Helcim Commerce - Terms of Service

TERMS OF SERVICE
By using the Helcim Commerce solution (including the Virtual Terminal and Online Gateway service and the Fraud Defender Service (as defined below)) or any other services (collectively, the "Service") of Helcim Inc. and [Helcim USA Inc.] (collectively, "Helcim"), you are agreeing to be bound by the following terms and conditions (the "Terms of Service"). Any new features or tools which are added to the current Service shall be also subject to the Terms of Service. You can review the most current version of the Terms of Service at any time by logging into your Helcim Commerce account ("Account"). Helcim reserves the right to update and change the Terms of Service by posting updates and changes to the Helcim website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.

You must read, agree with and accept all of the terms and conditions contained in the Terms of Service agreement before you may become a user of the Service.

  1. Account Terms
    1. You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
    2. To access and use the Service, you must register for an Account by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Helcim may reject your application for an Account, or cancel an existing Account, for any reason, in its sole discretion.
    3. You acknowledge that Helcim will use the email address you provide as the primary method for communication.
    4. You are responsible for keeping your password and account PIN secure. Helcim cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account, password and PIN.
    5. You are responsible for all activity and content such as data, graphics, photos and links that is uploaded under your Account (the "Account Content"). You must not transmit any worms or viruses or any code of a destructive nature.
    6. A breach or violation of any term in the Terms of Service as determined in the sole discretion of Helcim will result in an immediate termination of the Service, and Helcim may immediately delete any materials, data or other content you have entered into, uploaded to or generated in or through the Service.

  2. Account Activation
    1. Subject to section 2.2, the person signing up for the Service will be the contracting party (the "Account Owner") for the purposes of the Terms of Service and will be the person who is authorized to use any corresponding account Helcim may provide to the Account Owner in connection with the Service.
    2. If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to the Terms of Service.
    3. The Account Owner will be one party to this contract. For Account Owners resident in the United States, [Helcim USA Inc.] will be the other contracting party. For all other Account Owners (non-residents of the United States), Helcim Inc. will be the other contracting party.

  3. General Conditions
    1. You acknowledge and agree that Helcim may amend the Terms of Service at any time by posting the relevant amended and restated Terms of Service on Helcim's website, available at https://www.helcim.com/us/policies/tos/ and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to Helcim's website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
    2. Helcim will make reasonable efforts to keep the Service operational except for any unavailability caused by: (i) planned downtimes; (ii) system outages; or (iii) circumstances beyond Helcim's 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.
    3. You acknowledge and agree that: (i) Helcim is not a bank or other chartered depository institution; and (ii) Helcim will not be holding any monies for you or your customers. Accordingly, you agree that Helcim will not be responsible or liable for any amounts related to any credit-card or payment transaction.
    4. You may not use the Service for any illegal, fraudulent or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer's jurisdiction, or the laws of Canada and the Province of Alberta. You will comply with all applicable laws, rules and regulations in your use of the Service.
    5. You understand that your Account Content (not including credit card information), may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
    6. In order to operate and provide the Service, Helcim collects certain personal information and data about you. As part of the Service, we may also automatically upload information about your computer or device, your use of the Service and the performance of the Service. You agree to the collection, use and disclosure of your personal information as set out in Helcim's privacy policy https://www.helcim.com/us/policies/privacy/. Please take the time to read the policy as it includes important terms which apply to you.
    7. Questions about the Terms of Service should be sent to support@helcim.com.

  4. Helcim Rights
    1. Helcim may, but have no obligation to, remove Account Content and Accounts containing content that Helcim determines in its sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or the Terms of Service.
    2. Verbal or written abuse of any kind (including threats of abuse or retribution) of any Helcim customer, Helcim employee, member, or officer will result in immediate Account termination.
    3. Helcim does not pre-screen Account Content and it is in its sole discretion to refuse or remove any Account Content that is available via the Service.
    4. Helcim reserves the right to provide the Service to your competitors and makes no promise of exclusivity in any particular market segment.
    5. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership.
    6. Helcim retains the right to determine, in its sole judgment, rightful Account ownership and transfer of an Account to the rightful owner. If Helcim is unable to reasonably determine the rightful Account owner, Helcim reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.

