Legal, Terms & Conditions
— USER SERVICES AGREEMENT AMERICA
This User Services Agreement (“Agreement”) is entered into by and between you (either an individual or a business entity) (“You” or “Your”) and AmericaPayments.com, (“Our”, “Us” or “We”) (each of which is a “Party,” and collectively the “Parties”), to govern Your use of Our Services. To use Our Services, You must select “I Agree” to acknowledge Your consent to the terms of this Agreement. If You click “I Agree” without reading this Agreement, You are still agreeing to be bound by all of the terms of this Agreement without limitation. If You do not agree to be bound BY ALL OF THE TERMS OF THIS AGREEMENT, do not click “I Agree,” do not create an account and do not access or use Our Services.
1.1. “Business Day” means a day on which commercial banks settle payments in the same currency as the Remittance payable on that date and are open for general business in America.
1.2. “Card” means any card, whether credit or debit, bearing the name and logo of a participating financial transaction processor that You have requested Us to accept from Customers as You indicate to Us in writing from time to time.
1.3. “Cardholder” means the Customer whose name is embossed on a Card or whose signature appearing in the signature panel of the Card indicates the authorized user.
1.4. “Card Transaction” means a payment of Funds, a Refund, or any other sale or credit to be charged, debited from or credited to the Card account of a Cardholder on the basis of a Card properly honoured by You pursuant to the terms of this Agreement.
1.5. “Chargeback” means a potential or expected claim made by a Customer’s Financial Institution against Us or You for refunding the Customer’s Funds payment together with any fees and charges withheld by, or due to, the Customer’s Financial Institution(s), in connection with a claim by a Customer that You have failed to perform Your obligations towards Customer, or that for any reason the Funds are not due and payable.
1.6. “Corporate Creditor Identification Number” or “CCIN” means the identification number issued by the CPA to Us for the purpose of processing Online Bill Payments.
1.7. “CPA” means the Canadian Payments Association created by the Canadian Payments Association Act, R.S.C. 1985, c. C-21, as amended.
1.8. “CPA Rules” means the rules and standards set by the CPA and which are applicable to the Services including, without limitation, Rule H6 pertaining to the Inter-Financial Institution Exchange of Bill Payment Remittances for the Purpose of Clearing and Settlement (Parts I and II).
1.9. “Customer(s)” means the Person(s) who or which have entered into an agreement with You for the payment of Funds to You.
1.10. “Customer’s Financial Institution” means an entity that processes the payment instructions received from a Customer for the payment of Funds.
1.11. “Customer Identifier Number” means the number assigned by You to the account of a Customer used to identify the Customer to You.
1.12. “Dashboard” means the user interface on the Website where You can access features including but not limited to a list of Your properties, Customers, and Recurring Payments and other payments, and any other heading relevant to Your business.
1.13. “Floor Limit” is a term used by financial transaction processors to specify the threshold transaction dollar amount below which You are not required to obtain authorization for Card Transactions. Under this Agreement, the Floor Limit on all Card Transactions is always zero.
1.14. “Funds” means amounts authorized by a Customer to be transmitted to Us for payment to You.
1.15. “Invoice” means any paper-based or electronically presented document, including without limitation, a bill, invoice or any statement issued by You to Your Customers as a request for payment.
1.16. “Laws” means all applicable provincial, federal and local laws, statutes and regulations, and all applicable orders, judgments, decisions, recommendations, rules, policies or guidelines passed or issued by Parliament, a provincial legislature, a government or any competent court or authority relating to the submission and completion of transactions under this Agreement, and the operation of Your business, as amended from time to time.
1.17. “Member Bank” means any entity which is a member of either MasterCard Canada Inc. or MasterCard International, Inc. (collectively, “MasterCard”), VISA Canada Inc. or VISA International, Inc. (collectively, “Visa”).
1.18. “Online Bill Payment” means a payment of Funds, a Refund or any other sale of credit by way of Bill Payment Remittance Processing (as that term is defined by Rule H6 of the CPA Rules) by electronic means.
￼1.19. “Person” means an association, a corporation, an individual, a partnership, a limited liability company, an unlimited liability company, a trust or any other entity or organization.
1.20. “Personal Information” is information about an identifiable individual. It includes among other things an individual’s name, address, telephone number, age, health, financial and educational information, and identifying numbers and/or symbols associated with an individual such as a social insurance or social security number. This is not an exhaustive list. Any information about an identifiable individual is that individual’s Personal Information.
1.21. “Pre-Authorization Debit (“PAD”) Agreement” means the Agreement entered into by You and Your Customer granting Us permission to withdraw Customer Funds on Your behalf.
1.22. “Recurring Payment” means a periodic amount due and payable by Us to You calculated and payable in accordance with this Agreement.
1.23. “Recurring Transaction” means any Card Transaction in which the Cardholder wishes to purchase goods or services which are to be delivered or performed periodically;
1.24. “Refund” means any amount returned by Us to a Customer(s) account with a Customer’s Financial Institution based upon Your specific instructions.
1.25. “Remittance” means that portion, if any, of any Invoice that conforms to CPA Rules, or the electronic data that is submitted to the Customer’s Financial Institution by a Customer paying Funds by way of electronic bill payment along with payment, and which itself becomes a credit item representing value when subsequently exchanged by the Customer’s Financial Institution.
1.26. “Remittance Amount” means the monetary amount submitted by a Customer paying Funds by way of electronic bill payment along in payment of an Invoice, transfer of Funds or any other payment owed by the Customer to You.
1.27. “Remittance Information” means the information contained in the Remittance and any other data and information, agreed to, pursuant to the terms of this Agreement.
1.28. “Restricted Business” means any entity, or entity controlled directly or indirectly by an entity, that is a business engaged in or associated with an improper, illegal or unlawful activity or any other business that We may, in Our sole and unfettered discretion, determine is a Restricted Business.
