BY ENTERING INTO THIS AGREEMENT BY PHYSICAL OR ELECTRONIC SIGNATURE, BY CLICKING ON THE APPROPRIATE ACCEPTANCE BUTTON, BY ENTERING INTO ANOTHER AGREEMENT WITH PAYMENT RAILS IN WHICH THESE API TERMS ARE INCLUDED (THE “MASTER AGREEMENT”) AND / OR BY DOWNLOADING, ACCESSING OR OTHERWISE USING THE API OR ANY PORTION THEREOF, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THESE API TERMS. YOU AGREE THAT THESE API TERMS ARE ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOUR USE OF THE API CONSTITUTES ACCEPTANCE OF THESE API TERMS. IF YOU ARE ENTERING INTO THESE API TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE API TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, ACCESS AND / OR USE THE API OR ANY PORTION THEREOF.
These API Terms do not govern Your use of Payment Rails products or services other than the API. Your use of such products or services shall be governed by and is subject to Your agreeing to the terms of separate software licenses or other agreements for such products or services. If You have entered into the Master Agreement but do not use the API, these API Terms do not apply to You.
(A) “API” means the Payment Rails Application Programming Interface which may be made available in any form and through any medium, as well as any and all Enhancements thereto;
(B) “API Documentation” means the documentation found at the URL http://docs.paymentrails.com/ and any other documentation which may be distributed or made available by Payment Rails to API users from time to time;
(C) “Authorized Applications” means software applications, websites, web applications or other software products or processes developed by You using the API;
(D) “Distributable Code” means any templates, code stubs, code snippets, example applications, sample code, code fragments and Software Development Kits (SDKs) in any form whatsoever included as part of the API, made available through the API Documentation, or linked to from the API Documentation;
(E) “Enhancements” means new versions, releases, service packs, bug fixes or other enhancements, upgrades, updates, revisions, or modifications of or to the API;
(F) “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing; and
(G) “Party” means either Payment Rails or You, as applicable, and “Parties” means Payment Rails and You.
2. API License, Uses and Restrictions
2.1. License Grant. Subject to the terms and conditions of these API Terms, Payment Rails grants You a personal, worldwide, revocable, non-exclusive, royalty-free, non-transferable license: (i) to use the API solely for the purposes of developing, testing and debugging Your Authorized Applications; and (ii) to use and make a reasonable number of copies of the API Documentation for its use in connection with the API.
2.2. Use of the Distributable Code. Subject to the terms and conditions of these API Terms, You may use, modify or merge all or portions of the Distributable Code with Your Authorized Applications and distribute it only as part of Your Authorized Applications. Any modified or merged portion of the Distributable Code is subject to these API Terms. You may distribute any Distributable Code provided that You shall: (i) add functionality to it in Your Authorized Applications; (ii) not include Distributable Code in malicious, deceptive or unlawful applications; and (iii) not modify, distribute or convey any Distributable Code so that the Distributable Code or any application to which it links, or of which it is a part, becomes subject to an Open Source License. An “Open Source License” is a license which requires, as a condition of license, use, modification, distribution of any software subject to such license that such software (or other software incorporated into, integrated with, derived from and/or distributed with such software) be: (i) disclosed or distributed in source code form to third parties; (ii) licensed to third parties for the purpose of making derivative works; and/or (iii) be redistributable to third parties at no charge.
2.3. Restrictions. The API is licensed, not sold. You may not rent, lease or lend any of Your rights in the API. You may not use the API or any other technology in a manner: that accesses or uses any information beyond what Payment Rails allows under these API Terms or the API Documentation; that changes the Payment Rails Services; that breaks or circumvents any of Payment Rails’ technical, administrative, process or security measures; that disrupts or degrades the performance of the Payment Rails Services or the API; or that tests the vulnerability of Payment Rails’ systems or networks.
2.5. Reservation of Rights. Except for the licenses expressly granted under these API Terms, Payment Rails (or its licensors/suppliers) retains all right, title and interest (including all Intellectual Property Rights) in and to: (i) the API (including any Enhancements and Distributable Code); (ii) the API Documentation; (iii) all Payment Rails Trademarks; and (iv) all Intellectual Property Rights related to any of the foregoing.
2.6. Feedback. Payment Rails shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the API or other feedback that You may propose or make (collectively, “Feedback”). You hereby irrevocably assign all right, title and interest in and to the Feedback to Payment Rails and waive in favour of Payment Rails, its successors and assigns any and all moral rights that You have or may have in the Feedback. You agree to provide Payment Rails such assistance, as it may require, to document, perfect, and maintain Payment Rails’ rights to the Feedback.
3. Trademark License
3.1. License. Subject to the terms and conditions of these API Terms, Payment Rails grants You a personal, revocable, non-exclusive, royalty-free, non-transferable license to use, reproduce and display the Trademarks only in association with Your Authorized Applications. If Payment Rails provides You with substitute Trademarks, You shall bear all liability for continued use of the previous Trademarks.
3.2. Limitations. You shall not, in any manner without having obtained the prior written consent of Payment Rails which may be withheld at its sole discretion: (i) use the Trademarks with any goods, wares, services or merchandises of any kind which are not included in, or envisioned by, the API; (ii) use any other trademark, logo or symbol in combination with the Trademarks or which are confusingly similar to the Trademarks; or (iii) use the Trademarks other than as specifically authorized under these API Terms.