  5. Limitation of Liability and Disclaimer of Warranties
    1. You expressly understand and agree that Helcim and its officers, directors, employees, and agents shall not be liable 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 resulting from the use of or inability to use the Service.
    2. In no event shall Helcim or its officers, directors, employees, and agents be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with Helcim's website, the Service or the Terms of Service (however arising including negligence). You agree to indemnify and hold Helcim and (as applicable) its parent, subsidiaries, affiliates, Helcim partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including legal fees, made by any third party due to or arising out of your breach of the Terms of Service or your violation of any law or the rights of a third party.
    3. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis without any warranty, representation or condition, express, implied or statutory.
    4. Helcim and its officers, directors, employees, and agents make no warranty, representation, or condition: (a) that the Service will meet your requirements or expectations, (b) that your access to or use of the Service will be uninterrupted, timely, secure or error free, (c) that any defects in the Service will be corrected, or (d) that the Service or any server through which you access the Service is free of viruses or other harmful components.
    5. You understand that in using the Service, sensitive information will travel through third party infrastructures which are not under Helcim's control (such as a third party servers). Helcim makes no warranty with respect to the security of such third party infrastructures.
    6. Any material downloaded or otherwise obtained through the use of the 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.
    7. No advice or information, whether oral or written, obtained by you from Helcim or through or from the Service shall create any warranty not expressly stated in the Terms of Service.

  6. Intellectual Property and Account Content
    1. As between you and Helcim, Helcim owns all right, title and interest in the Service and the Work Product, including all modifications and additions to the foregoing, and all intellectual property in the foregoing (collectively, the "Helcim Property"). In the Terms of Service, "Work Product" means all work product created in connection with the Service, including text, graphics, images, illustrations, artwork, maps, photographs, layouts, fonts, visual and audio recordings, websites, software, codes, HTML, JavaScripts and other content in whatever form or media, but does not include the Account Content.
    2. You may not: (i) copy, modify, or reverse engineer any part of the Service or any other Helcim Property (except to the extent such restriction is prohibited by applicable law); or (ii) rent, sell, lease, distribute or otherwise use the Service or any other Helcim Property for the benefit of any third party. The names, logos or trademarks of any third party companies and products mentioned on the Service (including, without limitation, a Third Party Provider (as defined below)) may be the trademarks of their respective owners.
    3. Helcim does not claim any intellectual property rights over the Account Content. However, Helcim shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your Account to promote the Service.
    4. By uploading Account Content, you agree: (a) to allow other internet users to view your Account Content; (b) to allow Helcim to display and store your Account Content; and (c) that Helcim can, at any time, review all the Account Content. You are responsible for compliance of Account Content with any applicable laws or regulations.
    5. Helcim will not disclose your confidential information to third parties, except as required in the course of providing the Service. Confidential information includes any materials or information provided by you to Helcim which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time Helcim received it; (b) comes into the public domain after Helcim received it through no fault of Helcim; (c) Helcim received from someone other than you without breach of Helcim or its confidentiality obligations; or (d) Helcim is required by law, governments, or law enforcement or regulatory agencies to disclose.
    6. Helcim respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of Account Owners who repeatedly infringe others' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify and provide the following information to Helcim: (a) a description of the copyrighted work or other intellectual property that you claim has been infringed; (b) description of where the material that you claim is infringing is located; (c) your address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.

  7. Fraud Defender Service
  8. In addition to the terms applicable to the Service generally, the following terms apply to your access and use of Helcim's fraud defender service (the "Fraud Defender Service").