1.29. “Reviewable Business” means any business that RFT may, in its sole and unfettered discretion, determine to be a high-risk business.
￼1.30. “Rules” means the rules, regulations and procedures of Visa and MasterCard as they may exist from time to time.
1.31. “Sales Draft” or “Credit Voucher” means the respective forms supplied by Us for the purpose of fully accomplishing a Card Transaction.
1.32. “Service Charge” means the charges, fees and prices for Our Services as calculated in accordance with this Agreement.
1.33. “Settlement Account” means a demand deposit account established at a financial institution capable of receiving credits and debits from the Automated Clearing Settlement (“ACSS”) system for the limited purposes of debiting or crediting You for Card Transactions pursuant to this Agreement.
1.34. “Settlement Date” means the day of the month You designate by which We will perform a Recurring Payment to You.
1.35. “Services” and “Service” means the payment processing services offered under this Agreement and made accessible through the Website, and any and all customer support provided for use of the same.
1.36. “Software” means specific computer program(s) the use of which is made available to You by Us hereunder, which includes but is not limited to Our proprietary automated payment technology and the Dashboard, and includes any and all accompanying documents, and any all improvements, derivations, enhancements and adaptations thereof.
1.37. “User Account” means an electronic stored value account unique to You that is created on the Website when You register to receive the Services, more particularly defined in Section 13.1.1 herein.
1.38. “Website” means the Software and all content available at https://www.AmericaPayments.com
- INITIAL REPRESENTATIONS.
You represent and agree that:
2.1. You understand that Our Service provides You with a means of collecting Funds, Recurring Payments and other payments from Your Customers. You maintain the sole responsibility for collecting Funds, Recurring Payments and other payments from Your Customers. Nothing in this Agreement obligates Us to collect Funds, Recurring Payments and other payments on Your behalf beyond the authorization Your Customer grants Us by (i) signing a PAD Agreement, (ii) entering into a Card Transaction with You through the Website, or (iii) entering into an Online Bill Payment with You through the Website. Without in any manner limiting the preceding, We do not guarantee the successful collection of Funds, Recurring Payments and other payments from Your Customers;
2.2. You are using Our web based Services to manage Your Canadian Customers, and You will not use Our Services for any other type of business unless expressly authorized to do so by Us through additional and/or supplementary written Service agreements between You and Us.
2.3. You have the power and legal authority to enter into this Agreement and the Person(s) signing for You or on Your behalf is/are specifically authorized and directed to do so by You;
2.4. You understand and will comply with any and all personal data protection and privacy laws and regulations pertaining to any and all Customer information used in conjunction with Your use of the Services, and You shall implement appropriate technical and organizational measures to protect such Customer information and comply with such data protection and privacy laws and regulations;
2.5. You understand and will comply with, respect and apply the CPA Rules as they may govern the relationship between You and Us and between You and Your Customers, and any other rules or regulations which may affect the Services provided by Us, as may be introduced in the future or are currently in effect and to execute and obtain such further documentation which may be prescribed from time to time by the Canadian Payments Association. Without limiting any of the foregoing, You agree not to initiate any debits which do not comply with the eligibility or other requirements set out in the CPA Rules;
2.6. You will not use Our Services for illegal purposes or in any manner inconsistent with this Agreement;
2.7. You will perform Your legal and contractual obligations towards Your Customer(s) in a timely fashion and in accordance with any agreement(s) between You and Your Customer(s).
2.8. You acknowledge that You are responsible for Your employees’ actions while in Your employ;
2.9. You shall be solely responsible for all enquiries, requests, questions, complaints, disputes and other issues from Customers and other Persons arising as a result of, or relating to, the Services. You shall be solely responsible for complying with the applicable Laws, Rules and CPA Rules applicable to the Services;
2.10. You hereby represent, warrant and covenant that:
￼(a) If You are a corporation, You are duly incorporated, organized and validly existing under Your laws of incorporation, and the execution, delivery of and performance by You of the obligations contained in this Agreement are within Your corporate powers and have been duly authorized by all necessary actions on Your part, and do not and will not conflict with Your present constating documents and by-laws;
(b) this Agreement, and for greater certainty, the indemnities contained within, constitute legal, valid and binding obligations, enforceable against You in accordance with their terms;
(c) all information provided to Us from time to time in connection with the Services is and will continue to be true, complete and accurate in all respects; and
(d) You will provide Us, within at least thirty (30) days, notice of any change to such information, including without limitation any change to the business or services provided by You.
- LICENSE; INTELLECTUAL PROPERTY RIGHTS.
3.1. We grant You a non-exclusive, non-transferable, license to use Our Services in accordance with the terms and conditions of this Agreement.
3.2. All uses of the Services not specifically authorized herein are restricted, and prohibited uses include but are not limited to: (i) developing methods to enable unauthorized parties to use the Services, (ii) allowing any part of the Software to be adapted, revised, copied, reproduced, varied, modified, distributed, transmitted, transcribed, stored in a retrieval system, decompiled, reverse engineered, disassembled, rearranged, or translated into any human or computer language, in any form or by any means, electronic, mechanical, magnetic, manual or otherwise, by You or any other Person, without Our prior express written consent, (iii) spamming or harassing a Customer through use of the Services, and (iv) using the Services in any manner that is inconsistent with this Agreement.
3.3. Third party software products or modules supplied by Us, if any, may be used solely with the Services, and may be subject to Your acceptance of terms and conditions provided by such third parties.
3.4. All rights not specifically granted to You herein are retained by Us.
3.5. We own all intellectual property rights in the Services, the Website, and the Software, including but not limited to patents, copyrights, trademarks, moral rights and all other forms of statutory or common law intellectual property protection.
