This Terms of Service Agreement (this “Agreement”) is a legal contract between your company (“Customer”,”You”, “Your”, or “Yourself”) and MERS Technologies Corporation, d/b/a/ Subuno(“MERS Technologies”, “Subuno”, “Company”, “We”, “Us”, or “Our”), which governs Your use of Our internet-based credit card fraud screening management and automated order processing software platform and service (“Software” or “Subuno Service”). This Agreement constitutes the entire understanding and agreement between MERS Technologies and You with respect to the subject matter hereof and supersedes all prior understandings and agreements with respect to such matters.
BY CLICKING THE “I ACCEPT” ICON BELOW, OR BY USING SUBUNO, YOU AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CUSTOMER, DO NOT USE SUBUNO, AND EXIT NOW.
Implementation of Subuno Service
Subject to the terms and conditions contained in this Agreement, Subuno hereby grants to YOU a worldwide, personal, nontransferable (except as otherwise set forth in this Agreement or the applicable Customer Order), non-sublicensable, non-exclusive (except as otherwise set forth in this Agreement or the applicable Customer Order), limited right to remotely access SubunoService. Such use may be by your employees or contractors or agents, provided that each such contractor or agent is not a competitor of Subuno and that Customer shall be liable to Subuno for any breach by Customer’s contractors or agents to the same extent as if such breach was committed by Customer.
You must register for and log in using an authorized account to use Subuno Service. Subuno Service is available for use only by authorized users in accordance with the terms of this Agreement. Any use, reproduction, modification or distribution of Subuno Service or any related software or services not expressly authorized by the terms of this Agreement is expressly prohibited.
You agree to provide true, accurate, current and complete information about yourself as prompted by the Subuno registration process (such information being the “Registration Data”). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to Subuno Service. You understand that additional, non-mandatory data may be request to enhance the functionality of our service.
Once you subscribe to Subuno Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as “IDs”). You agree that you will not allow another person to use your IDs to access and use the Subuno Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use Subuno using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to Subuno Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you.
Using your unique user ID and password, you may customize your account and system settings for Service. Such customizations allow you to select and access data and services provided by parties other than Subuno (“Third Party Data and Services”). You may also customize whether such accesses are automatic or manually triggered. You are solely and entirely responsible for all costs and expenses incurred for accessing Third Party Data and Services.
When you access Subuno Serivce or any Third Party Data and Services (collectively “Accessed Data and Services”), You shall use Accessed Data and Services solely for Your internal purposes. You shall limit access to Accessed Data and Services to Your own employees, agents, contractors, service providers, hired marketers and consultants who have agreed to keep Accessed Data and Services confidential. You shall immediately notify Subuno upon learning of any breach of confidentiality.
By paying a monthly fee and as long as you are a customer of Subuno, you are granted a right to use Subuno Service subject to the restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
By utilizing Subuno Service, you agree to pay for the service in accordance with our service fees until you cancel your account with Subuno.
By selecting Third Party Services and receiving Third Party Data using Subuno, you agree to pay for these Third Party Services and Data in accordance with our third party service fees and to pay the service fee until you discontinue the use of Third Party Data or cancel your account with Subuno.
You agree that in the event that any payment by Customer not received by Subuno within 30 days of the date due shall bear interest from the date due at the rate of one and one-half percent per month (prorated for partial periods) or the maximum rate permitted by applicable law, whichever is less.
YOU ACKNOWLEDGE THAT FAILURE TO MAKE TIMELY PAYMENT OF SUMS DUE AND OWING HEREUNDER WILL CONSTITUTE A DEFAULT AND BREACH OF THIS AGREEMENT AND IN SUCH EVENT, MERS TECHNOLOGIES SHALL HAVE THE RIGHT, AMONG OTHER THINGS, TO DISCONTINUE PROVIDING THE SERVICE TO CUSTOMER AND/OR TERMINATE THIS AGREEMENT AND/OR ANY OR ALL OF CLIENT’S RIGHTS HEREUNDER.
In the event that payment due to Subuno is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorney’s fees. Subuno may revise its fees upon 30 days prior notice.
You agree that you will not use Subuno Service, or any part of Subuno, or Third Party Data and Services for any purpose or in any way prohibited by any and all applicable local, state, national and international laws and regulations and/or by this Agreement. You will indemnify and hold harmless Subuno from and against any and all losses, liabilities, penalties, awards, judgments, costs, and expenses (including reasonable attorney’s fees) that Subuno may suffer or incur as a result of your violation of any such laws, regulations or this Agreement.
You agree that you will not attempt to access and will not access or use in any unauthorized or illegal manner any of Subuno’s software, hardware, applications, services, other accounts, servers, computer systems or networks or any information or materials except as expressly authorized by this Agreement.
You agree that you will not use automation software (bots), hacks, mods or any other unauthorized third-party software designed to access, crawl or collect from Subuno Service and/or Third Party Data and Services.
You agree you will not use any unauthorized third-party software that intercepts, “mines,” or otherwise collects information from or through Subuno Service or Third Party Data and Services.
You agree not to use Subuno Service for any unlawful or destructive purpose or in such a way that may result or has resulted in damage or risk to Subuno’s business, reputation, employees, third parties or to the public in general.
You agree you will not reproduce, copy, sell, exploit or transfer Subuno Service, or any portion of the related data or services, or any data related to Subuno or the rights granted to you by Subuno to use or access Subuno Service.
You agree you will not reverse or attempt to derive the composition or underlying information, structure or basis of any of Subuno’s products and software applications, including Subuno Service, and shall not attempt to copy any of Subuno’s source code(s).
