Helcim Commerce - Terms of Service
Last Updated: 2018-04-23
The Terms of Service contain provisions that govern the resolution of all claims between you and Helcim, including an agreement and obligation to arbitrate disputes. The arbitration clause requires you to submit claims that you may have against Helcim to binding arbitration and to waive your rights to class-action proceedings.
You must read, agree with and accept the Terms of Service before you may apply for an account or use the Services.
- You must be 18 years old or older and at least the age of majority in the jurisdiction where you reside and the jurisdiction from which you use the Services.
- To access and use the Services, you must apply for an account (the “Account”) by providing Helcim your
- full legal name;
- business name (if applicable);
- mailing address;
- phone number;
- email address; and
- any other information indicated as required (collectively your “Contact Information”).
- Helcim may reject your application for an Account, or cancel an existing Account, for any reason, in its sole discretion. You agree that you will keep your Contact Information correct, accurate and complete and that you will contact Helcim if there are any changes to your Contact Information.
- You acknowledge that Helcim will use the email address you provide as the primary method for communication.
- You are responsible for keeping your username, password and account PIN secure (collectively your “Login Information”). Helcim cannot and will not be liable for any loss or damage from any failure to protect your Login Information.
- You are responsible for all activity on your Account and any content including, but not limited to, data, text, links, information, materials, illustrations, layout, images, photos, graphics, videos and audio files that are created, generated, uploaded to, or provided by your Account, but not including credit card information (collectively, “Account Content”).
- Your Account may initially contain materials including, but not limited to, example products and services (collectively, “Demonstration Content”). The Demonstration Content is provided for demonstration purposes only and should be modified or deleted from your Account before payment processing has been enabled for your Account.
- Your use of the Services and Account Content must comply with Helcim’s Acceptable Use Policy (the “AUP”) which is available at https://www.helcim.com/policies/acceptable-use/. By agreeing to the Terms of Service, you agree that you have read, understood and agree to the AUP – please take the time to read the AUP as it includes important terms which apply to you.
- If you create user profiles to allow other individuals access to your Account and Account Content (“Secondary Users”) you agree that you are responsible for all activity on your Account including all Secondary User activity. You agree to ensure that all Secondary Users are aware of, and abide by, the Terms of Service.
- With respect to Account Content, you agree:
- to allow others to view your Account Content;
- to ensure that your Account Content complies with the AUP;
- to allow Helcim to display and store your Account Content;
- that Helcim can, at any time, review your Account Content; and
- that you are responsible for compliance of your Account Content with any applicable laws or regulations.
- Any breach or violation of the Terms of Service, as determined in Helcim’s sole discretion, may result in an immediate termination of your Account and/or deletion of any Account Content.
- Subject to section 2(b), the person signing up for the Account 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 and Login Information Helcim may provide to the Account Owner in connection with the Services.
- If you are signing up for an Account on behalf of your employer, your employer shall be the Account Owner. If you are signing up for an Account on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to the Terms of Service.
- 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.
- You acknowledge and agree that Helcim may amend the Terms of Service at any time by posting the amended Terms of Service on Helcim’s website, available https://www.helcim.com/policies/tos/.
- You acknowledge and agree that any 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 the amended Terms of Service, do not continue to use the Services.
- Helcim will make reasonable efforts to keep the Services operational except for any unavailability caused by:
- planned downtime;
- system outages; or
- 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.
- You acknowledge and agree that:
- Helcim is not a bank, financial institution, or other chartered depository institution; and
- Helcim will not be holding any monies or other property for you or your customers.
- You may not use the Services for any illegal, fraudulent or unauthorized purpose nor may you, in the use of the Services, violate any laws applicable to you in your jurisdiction, 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 Services.
- You must not transmit any worms, trojans, malware, viruses or any other code of a malicious or destructive nature.
- You understand that your Account Content may be
- transmitted unencrypted over public or private networks; or
- modified to conform and adapt to technical requirements of connecting networks or devices.
- Helcim may, but has no obligation to, remove Account Content or terminate an Account that contains content that Helcim determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or otherwise violates the Terms of Service or the AUP.