￼3.6. If You submit to Us any materials, including feedback, data, questions, comments, ideas, concepts, techniques, or suggestions, You agree that such submissions are unrestricted and will be deemed non-confidential upon submission. You grant to Us a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
- FUNDS PAYMENT BY PRE-AUTHORIZATION DEBIT FROM CUSTOMER’S FINANCIAL INSTITUTION; PRE-AUTHORIZATION DEBIT AGREEMENTS; CUSTOMER DISPUTES.
4.1. You understand and agree that where You and Your Customer agree that Funds will be paid by way of direct withdrawal from the Customer’s Financial Institution, You will obtain a PAD Agreement completed and validly executed by each Customer in compliance with all applicable CPA Rules to permit Us to withdraw Funds from such Customer’s Financial Institution so that We may provide Our Services. You agree that by using Our Services to enable a payment or a series of Recurring Payments from a Customer’s Financial Institution, You represent and warrant to Us such a PAD Agreement has been obtained.
4.2. Pursuant to the terms in the PAD Agreement, (i) Your Customer may change or revoke the authorization granted by the PAD Agreement at any time upon You providing Us with notice, and (ii) We may refuse to provide Services in relation to any of Your Customers upon providing You with notice. In the event that We refuse to provide Services in relation to any particular Customer, neither You nor Your Customer shall have any recourse against Us, and the sole remedy to which You or Your Customer may be entitled is to enter into a new PAD Agreement which does not name Us as Your payment processor. We are not required to provide You notice of such a revocation other than what is available to You through the use of Our Services.
4.3. You shall bear all responsibility for handling disputes between You and Your Customers, and You agree to hold Us harmless from and indemnify Us against any and all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, associated with such disputes in accordance with the terms of Section 17 of this Agreement. Without in any manner limiting the preceding, You are solely responsible for all Chargeback claims associated with transactions processed through Your use of the Services. We shall use reasonable commercial efforts to assist You with respect to disputed Chargebacks, but You shall be ultimately responsible, financially and otherwise, for the resolution of such disputes.
4.4. You shall bear all responsibility for the accuracy and completeness of all information furnished to Us. You agree that We shall not be responsible in any way for errors or omissions resulting from the inaccuracy or incompleteness of any information furnished to Us by You or any officer, employee or agent of Yours. You agree that We￼may rely on the transit and account numbers that You provide Us, and You further agree that We are not required to confirm the correctness of the Customer’s name, the existence of obligations of any Customer, the existence, completeness or validity of the Customer’s PAD Agreement or to compare any account number with the account name.
4.5. You agree to provide Us with a copy of any PAD Agreement You have obtained from a Customer upon Our request.
- FUNDS PAYMENT BY CARDS
5.1. Through the Website, Customers may pay Funds to You by way of Card Transactions. You acknowledge that all Card Transactions are subject to the Rules and the Laws, and agree to comply with and be subject to all such Rules and Laws, including but not limited to Chargeback procedures and the resolution of any disputes relating thereto. The Rules and the Laws, as presently in effect and as they may be amended from time to time, are hereby incorporated by reference into this Agreement, and made a part hereof, as though fully set forth herein. Any violation of any of the Rules or Laws by You shall constitute a breach of this Agreement and may, at Our option and/or at the option of a Member Bank, be grounds for terminating this Agreement pursuant to Section 16.3.
5.2. You agree, represent and warrant that You have not been terminated from settlement of Card Transactions by any financial institution or determined to be in violation of any of the Rules, except as specifically disclosed to Us. You acknowledge that Our acceptance of this Agreement is conditional upon the final approval of a Member Bank and that this Agreement is not binding until approved by a Member Bank.
5.3. You further agree, represent and warrant that, as to each Card Transaction that You present to Us for collection: (i) the goods or services described on the Sales Draft have been delivered or completed in accordance with Your agreement with the Cardholder; (ii) the Cardholder has no defence, right of setoff, or counterclaim against You in connection with the purchase of the goods or services; (iii) the Card Transaction was placed by the Cardholder or other authorized user of the Card; and (iv) the Card Transaction was not previously declined or the subject of a Chargeback.
5.4. You shall prominently display any advertising or promotional materials required by Us or Our Member Bank to inform the public of the Cards that will be honoured by You, unless expressly exempted by the Rules. You shall not advertise or display any promotional material containing the name, logo or symbol of Our Member Bank, Visa or MasterCard which states or implies that only Cards issued by Our Member Bank will be honoured by You, nor shall You in any way indicate or imply that Our Member Bank, Visa or MasterCard endorse Your products or services.
￼5.5. Nothing in this Agreement is intended to restrict You from honouring other cards or from entering into any other transaction with a Customer. You may display and advertise any other credit card or credit plan. Visual parity shall be maintained between the Visa and MasterCard logos and symbols and any local/regional acceptance mark also displayed.
5.6. You agree to the following terms regarding the Program Marks of Visa and MasterCard: You are prohibited from using the Program Marks except as expressly authorized in writing by Us or Our Member Bank. “Program Marks” mean the brands, emblems, trademarks and/or logos that identify Visa and MasterCard Cards. Additionally, You shall not use the Program Marks other than to display decals, signage, advertising and other forms depicting the Program Marks that are provided to You by Us or Our Member Bank or otherwise approved in advance in writing by Us or Our Member Bank. You may use the Program Marks only to promote the services covered by the Program Marks by using them on decals, indoor and outdoor signs, websites, advertising materials and marketing materials, provided that all such uses must be approved in advance in writing by Us or Our Member Bank. You shall not use the Program Marks in such a way that the public could believe that products or services offered by You are sponsored or guaranteed by Us, Our Member Bank or the owners of the Program Marks. You recognize that You have no proprietary rights in the Program Marks, and You shall not assign or purport to assign to any third party any of the rights to use the Program Marks.
5.7. You shall have the right to use and display Program Marks only while this Agreement is in effect or until You are notified by Us, Our Member Bank, Visa or MasterCard to cease such usage or display, and then only in compliance with the applicable Rules concerning usage and display.
