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Merchant Transaction Reporting and Receipt Storage Reporting System Agreement (B1464408-2).DOCX

 

RETALIX Merchant Transaction Reporting and Receipt Storage
Reporting System Agreement

IMPORTANT NOTE: You are responsible for maintaining the confidentiality of your user identification and password. Please authorize only one or as few trusted employees as possible with such information to be securely held by them. You may be subject to severe legal sanctions for the unauthorized release of personally identifiable information. You are entirely responsible for any failure to maintain the confidentiality of your user identification, password and any personally identifiable information gained thereby.

BY LOGGING ON TO THE REPORTING SYSTEM AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE following TERMS AND CONDITIONS AND THAT YOU HAVE THE AUTHORITY TO SO AGREE ON BEHALF OF the mercHANT.

The Merchant Transaction Reporting and Receipt Storage reporting system (“Reporting System”), owned and operated by Retalix USA, Inc. (“We”) and/or any of its affiliated companies, is provided to the user (“You”) under the terms and conditions of this Merchant Transaction Reporting and Receipt Storage Reporting System Agreement (“Agreement”). The term “You” shall include you, your merchant firm, and any other user of the Reporting System using your computers or using your user identification and password on any computer.

You acknowledge that these Terms and Conditions are supported by reasonable and valuable consideration, the receipt and adequacy of which You hereby acknowledge, and which include, but are not limited to, your use of the Reporting System and receipt of data, materials and information available at or through the Reporting System, the possibility of our use or display of any content you may submit, and the possibility of the publicity and promotion from our use or display of such content.

Should You object to any term of this Agreement or any subsequent changes thereto or become dissatisfied with the Reporting System for any reason, your only recourse is to immediately discontinue use of the Reporting System and notify us of termination in accordance with Section 8.

1.access and information Requirements

1.1.You shall provide and maintain all equipment at your cost necessary to gain access to, and to be compatible with, our Reporting System.

1.2.You shall provide and maintain complete, current, and accurate information about You as requested by us or the Reporting System. All Reporting System information provided to us by You may be disclosed by us to third parties in aggregate form, which will not include your name, account, address, e-mail address, and phone number, unless You expressly direct us to disclose such information, or We are required to disclose such information by law.

1.3.We retain the right to terminate your rights to use the Reporting System without notice if any information provided by You is inaccurate.

2.Your Account Security Requirements

2.1.You shall create user identification and a password for accessing the Reporting System. Your password shall be changed no later than every ninety (90) days. You shall not use the same password five (5) consecutive times.

2.2.You are entirely responsible for maintaining the confidentiality of your user identification and password. Furthermore, You are entirely responsible for any and all activities that occur related to the use of the Reporting System under your account.  2.3.You shall immediately notify us of any discovered unauthorized use of the Reporting System or your account or any other breach of security known to You.

3.changes to the Reporting System

3.1.We may, in our sole discretion and at any time, in any way, for any reason, change or discontinue the Reporting System or any of these terms and conditions to your use of the Reporting System, including, but not limited to, revising fees for its use. 

3.2.We shall not be liable to You or any other person or entity should We change or discontinue the Reporting System or its terms and conditions of use.

3.3.Such changes shall be effective immediately upon notice thereof, which may be posted on the Reporting System or by any other means by which You obtain notice thereof. Your continued use of the Reporting System shall constitute your consent to and acceptance of such changes.  If You do not agree to such changes, You should discontinue your use of the Reporting System immediately and notify us of termination in accordance with Section 8.

4.DISCLAIMER OF WARRANTIES

4.1.YOU EXPRESSLY AGREE THAT USE OF the REPORTING SYSTEM IS AT YOUR SOLE RISK.