3.3. Acknowledgement. You acknowledge that Payment Rails (or its licensors/suppliers) is the sole and exclusive owner of, and retains all right, title and interest in and to, to the Trademarks and all associated goodwill. You will not acquire and will not claim any title to the Trademarks adverse to Payment Rails by virtue of the license granted herein, or through Your use of the Trademarks.
3.4. Standards. You shall comply with any and all standards, policies or instructions provided, from time to time, by Payment Rails regarding the use of the Trademarks. You agree to undertake such steps as Payment Rails may reasonably request to assist in monitoring and maintaining the quality and form of use of the Trademark. If Payment Rails so requests, You agree to submit to Payment Rails any uses of the Trademarks for Payment Rails’ approval prior to the dissemination of these materials, such approval not to be unreasonably withheld. If at any time Payment Rails determines that You are not maintaining adequate quality standards, You shall be considered in breach of these API Terms and subject to the termination provisions of Section 4.2.
4. Term; Termination
4.1. Term. These API Terms shall be effective upon Your agreement to be bound by its terms (as manifested by the conduct described in the second paragraph on the first page of these API Terms) and shall end upon termination of these API Terms in accordance with the provisions set out herein.
4.2. Termination. If You are dissatisfied with any aspect of the API, Your sole and exclusive remedy is to cease using the API, which shall terminate these API Terms between You and Payment Rails. Payment Rails reserves the right to discontinue offering the API or to modify the API at any time in its sole discretion. Payment Rails may also, in its sole discretion, terminate or suspend access to the APIs at any time. Payment Rails may also terminate these API Terms immediately, without judicial intervention, if You fail to comply with any term herein. You acknowledge that termination and/or monetary damages may not be a sufficient remedy if You breach these API Terms and that, notwithstanding anything to the contrary in these API Terms, Payment Rails will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach or threatened breach. Upon termination of these API Terms, You must remove promptly all copies (full and partial) and all component parts of the API from Your computer or other systems and discontinue the use of the API. This Section 4.2 and Sections 6, 7 and 8 will survive termination of these API Terms or any discontinuation of the offering of the API, along with any other provisions that would by their very nature reasonably be deemed to survive such termination.
5.1. YOU HEREBY EXPRESSLY AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE API IS AT YOUR SOLE RISK AND THAT PAYMENT RAILS IS PROVIDING THE API “AS IS”. ACCORDINGLY, PAYMENT RAILS AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, IN RESPECT OF THE API, INCLUDING WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
5.2. PAYMENT RAILS DOES NOT WARRANT, GUARANTEE OR REPRESENT TO YOU THAT THE API WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE API WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY API DEFECTS WILL BE CORRECTED.
5.3. Payment Rails is under no obligation to provide any support under these API Terms, including any Enhancements of the API or any portions thereof, to You or to any other party.
5.4. You acknowledge that the limitations and exclusions set out in these API Terms (including under Sections 5 and 6) reflect the fact that the API is made available to You at no charge or minimal charge, and that Payment Rails would not be able to offer You any API or API if these limitations and exclusions were not in place.
6. Limitation of Liability
6.1. Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PAYMENT RAILS, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS: (I) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF RELATING TO THESE API TERMS, OR CAUSED BY THE USE, MISUSE OR INABILITY TO USE THE API OR ANY ITEMS IN THE API OR THE API DOCUMENTATION, EVEN IF PAYMENT RAILS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6.2. Amount Limitation. Payment Rails’ aggregate liability and that of its affiliates and suppliers under or in connection with these API Terms will be limited to the amount paid for the API, if any.
You agree to indemnify and hold harmless Payment Rails and its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns against any claim, action, proceeding, liability, loss, damage or expense (including reasonable attorney’s fees and expenses) by reason, or arising out of, or relating to the use or distribution of Your Authorized Applications. You shall, at the request of Payment Rails, assume the defence of any demand, claim, action, suit or proceeding against Payment Rails by reason thereof and pay any and all damages assess against or that are payable by Payment Rails as the result of the disposition of any such demand, claim, action, suit and proceeding. Notwithstanding the foregoing, Payment Rails may be represented in any such demand, claim, action, suit or proceeding at its own expense and by its own counsel.
8. General Provisions
8.1. Governing Law; Jurisdiction. These API Terms will be governed by, interpreted and construed in accordance with the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with these API Terms, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the Province of Ontario, Canada, in the city of Toronto. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to these API Terms or to any dispute arising therefrom.
8.2. Relationship of Parties. These API Terms are an agreement between separate legal persons and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party.
8.3. Entire Agreement; Conflict with Master Agreement. These API Terms constitute the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, with respect to the API. In the event these API Terms are included as part of a Master Agreement and in the case of conflict between the Master Agreement and these API Terms, the terms of the Master Agreement shall prevail.
8.4. Assignment. You may not assign, delegate or otherwise transfer any of Your rights or obligations under these API Terms without Payment Rails’ prior written consent.
8.5. Severability. If any of the provisions contained in these API Terms are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby.
8.6. Waiver. The failure of a Party to enforce any provision of these API Terms shall not constitute a waiver of such provision or of the right of such Party to enforce such provision and every other provision.
© Payment Rails 2018
Last Revised: January 4th 2018.