- Verbal or written abuse of any kind (including threats of abuse or retribution) towards any Helcim employee, customer, contractor, member, director or officer will result in immediate Account termination.
- Helcim does not pre-screen Account Content and Helcim may, at any time, in its sole discretion, refuse to provide the Services or remove any Account Content.
- Helcim reserves the right to provide the Services to anyone and makes no promise of exclusivity.
- Helcim reserves the right to determine, in its sole judgment, rightful Account ownership and to transfer an Account to the rightful owner. In the event of an ownership dispute, Helcim may temporarily disable an Account until the ownership dispute is resolved.
- In the event of a dispute regarding Account ownership, Helcim may request documentation to resolve the dispute. You agree to provide any requested documentation within 15 days.
Limitation of Liability and Disclaimer of Warranties
- You acknowledge and agree that Helcim, and any officers, directors, employees, and agents of Helcim, and Helcim’s vendors, resellers, distributors, and other contractors, shall not be liable for any consequential, aggravated, punitive, special, exemplary, incidental, direct or indirect damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, under any theory or cause of action whether in tort, contract or otherwise, resulting in any way from the use of, inability to use, or the improper operation of the Services or Helcim’s website (however arising, including negligence).
- Your use of the Services is at your sole risk. The Services are 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, contractors and agents make no warranty, representation or condition about the accuracy, availability, completeness, suitability, or content of the Services.
- The Services and your Account may contain initial configuration information including, but not limited to, tax rates for various jurisdictions in Canada and the United States (the “Initial Configuration”). The Initial Configuration is provided for convenience only, and Helcim and its officers, directors, employees, contractors and agents make no warranty or representation that the Initial Configuration is correct, complete or suitable for the Account Owner’s intended use of the Account.
- Helcim and its officers, directors, employees, contractors and agents make no warranty, representation, or condition: (i) that the Services will meet your requirements or expectations, (ii) that your access to or use of the Services will be uninterrupted, timely, secure or error free, (iii) that any defects in the Services will be corrected, or (iv) that the Services or any server through which you access the Services is free of malicious software or other harmful components.
- You understand that in using the Services, sensitive information will travel through third-party infrastructure which is not under Helcim’s control. You acknowledge that Helcim makes no warranty with respect to such third-party infrastructure.
- Any material downloaded or otherwise obtained through the Services is accessed at your own discretion and risk, and Helcim is not responsible for any damage or loss of data that results from such material.
- No advice or information, whether oral or written, obtained by you from Helcim or through or from the Services shall create any right, warranty or condition not expressly stated in the Terms of Service.
- “Work Product” means all work product created in connection with the Services, including text, graphics, images, illustrations, artwork, maps, photographs, layouts, fonts, visual and audio recordings, websites, software, computer code, script or markup, and other content in whatever form or media, including Demonstration Content, but not including your Account Content.
- As between you and Helcim, you agree that Helcim owns all right, title and interest in the Services and the Work Product, including all modifications and additions to the foregoing, and all intellectual property in the foregoing (collectively, the “Helcim Property”).
- You may not: (i) copy, modify, or reverse engineer any part of the Services or Helcim Property (except to the extent such restriction is prohibited by applicable law); or (ii) rent, sell, lease, distribute or otherwise use the Services or Helcim Property for the benefit of any third party. The names, logos or trademarks of any third-party companies and products mentioned on the Services (including, without limitation, a Third-Party Provider (as defined below)) may be the trademarks of their respective owners.
- Helcim does not claim any intellectual property rights over your Account Content. However, you agree to grant Helcim a non-revocable license to use the names, trademarks, service marks and logos associated with your Account to promote the Services.
- Helcim will not disclose your Confidential Information to third parties, except as directed by the Account Owner or required in the course of providing the Services. “Confidential Information” includes any materials or information provided by you to Helcim which is not publicly known. Confidential Information does not include information that: (i) was in the public domain at the time Helcim received it; (ii) comes into the public domain after Helcim received it through no fault of Helcim; (iii) Helcim received from someone other than you without breach of Helcim or its confidentiality obligations; or (iv) Helcim is required to disclose by law or court order.