5.8. You shall have no right to use Our proprietary name, logo and/or symbol or the proprietary name, logo and/or symbol of Our Member Bank unless the materials containing such are provided to You by, and/or are approved in advance in writing by, Us or Our Member Bank.
5.9. You will honour, without discrimination, all Cards properly tendered by a Customer who is a Cardholder, and only in connection with a bona fide, legal transaction. You agree that if You elect to submit a transaction from a credit and/or debit card that You have not indicated to Us in writing that You desire to accept from Customers, You agree that We may process that transaction and assess the appropriate fee, and that all terms of this Agreement will apply to that transaction as if the said credit and/or debit card was a Card. You will not establish a minimum or maximum transaction amount as a condition for honouring a Card. You agree that Cardholders will be entitled to the same services and refund privileges as are extended to other Customers, and You will not impose any￼special conditions (unless permitted by the Rules) in connection with the acceptance of a Card.
5.10. You will use due diligence and verify that the Cardholder is authorized to use the Card presented and that such Card is not counterfeit. If the Card is present at the time of the Card Transaction, You shall examine the Card’s security features, such as the hologram and signature panel, before accepting the Card. You shall obtain an authorization on each Card Transaction in advance of completing each Card Transaction, as set forth in Sections 5.19, 5.20 and 5.21.
5.11. You will identify the Cardholder and check the expiration date and signature on each Card, and You will not honour any Card if: (i) the Card is not yet in effect, according to the effective dates thereon; (ii) the Card has expired; (iii) the signature on the Sales Draft does not correspond with the signature on the Card; (iv) the account number embossed on the Card does not match the account number on the Card’s magnetic strip (as printed in electronic form); or (v) the account number of the Card is listed on the most recent Combined Visa and MasterCard Electronic Warning Bulletin.
5.12. You may not require a Cardholder to provide Personal Information, such as a home or business telephone number, a home or business address, or a driver’s licence number as a condition for honouring a Card unless permitted by the Rules. You may not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
5.13. You will use Your reasonable and best efforts to recover any Card and return it to Our Member Bank if directed to do so by the authorization centre, or Us or by Our Member Bank. Reasonable and peaceful means are to be used to retrieve and retain any such Card. Nothing in this Section 5.13 or elsewhere in this Agreement shall be construed to create a duty to physically confront any Person or to otherwise risk harm in order to retrieve and retain a Card. You agree not to commit any breach of the peace or to cause any injury to Persons and/or property, and You hereby agree to hold Us and Our Member Bank harmless from and indemnify Us and Our Member Bank against any and all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, arising as a result of any attempt to retrieve or retain a Card in accordance with the terms of Section 17 of this Agreement.
5.14. You will not add any amount to the Funds You offer as a condition of paying with a Card, except as permitted by the Rules. This Section does not prohibit You from offering a discount from the standard Funds to induce a Person to pay by means other than a Card.
5.15. You shall include any tax required to be collected by You in the total Card Transaction amount. You shall not collect any such amount for tax separately.
￼5.16. You shall not accept any foreign credit cards not valid outside their country of issuance.
5.17. You shall not submit for payment any transaction that represents an existing Cardholder debt that is deemed uncollectible regardless of the terms and conditions of any written preauthorization between the Cardholder and You. You will not accept any payments from a Cardholder relating to previous charges for Funds or other merchandise or services already included in a Sales Draft, and if You receive any such payments You will promptly remit them to Us.
5.18. All disputes between You and any Cardholder relating to any Card transaction will be settled between You and the Cardholder. We bear no responsibility for such disputed transactions.
5.19. As stated in Section 5.10, You will obtain a prior authorization for the total amount payable by a Card by way of electronic terminal or device before completing any Card Transaction, and You will not process any transaction that has not been authorized. You will follow any instructions received during the authorization process. Upon receipt of authorization You may consummate only the Card Transaction authorized and must note and advise Us of the authorization number. Where authorization is obtained, You will be deemed to warrant the true identity of the Customer as the Cardholder.
5.20. Authorizations are not a guarantee of acceptance or payment of the Sales Draft. Authorizations do not waive any provisions of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card.
5.21. When You present Card transactions for authorization electronically, and if Your terminal is unable to read the magnetic stripe on the Card, You will obtain an imprint of the Card and the Cardholder’s signature on the imprinted draft before presenting the Sales Draft to Us for processing. Failure to do so may result in the assessment of a transaction surcharge on non-qualifying Card transactions. You bear responsibility for obtaining any equipment necessary to properly and accurately collect Card data, including an imprinter for use in circumstances when Your terminal is unable to read the magnetic stripe on the Card.
5.22. In effecting a Card Transaction, You will complete a Sales Draft or Credit Voucher in the following manner:
￼(i) If the Card is present at the time of the Card Transaction (a “Card Present Transaction”), imprint or swipe the Card through an electronic terminal with a suitable imprinter or electronic printer, such that all data embossed upon the face of the Card and upon Your imprinter plate is printed upon the Sales Draft or Credit Voucher, or in the alternative legibly type such data thereon.
(ii) You shall notify Us and Our Member Bank in the event that the information on Your imprinter plate is changed. Whenever a Card’s magnetic stripe cannot be read by the electronic terminal, You shall manually imprint the data embossed upon the face of the Card. Should You fail to do so, You will thereby waive any right to dispute Chargebacks arising from that Card Transaction. Each of Your outlets shall have its own processing software and terminal, and its own printer and manual imprinter with an accurate plate for use when the electronic printer is not functional or when a Card’s magnetic stripe cannot be read by the electronic terminal. Card Transactions completed at one of Your locations may not be processed through a terminal at another location.
