intellectual Property
License Grant. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license to access the Services for commercial purposes to use the Services for their intended purpose and in relation to Your Product (if applicable).
Ownership. As between you and MES, we own all rights, title and interest in and to (i) the Services and all associated elements and components; and (ii) MES’ name, logo and trademarks, service marks, and trade dress (including but not limited to graphics, logos, page headers, button icons, scripts) (“MES Marks”). You will not use any MES Marks without our prior written consent. You may not frame or utilize any framing techniques to enclose any MES Marks or other proprietary information (including images, text, page layout, or form) of MES without our express written consent. You may not purchase search terms or use any meta tags or any other “hidden text” utilizing the MES Marks without our express written consent. Subject to the foregoing, you own all rights, title and interest in and to Your Product. Except as expressly provided in these Terms, neither party grants, nor shall the other party acquire, any right, title or interest (including any implied license) in or to any property of the first party under these Terms. All rights not expressly granted in these Terms are withheld.
Third Party Content. MES does not promote, foster or condone the copying of third party products or categories or any other infringing activity. While the use of the Services, including demos of online stores, store Services, are for your commercial use, such items proprietary to third parties are not. Please see the instructions at the end of these Terms for notifying us of the presence of any allegedly infringing content of the Services.
MES is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication
you may send to us (“Feedback”), including responses to questionnaires or through postings to the Services without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Services. Furthermore, by posting any Feedback on our site, submitting Feedback to us, or in responding to questionnaires, you grant us an unlimited, perpetual, worldwide, non-exclusive, royalty-free, irrevocable license, including the right to sublicense such right, and right to display, use, reproduce, modify, commercialize, and otherwise exploit the Feedback in any manner for any purpose without any obligation to you or any third party. You will not give us feedback that requires MES to license its software to third parties as a result of MES including your Feedback in them.
15. Service Testing
From time to time, we test various aspects of our Services, including user interfaces, service levels, plans, promotions, features, delivery, and pricing, and we reserve the right to include you in or exclude you from these tests without notice.
16. Links to Third Party Sites
Links to third-party websites or content (“Third Party Sites”) accessible through the Services are for ease of reference and are not under the control of MES. MES does not endorse the Third Party Sites or their owners, nor do the links represent any kind of statement or warranty by MES with respect to the Third Party Sites or the information contained therein. Any opinion or advice offered by or on the Third Party Sites is solely those of the applicable authors and you acknowledge and agree that you must assess the accuracy and completeness of such content yourself. If you decide to access any of the Third Party Sites accessible through the Services, you do so entirely at your own risk. Any use of the Third Party Sites will be subject to, and any information you provide will be governed by, the terms of the applicable Third Party Site, including but not limited to those relating to confidentiality, data privacy and security.
17. Digital Millennium Copyright Act
MES respects the intellectual property rights of third parties and requires others to do so also. If you, as a user or other member of the public, believe that your copyrighted work or other intellectual property right is being used on our Site in a manner that infringes your work, you must notify MES as set forth below in this section.
MES will investigate notices of claimed copyright infringement and other intellectual property violations that it receives and take necessary actions under the Digital Millennium Copyright Act (“DMCA”) regarding any asserted or actual infringement. To report such a claim, email MES’ “Designated Copyright Agent” or “DMCA Agent” at firstname.lastname@example.org with the Subject line “Takedown Request Per DMCA”. You may also contact this DMCA Agent at: 1150 Sanctuary Parkway Suite 300 Alpharetta, GA 30009. This notice must be written and must contain the following information:
19. General Terms
Additional Terms. In addition to these Terms, your use or access of the Services may also be subject to any other agreements you have with MES. Any such additional agreements will supplement these Terms and will control over any conflict between the additional agreements and these Terms with respect to the specific subject matter of such additional agreements. If you use the Services as an interface to, or in conjunction with, other MES products and services, then the terms of those products and services also apply to you and your end users.
Relationship of the Parties. These Terms do not create a partnership, joint venture or agency relationship between you and MES. MES and you are independent contractors and neither party will have the power to bind the other or to incur obligations on the other’s behalf without the other party’s prior written consent.
Assignment and Delegation. You may not assign or delegate any rights or obligations under these Terms, including in connection with a change of control. Any purported assignment and delegation shall be null and void. We may freely assign or delegate any and all rights and obligations under these Terms without notice to you.
Equitable Remedies. You acknowledge that if you violate or breach these Terms, it will cause irreparable harm to MES. Accordingly, you agree that, if you violate or breach these Terms, MES shall be entitled to injunctive relief without the posting of a bond, in addition to any other legal remedies that MES may have.
Severability; Waiver. If any provision of these Terms shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and shall remain in full force and effect. Any failure of MES to enforce or exercise a right provided in these Terms is not a waiver of that right.
Notices. All notices specified under these Terms (other than the DMCA notice described in Section 17) will be made in writing and will reference these Terms. We may notify you using the registration information you provided or the email address associated with your Application. Service will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. MES accepts service of process at this address:
Merchant eSolutions, Inc.
1150 Sanctuary Parkway, Suite 300
Alpharetta, GA 30009
Last Updated: April 29, 2020