4.2.THE REPORTING SYSTEM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

4.3.WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE WITH RESPECT TO THE REPORTING SYSTEM.  IN ADDITION, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO LIABILITY FOR COMPLIANCE WITH LAWS, REGULATIONS, OR OTHER OFFICIAL GOVERNMENT RELEASES APPLICABLE TO YOU, WHICH SHALL BE YOUR SOLE RESPONSIBILITY. YOU EXPRESSLY AGREE THAT WE DO NOT REPRESENT NOR WARRANT THAT THE OPERATION OF THE REPORTING SYSTEM SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.  WE MAKE NO REPRESENTATIONS OR WARRANTIES, AND ACCEPT NO RESPONSIBILITY OR LIABILITY WHATSOEVER: (I) REGARDING THE ACCURACY, CAPABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY OR ANY OTHER CHARACTERISTIC, OR THE PERFORMANCE THEREOF, OF THE REPORTING SYSTEM, OR ANY INFORMATION OBTAINED THROUGH THE REPORTING SYSTEM; (II) THAT THE REPORTING SYSTEM WILL OPERATE ON YOUR COMPUTER HARDWARE OR SOFTWARE SYSTEM; (III) THAT ANY DEFECTS IN THE REPORTING SYSTEM WILL BE CORRECTED; OR (IV) THAT THE REPORTING SYSTEM WILL MEET YOUR REQUIREMENTS.

 

4.7.ANY INFORMATION OBTAINED THROUGH THE USE OF THE REPORTING SYSTEM IS DONE AT YOUR DISCRETION AND RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER SYSTEMs OR any LOSS OF DATA THAT RESULTS FROM ACCESS TO THE REPORTING SYSTEM.

 

4.8.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US REGARDING THE REPORTING SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

4.9.Some jurisdictions do not allow the exclusion of certain warranties.

5. LIMITATION OF LIABILITY

5.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE FOR (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF, OR INABILITY TO USE, THE REPORTING SYSTEM, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF THE REPORTING SYSTEM OR YOUR TRANSMISSIONS OR DATA, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF GOODWILL, OR LOSS OF USE OR OTHER INTANGIBLEs, REGARDLESS OF THE BASIS FOR LIABILITY OF ANY CLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) ANY THIRD PARTY CLAIMS AGAINST YOU OR ANOTHER PERSON OR ENTITY.

OUR MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL BE LIMITED TO THE LOWER OF (I) THE DIRECT DAMAGES ACTUALLY INCURRED BY YOU AS A RESULT OF THE EVENT GIVING RISE TO LIABILITY, OR (II) THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU OVER THE IMMEDIATELY PRECEDING 12 MONTHS FOR THOSE REPORTING SYSTEMS SERVICES SPECIFICALLY GIVING RISE TO THE LIABILITY. 

5.2.Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages.

5.3.You agree that We have set our fees for use and entered into this Agreement in reliance upon the disclaimers and limitations set forth in Sections 4 and 5, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between these parties, are fundamental to this Agreement and neither party would be willing to enter into this Agreement or the business relationship contemplated hereby, unless such limitations are given effect.. 

5.4.The limitations of liability included in this Section 5 shall inure to our benefit and to the benefit of our officers, directors, agents and employees and affiliates and their respective officers, directors, agents and employees.

 

6. USE OF THE REPORTING SYSTEM

6.1.You hereby represent and warrant that You have all requisite corporate power and authority to execute, deliver, and perform your obligations under this Agreement; (b) acceptance of this Agreement has been duly authorized by all requisite corporate actions; and (c) this Agreement is a valid and legally binding obligation thereon, enforceable against You in accordance with its terms.

6.2. During the term of this Agreement, subject to payment of the applicable fees, We hereby grant You and You accept a revocable, non-transferable, non exclusive, non-sublicensable, limited license to access and use the Reporting System for your internal business purposes.   Your right to use the Reporting System is exclusive to You, the merchant, and its authorized employees, and no other person or entity.  Except for the express license rights granted herein, no other licenses are granted to You by implication or otherwise.

6.3.You shall not resell, lease, license, rent, loan or make any commercial use of the Reporting System nor permit anyone else to do so.

6.4.You shall not  provide access to the Reporting System or transfer, sublicense or otherwise distribute the results of the Reporting System to any third party.

6.5 You shall not to access the Reporting System in any manner to provide service bureau, time sharing or other computer services to third parties.

6.6 You shall not use the Reporting System for illegal purposes.

6.7.You shall not interfere or disrupt networks connected to the Reporting System.

6.8.You shall  comply with all rules of use for the Reporting System or networks used by it.

6.7.You shall not attempt to gain unauthorized access to other accounts or computer systems by use of the Reporting System. 