(iii) You must ensure that each Sales Draft is legibly imprinted in the appropriate space with (a) Your name, location and unique Card merchant identification number; (b) the Cardholder’s name; (c) the Cardholder’s Card number, truncated to bear no more than the last four (4) digits of the Card number; (d) the date of the Card Transaction; (e) a brief description of the services purchased in sufficient detail to identify same; (f) the authorization code number for the Card Transaction; (g) the Sales Draft or Credit Voucher amount, which includes all applicable taxes for all charges incurred in the same Card Transaction; and (h) the words “Recurring Transaction,” if applicable.
(iv) For a Card Present Transaction, You shall require the Cardholder to sign the Sales Draft in Your presence, while retaining the Card as the Cardholder is signing in order to perform signature verification. You may not require the Cardholder to sign a Sales Draft before You have entered the final Card Transaction amount in the Sales Draft, including all applicable taxes.
(v) As noted, You must obtain authorization pursuant to Sections 5.19, 5.20 and 5.21 prior to consummating the Card Transaction and indicate the authorization code number in the appropriate space on the Sales Draft or Credit Voucher. The Floor Limit on all Card Transactions is always zero. You understand that authorization does not by itself relieve You of Your obligation to exercise due diligence, nor can it validate an otherwise invalid Card Transaction. You remain fully liable for all Chargebacks and fees related to invalid or disputed Card Transactions, regardless of whether prior authorization was obtained.
(vi) For Card Present Transactions, You shall complete the Card Transaction only if the signature on the Sales Draft or Credit Voucher appears to be the same as the authorized signature on the Card, and if the account number as read from the magnetic stripe is identical to the account number embossed on the front of the Card. If such identification is uncertain, or if You otherwise have suspicions about the validity of a Card, You shall￼contact Us or Our Member Bank for instructions. Except in the case of a Card Transaction carried out by way of Telephone Order (“TO”), Mail Order (“MO”), Electronic Commerce (“EC”) or Recurring Card Transaction, no Card Transaction may be completed unless the Cardholder presents his or her Card. You shall be liable for all Chargebacks and fees associated with magnetically altered, counterfeit or otherwise invalid Cards.
(vii) For Card Present Transactions, if the signature panel on the card is blank, or bears only the words “See I.D.” or similar language, You shall, in addition to requesting authorization, do all of the following: (a) review a current, official government-issued identification document bearing the Cardholder’s signature to determine that the Person presenting the Card is the Cardholder; (b) indicate that You have reviewed such identification on the Sales Draft or Credit Voucher, including making notation of any serial number and expiry date on the document reviewed; and (c) require the Cardholder to sign the signature panel of the Card prior to completing the Card Transaction.
5.23. You shall not (a) alter the total amount of a Sales Draft or Credit Voucher after the Card Transaction has been completed and the Sales Draft or Credit Voucher signed by the Cardholder; (b) present Sales Drafts or Credit Vouchers which You know, or should know, to be fraudulent or not authorized by the Cardholder; (c) divide a single Card Transaction between two (2) or more Sales Drafts or Credit Vouchers; (d) attempt multiple authorizations on a single Card; (e) submit to Us and Our Member Bank any Sales Drafts or Credit Vouchers using Card accounts affiliated with You, or Your principals or Your guarantors; (f) use the credit available on a Card to provide cash advances to Cardholders; or (g) force authorizations. Any of the prohibited actions in this Section 5.23 are grounds for immediate termination of this Agreement pursuant to Section 16.3 and may further result in all of Your Funds, including Funds in other Card accounts affiliated with You, or Your principals or Your guarantors, being garnished by Our Member Bank and/or the establishment of a Reserve Account as set forth in Section 13.3 of this Agreement.
5.24. You will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at the time of the transaction. You will retain the “merchant copy” of the Sales Draft or credit memorandum for at least three (3) years following the date of completion of the Card transaction (or such longer period as may be required by any applicable Rules).
5.25. Any electronic terminals or similar devices which You provide must meet Our requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by You to Us in the form We from time to time specify or as required by the Rules and/or the Laws. If We request a copy of a Sales Draft, Credit Voucher or other￼transaction evidence, You will provide it within twenty-four (24) hours following Our request.
5.26. Notwithstanding anything stated in this Agreement, under no circumstances shall We be responsible for processing credits and adjustments related to Sales Drafts not originally processed by Us.
5.27. We may impose a cap on the volume and ticket amount of Sales Drafts that We will process for You, as indicated to You by Us and which limit may be changed by Us upon written notice to You.
5.28. We may refuse to accept any Sales Draft and may revoke prior acceptance of any Sales Draft in the following circumstances: (i) the transaction giving rise to the Sales Draft was not made in compliance with the Agreement, the Rules and/or the Laws; (ii) the Cardholder disputes his liability to Us and/or You for any reason, including but not limited to a contention that the Cardholder did not receive the goods or services, that the goods or services were not as ordered or pursuant to the Chargeback rights set forth in the Rules; or (iii) the transaction giving rise to the Sales Draft was not directly between You and the Cardholder. You will pay Us any amount previously credited to You for a Sales Draft not accepted by Us or, where accepted, is revoked by Us.