Fraud Defender ServiceIn addition to the Terms of Service applicable to the Services, the following terms apply to your access and use of Helcim’s fraud defender service (the “Fraud Defender Service”).
- 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. Your use of the Fraud Defender Service is at your sole risk and Helcim assumes no liability or responsibility for the Fraud Defender Service.
- You acknowledge and agree that the Fraud Defender Service does not constitute legal or financial advice and that you should consult an appropriate professional for specific advice tailored to your situation.
Cancellation and Termination
- Helcim reserves the right to terminate your Account for any reason, without notice, at any time.
- You may terminate your Account at any time by emailing firstname.lastname@example.org and following the instructions provided.
- Upon termination of your Account:
- Helcim will cease providing you with the Services and you will no longer be able to access your Account;
- unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any fees, pro rata or otherwise;
- any outstanding amounts owed to Helcim for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
- Helcim will have no obligation to retain or preserve any of your Account Content.
Modifications to the Service
- Helcim reserves the right at any time, and from time to time, to modify or discontinue the Services (or any portion thereof) without notice.
- Helcim shall not be liable to you or to any third party for any modification, price change, suspension, data loss, or discontinuance of the Services.
- 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.
- 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 provider of the service (the “Third-Party Provider”). Any use by you of any Third-Party Service is entirely at your own risk and discretion. It is your responsibility to read the terms and conditions and related policies applicable to such Third-Party Services before using them.
- 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 in respect of any Third-Party Services. The availability of Third-Party Services on Helcim’s website or the integration or enabling of such Third-Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Helcim. Helcim strongly recommends that you seek expert advice before using or relying on Third-Party Services.
- If you install or enable a Third-Party Service for use with the Services, you grant Helcim permission to allow the applicable Third-Party Provider to access your Account Content and to take any actions required for the interoperation of the Third-Party Service with the Services.
- If you install or enable a Third-Party Service for use with the Services, you agree that you remain responsible for ensuring that your Account and Account Content comply with the Terms of Service.
- Any exchange of data or other interaction between you and the Third-Party Provider is solely between you and the Third-Party Provider. Helcim is not responsible for any disclosure, modification or deletion of your data or Account Content, or for any corresponding loss or damage you may suffer, as a result of access by a Third-Party Service or a Third-Party Provider to your Account Content.
- Under no circumstances shall Helcim or its officers, directors, employees, contractors and agents be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, which result from any Third-Party Services or your relationship with any Third-Party Provider.
- 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.
- The Terms of Service constitutes the entire agreement between you and Helcim and governs your use of the Services, superseding any prior agreements between you and Helcim (including, but not limited to, any prior versions of the Terms of Service). Without limiting the foregoing, the Services 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.
- None of you or any of your successors may assign any of the rights or obligations under the Terms of Service 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. You agree that Helcim may assign its rights or obligations under the Terms of Service in whole or in part at any time.
- 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.
- Nothing herein shall be interpreted to mean that either party is the employer, employee, agent or representative of the other party, or that the parties are partners for any purpose.
- Should any provision of the Terms of Service 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.
- 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 conflict of laws principles. Subject to section 12, the parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta in the judicial centre of Calgary with respect to any dispute or claim arising out of or in connection with the Terms of Service or the use of the Services.
Binding ArbitrationExcept where prohibited by applicable law, any controversy, claim or dispute arising out of or relating to the Terms of Service, or the Services or the relationship which results from these Terms of Service, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in the Terms of Service or your receipt and use of the Services, which cannot be amicably resolved, (collectively, a “Claim”), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Calgary, Alberta in English pursuant to the Alberta Arbitration Act RSA 2000, c A-43, as amended, replaced or re-enacted from time to time. The arbitrator will be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim, controversy or dispute of any other party. Except where prohibited by applicable law, you agree to waive any right you may have to commence or participate in any class action against Helcim, its officers, directors, employees, contractors, or agents relating to any Claim and you also agree to opt out of any such class proceeding. Notwithstanding the foregoing, Helcim reserves the right to pursue the protection of any intellectual property rights or confidential information through injunctive or other relief through the courts.