7.INDEMNIFICATION

7.1.You are solely responsible for all consequences arising from your use of the Reporting System by You or any other user of the Reporting System using your computers or using your user identification and password on any computer. You shall indemnify and hold us, and our successors, parents, subsidiaries, affiliates, officers, directors, employees and attorneys harmless from and against any and all losses, damages, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to any third party claims due to or arising out of any use of the Reporting System by You or any other user of the Reporting System using your computers or using your user identification and password on any computer, including, but not limited to: (i) failure to strictly maintain the confidentiality and integrity of any user identifications or passwords used in connection with the Reporting System; (ii) unauthorized use of the Reporting System; or (iii) breach of this Agreement.

8.TERMINATION

8.1.We may terminate your access to the Reporting System upon termination of this Agreement for failure to pay our fees or for any other reason without further notice to You.

8.2.Either party may terminate your access to the Reporting System and this Agreement, with or without cause, at any time and effective upon written notice to the other party.

8.3.We shall not be liable to You or your customers for termination of your access to the Reporting System or this Agreement.

8.4.Upon termination of your access to the Reporting System, You shall have no further rights, and We shall have no further obligations, under this Agreement.

9.NOTICE

9.1.All notices to us by You shall be in writing and shall be made in any manner evidencing receipt by us to the following contact addresses:

Retalix USA, Inc.
6100 Tennyson Parkway, Suite 150, Plano, Texas 75024

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9.2.We may publish notices through the Reporting System regarding changes to the Agreement, the Reporting System, or other matters, which publication shall constitute notice to You. We may provide any such notice to You by other means.

10.PROPRIETARY RIGHTS TO CONTENT

10.1.You acknowledge and agree that all content, including but not limited to text, software, graphics or any other material contained within the Reporting System ("Content") and all components and software applications related the Reporting System, and the Reporting System itself, are protected by copyrights, trade secrets, trademarks, service marks, patents or other intellectual property or proprietary rights.  Except for the express license granted herein, We retain all right, title and interest in and to all of the foregoing.

10.2. You acknowledge that the Reporting System contains proprietary and confidential information of Retalix and/or Retalix’s licensors (collectively, “Confidential Information.”)  You shall not disclose, provide or otherwise make available to any third parties any such Confidential Information.

10.3You are only permitted to use this Content as expressly authorized by this Agreement.

10.4.You may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by us.

10.5.We may distribute non-confidential content supplied or submitted by You on or to the Reporting System.  You represent, warrant and covenant that You are the rightful owner of all of the rights to any such content (including, but not limited to, moral rights) or have the appropriate license or sublicense rights from the owner, without the need for any permission from or payment to any other person or entity, and that the information You supply or submit on or to the Site is true and accurate.  You are entirely and solely responsible for all such content and the consequences of supplying or submitting them to or on the Reporting System.

10.6.Any information made available by third parties is that of such third parties and not us.

11.general provisions

11.1.This Agreement sets forth the entire Agreement between the parties hereto, fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof, and no change in, modification of or addition, amendment or supplement to this Agreement shall be valid unless set forth in writing and signed and dated by both of the parties hereto subsequent to the execution of this Agreement.

11.2.This Agreement shall be governed by the laws of the state of New York, without regard to its conflict in law provisions.

11.3.The state and federal courts of New York, New York shall have exclusive venue and jurisdiction over any legal proceeding filed related to this Agreement. Each party further agrees that personal jurisdiction may be effected upon it by service of process or by registered or certified mail, and that when service is so made, it shall be as if personal service was effected within the State of New York.

11.4.Each party agrees to waive its right to a jury trial.

11.5.The invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions and shall thereafter be construed in such a way that the purpose of this Agreement, as intended by the parties, can be achieved in a lawful manner.

11.6.Our failure to exercise or enforce any right of this Agreement shall not constitute a waiver of such right unless acknowledged and agreed to by us in writing.

11.7.The parties agree that any cause of action arising out of or related to this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

11.8.Any representations, warranties, and any other provision, which expressly or impliedly should survive the term of this Agreement, shall survive the term of this Agreement.

11.9.Nothing herein creates any right or remedy for the benefit of any person not a party hereto nor creates a fiduciary relationship, an agency, an employment, or a partnership between the parties, who shall remain independent.

11.10.You shall not assign this Agreement or any right or interest hereunder without our written consent, which consent shall not be withheld unreasonably.

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