5.29. Upon electing to accept a Card Transaction pursuant to an MO, TO or EC, or any other Card Transaction in which the Card and Cardholder are not present (a “Card Not Present” transaction), You shall:
(i) obtain authorization for any such Card Not Present transactions, and in so doing You shall obtain the expiration date or the Card and the 3-digit Card Validation Code number of the Card and submit both with Your authorization request;
(ii) Complete the Sales Draft in the manner set forth in Section 5.22 of this Agreement, and mark it MO or TO as the case may be on the signature line of the Sales Draft;
(iii) Assume all responsibility for the identification of the Cardholder and the validity of the Card information;
(iv) Obtain prior authorization not to exceed seven (7) days prior to the delivery of goods or the rendering of services to the Cardholder;
(v) Assume responsibility for Chargebacks if the Cardholder refuses to pay for any reason;
(vi) Perform an Address Verification Service (“AVS”) inquiry on the Cardholder and provide an order number and the appropriate indicator (MO or TO) in the electronic transaction￼record. Failure to do so will result in the Card Transaction being downgraded to a non- qualifying transaction. Obtaining an AVS and/or a Cardholder Verification Value (CVV2)/Card Validation Code (CVC2)/Card Identification Data (CID) validation does not guarantee Cardholder authentication or Chargeback protection. Performing AVS and providing an order number does not guarantee that a Card Transaction will be graded as a qualifying transaction;
(vii) For EC Card Transactions, include the Electronic Commerce Indicator (“ECI”) within the authorization record and settlement record; and
(viii) Provide a copy of the Sales Draft to the Cardholder at the earliest opportunity, and obtain an imprint of the Card and the Cardholder’s signature at the earliest opportunity when the Cardholder is present.
5.30. For Recurring Card Transactions, You shall obtain a written request from the Cardholder setting out the goods and services to be charged to the Cardholder’s account, the frequency of the recurring charge, and the duration of time during which such charges may be made. You shall retain the Cardholder’s written authorization for the duration of the recurring charges, and a copy of the written authorization must be provided promptly to the Cardholder in question upon his or her request. You shall not complete any initial or subsequent Recurring Transaction after receiving a cancellation notice from the Cardholder, Us or Our Merchant Bank. You shall type or print the words “Recurring Transaction” legibly on the signature line of the Sales Draft for a Recurring Card Transaction.
5.31. For each Recurring Card Transaction, You shall perform an AVS inquiry for at least the initial transaction and then annually thereafter, if applicable, and You shall obtain a valid authorization for each time a Recurring Card Transaction is charged to the Cardholder’s account. You shall provide Us with an AVS inquiry order number and a Sales Draft marked “Recurring Transaction” as set forth in Section 5.30 with each Recurring Card Transaction.
5.32. If a Cardholder elects to renew a Recurring Card Transaction, You shall obtain a new written request from the Cardholder for such Recurring Card Transaction, which request must comply with the provisions of Section 5.30.
5.33. You shall generally be required to include all items of goods and services purchased in a single Card Transaction in one total amount on a single Sales Draft. You￼may only effect a Card Transaction where only part of the amount due is included on a single Sales Draft when (a) the balance of the amount due is paid by the Cardholder at the time of sale in cash, by cheque, or both; or (b) in a delayed delivery scenario, in which a deposit is made by completion of one Sales Draft and payment of the balance is tendered by completion of a second Sales Draft, the latter Sales Draft being conditioned upon delivery of merchandise or the performance of services. In either of these scenarios, You shall obtain authorization for both Sales Drafts and You shall note on the Sales Draft the words “deposit” and “balance,” as appropriate. You shall not present the Sales Draft marked “balance” until the goods are delivered or the services are performed.
5.34. You shall present each Sales Draft to Us and Our Member Bank within one (1) business day of the Card Transaction, except that You shall not present a Sales Draft until You have performed all of Your principal obligations to the Customer in connection with the Card Transaction. You shall not directly or indirectly present any Sales Draft that did not originate as a result of an act between the Cardholder and Merchant. Upon such delivery to Us of a Sales Draft, We will give You provisional credit for the face amount of such Sales Draft, less (i) Chargebacks, (ii) amounts required to fund the Reserve Account pursuant to Section 13.3, (iii) any additional fines, fees and charges payable to Financial Institutions arising as a result of the transactions processed hereunder; (iv) any and all adjustments resulting inaccuracies uncovered by final checking and auditing of Sales Drafts in accordance with the Rules; (v) any other situation constituting suspected fraud or a breach of this Agreement; and (vi) Service Charges due to Us from You under this Agreement. Such credit may be given by credit to Your User Account as defined in Section 13.
5.35. If We or Our Member Bank reasonably believe that a Chargeback is likely with respect to a Card Transaction or Sales Draft accepted by Us or Our Member Bank, We and Our Member Bank may withhold payments due to You under this Agreement until such time that (i) We receive a Chargeback with respect to the Card Transaction or Sales Draft, in which case We shall retain the Funds; (ii) the period of time during which the Cardholder may dispute the Sales Draft and cause the exercise of a Chargeback has expired; and/or (iii) We determine that a Chargeback will not occur.
5.36. You shall close any open batches on at least a daily basis, except on days when Your place of business is closed. You may close batches more frequently if desired. You understand and acknowledge that Card Transactions are not transmitted to Us or to Our Member Bank until You close the batch containing those Card Transactions. Furthermore, You understand and acknowledge that open batches of Card Transactions that are not properly closed and transmitted to Us and Our Member Bank within forty-five (45) days shall be automatically purged and erased from the processing system, and will not be￼recoverable thereafter. You agree to hold Us and Our Member Bank harmless from and indemnify Us against any and all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, in accordance with Section 17 of this Agreement, that You sustain for said purged Card Transactions. You understand, acknowledge and agree that it is Your responsibility to close, balance and reconcile batches daily, and to detect discrepancies between Card Transactions processed by Us and Our Member Bank and Card Transactions that You have supposedly submitted. You understand, acknowledge and agree that minor discrepancies occur in the normal course of business and that Our Member Bank and Us will use their best efforts to correct discrepancies once notified by You. It is Your responsibility to monitor and reconcile Your Settlement Account in order to detect discrepancies in a timely manner. You understand, acknowledge and agree that neither We nor Our Member Bank have the ability to detect such discrepancies.
- FUNDS PAYMENT BY ONLINE BILL PAYMENTS
6.1. You hereby authorize Us for the purpose of the Services provided hereunder by way of Online Bill Payments which shall be conducted in accordance with the applicable CPA Rules. We shall accept the payment of Funds through the Website, and We shall remit all Remittances to You, in accordance with Section 10 of this Agreement.