    1. You expressly understand and agree that the Fraud Defender Service provides a risk score based on certain transaction factors, which have not been verified by Helcim and such score does not constitute or imply an approval, endorsement, certification, guarantee, disapproval or rejection by Helcim of a customer. Your use of the Fraud Defender Service is at your sole risk and Helcim assumes no liability or responsibility for the Fraud Defender Service.
    2. You expressly understand and agree that Helcim and its officers, directors, employees, and agents shall not be liable 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 resulting from the use of or inability to use the Fraud Defender Service.
    3. The Fraud Defender Service is provided on an "as is" and "as available" basis without any warranty, representation or condition, express, implied or statutory. Helcim and its officers, directors, employees, and agents make no warranty, representation or condition about the accuracy, completeness, or content of the Fraud Defender Service.
    4. You acknowledge and agree that the Fraud Defender Service will not constitute legal or financial advice and that you should consult an appropriate professional for specific advice tailored to your situation.

  9. Cancellation and Termination
    1. Helcim reserves the right to terminate the Service or your Account for any reason, without notice at any time.
    2. You may cancel your Account at any time by emailing support@helcim.com and then following the specific instructions indicated to you in Helcim's response.
    3. Upon termination of the Service by either party for any reason:
      • (a) Helcim will cease providing you with the Service and you will no longer be able to access your Account;
      • (b) unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any fees, pro rata or otherwise;
      • (c) any outstanding fees owed to Helcim for your use of the Service through the effective date of such termination will immediately become due and payable in full; and
      • (d) Helcim will have no obligation to retain any data, information or material that you have submitted to or stored on or through the Service following 30 days after termination of the Service, and Helcim may in its sole discretion destroy any such data, information or material after that period. Data, information or material that is in breach or violation of the Terms of Service may be deleted immediately.

  10. Modifications to the Service
    1. Helcim reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
    2. Helcim shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

  11. Third Party Services
    1. In addition to the Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Helcim's partners or other third parties.
    2. Helcim may from time to time recommend, provide you with access to, or enable third party software, applications, products, services or website links (collectively, "Third Party Services") for your consideration or use. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider ("Third Party Provider"). Any use by you of Third Party Services offered through the Service or Helcim's website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
    3. Helcim does not provide any warranties with respect to Third Party Services. You acknowledge that Helcim has no control over Third Party Services, and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Helcim's websites or the integration or enabling of such Third Party Services with the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Helcim. Helcim strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
    4. If you install or enable a Third Party Service for use with the Service, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Helcim is not responsible for any disclosure, modification or deletion of your data or Account Content, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or Account Content.
    5. Under no circumstances shall Helcim be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider.

  12. Miscellaneous
    1. The failure of Helcim to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.
    2. The Terms of Service constitutes the entire agreement between you and Helcim and govern your use of the Service, superseding any prior agreements between you and Helcim (including, but not limited to, any prior versions of the Terms of Service). Without limiting the previous sentence, the Service may interface with third-party systems (including those of financial institutions) that are governed by their own terms and conditions, and it is your responsibility to read and comply with any such terms and conditions.
    3. None of you or any of your successors may assign the Terms of Service, or any rights hereunder, directly or by operation of law, without the prior written consent of Helcim which consent may be withheld for any reason, at Helcim's sole discretion. Helcim may assign the Terms of Service in whole or part at any time.
    4. The provisions of the Terms of Service are intended for the benefit of, and are enforceable solely by, the parties hereto, and nothing in the Terms of Service shall be construed as giving any other person any right, remedy or claim under or in respect of the Terms of Service or any provision hereof.
    5. The parties shall be independent contractors under the Terms of Service, and nothing herein shall constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
    6. Should any provision of these terms be found invalid or unenforceable, such provision shall be limited or deleted to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable.
    7. The Terms of Service shall be governed by and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Alberta with respect to any dispute or claim arising out of or in connection with the Terms of Service.
    8. The parties have required that the Terms of Service and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y rattachent soient rédigés en anglais.