You agree to will not at any time access for any purpose or use for any purpose the account of any other customer of Subuno, without the express written consent of that other customer.
Modification to Service
Subuno may change, suspend, or discontinue all or any part of Subuno Service at any time, with or without reason. You acknowledge that the operation of Subuno Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and MERS Technologies shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of Subuno. Subuno has no obligation to continue producing or releasing new versions of Subuno.
Termination of Service
You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing to access and use Subuno Service and canceling your account. Termination shall not release You from your obligations and liabilities to Subuno with respect to any fees incurred prior or became due and owning prior to such termination.
Subuno may suspend your right and license to access and use any or all Subuno Service and any related services and terminate this Agreement in its entirety for any reason or for no reason, at our discretion at any time, with or without notice. Subuno may also terminate your access to any part or all of Subuno and any related service(s) at any time, with or without notice, effective immediately, for any breach of this agreement, or if Subuno suspects fraudulent account activity. Subuno reserves the right without explanation, to deny service to any Customer that is suspected of unlawful or fraudulent activity, and to report this activity to the proper authorities. Subuno will have no obligation to notify any third parties nor will Subno be responsible for any damages that may result or arise out of such termination. Subuno shall not be liable to Customer for compensation, reimbursement or damages on account of the loss of prospective profits, goodwill or on account of expenditures, investments or commitments made by or on behalf of Customer, or for any other reason whatsoever flowing from Customer’s access and usage of Subuno upon termination.
We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
You agree that without consideration or compensation to you of any kind, at any time after Customer becomes a customer of Subuno, Subuno may publicly disclose, orally and in writing, the identity of Customer, the existence of such customer relationship and may comment on genesis and nature of that customer relationship for any and all purposes, including but not limited to promotion, marketing and advertising of Subuno Service. These rights granted by Customer to Subuno shall survive any termination of said customer relationship.
Subuno Service contains content and technology that are protected by copyright, trademark, patent, trade secret and other laws. Subuno owns all intellectual property rights to any protectable part of Subuno Service, including but not limited to the design, artwork, logos, functionality, and documentation. You may not copy, modify, or reverse engineer.
SUBUNO SERVICE AND RELATED SERVICES ARE PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION OF SUBUNO, OR ANY PORTION OF IT, MAY RESULT IN SEVERE CIVIL AND CRIMINAL PENALTIES, AND WILL BE PROSECUTED TO THE MAXIMUM EXTENT POSSIBLE UNDER THE LAW. SUBUNO SERVICE IS LICENSED, NOT SOLD.
You acknowledge and agree that title and full ownership rights to Subuno will remain the exclusive property of Subuno and you have not and will not acquire any rights to Subuno Service except as expressly set forth in this Agreement.
Disclaimer of Warranties
You expressly understand and agree that: YOUR USE OF SUBUNO SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS SUBSCRIBED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER SUBUNO, NOR ANY OWNER, MEMBER, MANAGER, EMPLOYEE, AGENT AND/OR SERVICE PROVIDER THEREOF, MAKES ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH SUBUNO, OR THE HARDWARE OR SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH SUBUNO, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, AND/OR ANY WARRANTY THAT PROVISION OF SUBNO WILL BE UNINTERRUPTED OR ERROR FREE. SUBUNO FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN.
SUBUNO DOES NOT WARRANT THAT (i) SUBNO SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THAT YOUR ACCESS TO OR USE OF SUBUNO SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (iii) THAT ANY OR ALL DEFECTS IN SUBUNO SERVICE WILL BE CORRECTED. NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF SUBUNO PROVIDING OR NOT PROVIDING SUBUNO SERVICE. IN FURTHERANCE HEREOF AND WITHOUT LIMITATION, USE OF SUBUNO SERVICE AND THE HARDWARE AND SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH SUBUNO SERVICE IS AT CUSTOMER’S SOLE RISK AND MERS TECHNOLOGIES SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
YOU UNDERSTAND THAT IN USING SUBUNO SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER SUBUNO’S CONTROL (SUCH AS A THIRD PARTY SERVERS). SUBUNO MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM SUBUNO SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF SERVICE.ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE SUBUNO SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation of Liabilities
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SUBUNO, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE SUBUNO SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM SUBUNO; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; (v) ANY OTHER MATTER RELATING TO SUBUNO.
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 may not apply to you.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OF THE PARTIES SET OUT HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU TO SUBUNO DURING THE SIX (6) MONTHS IMMEDIATELY PRIPOR TO THE TIME SUCH CLAIM AROSE. IF YOU ARE DISSATISFIED WITH SUBUNO, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF SUBUNO SERVICE.
The Terms of Service and the relationship between you and Subuno shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and the Company agree to submit to the personal and exclusive jurisdiction of the courts located within the county of New York, New York.
Modification of the Terms of Service Agreement
Subuno reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete, at any time, any of the terms and conditions of this Agreement, any feature of Subuno, hours of availability, content, data, software or equipment needed to access Subuno Service, effective with or without prior notice; provided, however, that material changes to this Terms of Service Agreement will not be applied retroactively. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, Subuno Service. Your continued use of Subuno Service following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Subuno may change, modify, suspend, or discontinue any aspect of Subuno Service at any time. Subuno may also impose limits on certain features or restrict your access to parts or all of Subuno Service without notice or liability.
This Terms of Servicer Agreement constitutes the complete and exclusive statement of the agreement between you and Subuno concerning Subuno Service and supersedes any prior or contemporaneous agreement, including previous versions of the Terms of Service Agreement, either oral or written, and any other communications with regard thereto between you and Subuno. The section headings used herein are for reference only and shall not be read to have any legal effect.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.