6.2. You hereby understand and acknowledge that We administer Online Bill Payments by way of electronic data interchange transmission. You agree, understand and acknowledge that this transmission of Funds will carry with it other data and information, including without limitation Customer’s name and Customer Identifier Number, the Remittance Amount, the date upon which Remittance is due and may include the date the Remittance was received by Us. Without limiting the generality of the foregoing, You agree, understand and acknowledge that such Remittances and Remittance Information may be delivered using unsecured methods and that privacy and confidentiality cannot be ensured and further that any unprotected electronic communication over e-mail and/or the Internet is not confidential, subject to possible interception or loss, and subject to possible alteration. You further agree, understand and acknowledge that We will not be responsible for any unauthorized access to Remittance Amounts and Remittance Information or for any claims, losses, liabilities, damages, costs and expenses, suffered or incurred by You, Your financial institution, the Customers or other relevant Persons with respect thereto, except where there has been gross negligence on Our part, and You further agree to hold Us harmless from and indemnify Us against any and all such claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, in accordance with Section 17 of this Agreement.
6.3. You shall carefully review all Remittances and Remittance Information delivered by Us in accordance with this Agreement and, within five (5) Business Days of delivery thereof by Us, You shall notify Us in writing of any errors or omissions with respect￼thereto including, without limitation, any invalid, incorrect or duplicate payments or Remittances or Remittance Information which You are unable to otherwise verify, any detail irregularities relating to the Remittances or Remittance Information (including invalid or incorrect Customer Identifier Numbers), any problems reconciling the Remittances to deposits made to Your account. You agree to promptly return to Us, in full without deduction, any amounts that You receive in error. You agree and authorize Us to debit Your User Account (as defined in Section 13) for amounts owing as a result of any errors or omissions or, in the alternative, You agree and authorize Us to deduct such amounts from future Remittance(s) to You under this Agreement.
6.4. Subject to Section 6.3 above, You agree, represent and warrant that all Remittances and payment information delivered to You in accordance with this Agreement are correct and that Our records relating thereto shall be accepted as conclusive evidence of the information received by Us and the transactions between the Customer, You and Us.
6.5. Any electronic communication that We receive from You, in Your name or on Your behalf will be considered to be duly authorized and binding upon You, and We will be authorized to rely and act upon any such communication. In this connection: (i) We will be entitled to rely upon any signature appearing on a facsimile transmission that purports to be Your signature or the signature of Your representative; and (ii) You recognize that possession of a security device (i.e. a password for use on the Website) by any Person may result in that Person having access to Your User Account and being able to use the relevant means of electronic communication with Us. You understand and agree that You will comply with any security procedures which We may prescribe for electronic communication with Us, and You will take any other steps reasonably necessary to prevent unauthorized access to and use of means of electronic communication with Us.
6.6. You understand and agree that a copy of Our permanent record regarding any electronic communication from You will be admissible in any legal, administrative or other proceedings as both conclusive evidence and an accurate record of the contents of those electronic communications in the same manner as an original document in writing, and You hereby waive any right to object to the introduction of any such copy in evidence.
6.7. You understand, acknowledge and agree that You, and/or any Persons that You provide services to, and/or any of Your or their agents, shall not ask Customers to disclose or provide their login identification information and/or passwords or other private information used to access the banking services provided by their financial institutions online or by telephone. In the event that such information is requested from any Customer, We may without prior notice terminate this Agreement pursuant to Section 16.3.
- — USER ACCOUNT.
You are responsible for safeguarding Your User Account information and agree to hold Us harmless from and to indemnify Us against any and all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, resulting from improper use of Your User Account, in accordance with Section 17 of this Agreement.
- BACKGROUND AND CREDIT CHECK.
You authorize Us to obtain any and all information (as hereinafter defined) We may require to verify Your identity and determine Your credit responsibility from any and all sources, including without limitation You; service arrangements You make with or through Us; registries, credit reporting agencies and other financial institutions; references You provide to Us and other sources We deem appropriate. You agree that We may use such information to (i) investigate, verify and confirm Your background and identity; (ii) establish and maintain a banking relationship with You (iii) promote Our services to You (iv) maintain the accuracy and integrity of information held by a credit reporting agency and (v) as required or permitted by law. You consent to the disclosures We need to make about You to such sources, and You hereby authorize each such source to provide Us with such information, and You consent to the disclosure of such information with Our employees, agents and service providers, who are required to maintain its confidentiality, with other financial institutions, with Persons with whom We have or may have financial or business dealings and give credit, financial and other related information to credit reporting agencies who may share it with others. You further agree that We may share such information with third party bill payment providers having an agreement with Us to process such payments. Upon commencement of the Agreement and at any time thereafter for purposes of complying with the Rules, CPA Rules and Laws applicable to the Services. You shall provide Us with such information about Your business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries. In particular, You shall inform Us in writing of any changes to Your business model or the goods or services You sell or distribute if such change is or can reasonably expected to be relevant with regards to compliance with the Rules and/or the Laws. Pursuant to Section 17 of this Agreement, You agree to hold Us harmless from and indemnify Us against any and all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, arising out of Your failure to notify Us of any such changes that are relevant for compliance with the Rules and/or the Laws applicable to You or Us in accordance with Section 17 of this Agreement. For purposes of this Section 8, “Information” shall mean Your information, including information establishing Your identity and background; information related to transactions arising from Your relationship with and through Us and from other financial institutions; information You provide on any documents or as part of any other application for any product or service We provide; information obtained for the use of the Services; information for the￼provisions of products and services; information about financial behavior such as Your payment history and credit worthiness; and information obtained from others with Your consent.
- COMMUNICATION TOOLS.
- PAYMENT PROCESSING.
10.1. We will make each Recurring Payment on or before the Settlement Date.
10.2. Each Recurring Payment shall consist of all Funds collected during the period between the immediately preceding Settlement Date and the current Settlement Date, less (i) Chargebacks, (ii) amounts required to fund the Reserve Account pursuant to Section 13.3, (iii) any additional fines, fees and charges payable to Financial Institutions arising as a result of the transactions processed hereunder; (iv) any and all adjustments resulting inaccuracies uncovered by final checking and auditing of Sales Drafts in accordance with the Rules and/or the Laws; (v) any other situation constituting suspected fraud or a breach of this Agreement; and (vi) Service Charges due to Us from You under this Agreement.
10.3. You understand and agree that We may withhold Recurring Payments and any other type of payment to You without notice until the expiration of any Chargeback period for (i) mail order, telephone order, or Internet transactions on Cards issued by non- Canadian financial institutions; and (ii) if We determine, in our sole and unfettered discretion, that a transaction or batch of transactions poses a risk of loss. We are not responsible for any claims, losses, liabilities, damages, costs and expenses that You may incur, including but not limited to fees charged due to insufficient funds, delayed payment of Recurring Payments or any other types of payments.
￼10.4. You hereby instruct and authorize (i) that We claim on Our own behalf but for the account of You the Customer Funds from the relevant Financial Institutions, and (ii) that We receive, safeguard and hold the Customer Funds for Your benefit in a bank account overseen by Us, until such time as the Recurring Payments and any other types of payments are transmitted to You in accordance herewith.
10.5. You hereby instruct and authorize Us to provide the payment processing aspects of the Services to You through Our designated third-party service provider, Redfall Technologies Inc.
10.6. We are merely providing You with a conduit through which You may withdraw amounts from Customers, and We are not able to ensure the veracity of the information You provide regarding amounts to be collected from Customers. Accordingly, You acknowledge and agree that You are solely responsible for collecting from Customers and paying any and all taxes and other governmental charges, including, without limitation, sales tax, use tax and value added taxes, associated with the Funds and/or any other amounts You collect from Customers. You are solely responsible for any and all calculations of such taxes and other governmental charges associated with the Funds, and We are not responsible for any errors made in those calculations.
11.1. Subject to this Agreement, in order to process Your Refund of Customer Funds paid by way of direct withdrawal from the Customer’s Financial Institution pursuant to Section 4 or by Online Bill Payment pursuant to Section 6: (i) You shall notify Us of the specific amount of the Refund, (ii) We shall route the data for authorization, fulfillment and delivery to Customer(s), and (iii) We shall report to You the fulfillment, delivery and processing of the Refund. Refunds will be credited to the bank account of the relevant Customer(s), based on information You have provided to Us. You are solely responsible for incorrectness or incompleteness of the information You have provided to Us, and We are not responsible for any inability to process Refunds that arises from such cause.
11.2. For the purpose of the above Section 11.1 and subject to the terms hereof, You hereby instruct and authorize Us (i) to receive on Our own behalf but for Your account the specific amount of the Refund from You, and (ii) to receive, safeguard and hold the specific amount of the Refund for the benefit of Customer(s) and You in Our bank account, until such time as such Refund is transmitted to the Customer(s) in accordance herewith.
11.3. Subject to this Agreement, in order to process Your Refund of Funds paid by way of a Card (i) You shall notify Us of the specific amount of the Refund by issuing a credit memorandum in any approved form; (ii) We shall route the data for authorization, fulfillment and delivery to Customer(s), and (iii) We shall report to You the fulfillment,￼delivery and processing of the Refund. Refunds will be credited to the Card account of the relevant Customer(s), based on information You have provided to Us. You are solely responsible for incorrectness or incompleteness of the information You have provided to Us, and We are not responsible for any inability to process Refunds that arises from such cause. You will not submit a credit memorandum relating to any Sales Draft not originally submitted to Us, nor will You submit a credit memorandum that exceeds the amount of the original Sales Draft. You will, within the time period specified by Rules, provide a credit memorandum or credit statement for every Refund that was the subject of a Card Transaction.
- PAYMENT OBLIGATIONS OF THE PARTIES.
12.1. Service Charges. Service Charges and Refund transactions, if applicable, shall be deducted from Recurring Payments and any other types of payments owing to You in accordance with the Service Charges listed at https://www.AmericaPayments.com.com/pricing. You acknowledge and agree that We may make changes to the Service Charges listed at https://www.AmericaPayments.com.com/pricing at Our sole and unfettered discretion, in accordance with the procedures for amendment of the Agreement as set forth at Section 20.2 herein. Any outstanding amounts owing for Service Charges and Refund transactions, if applicable, shall be deducted from the next Recurring Payment or any other type of payment owing to You.
12.2. Other Charges. In addition to Service Charges and Refund amounts, if applicable, We shall be entitled to deduct, recoup and/or set-off from all Recurring Payments or any other types of payments the following amounts: (1) any claims, losses, liabilities, damages, costs and expenses We incur arising directly out of Your failure to comply with any term or condition of this Agreement, and/or (2) any claims, losses, liabilities, damages, costs and expenses We incur with respect to any disputed transaction as to which there is evidence of misconduct, fraud or tampering, by You or Your staff. If We are unable to set-off such amounts, You shall pay Us promptly upon receipt of Our invoice and supporting documentation (as determined in good faith by Us), or We will deduct said amount from Your next Recurring Payment or any other type of payment.
12.3. Online Accounting. You acknowledge that We will not be providing invoices for the charges set out in Sections 12.1 and 12.2. Your User Account shall instead provide You with access to an online accounting of all such charges, which shall serve as Your sole record of the amounts charged and deducted by Us from Your Recurring Payments or any other types of payments.
- — USERACCOUNT.
￼13.1. Establishment of User Account.
13.1.1. We will establish and maintain an electronic stored value account (the “User Account”) where We will electronically record credits representing all Funds received on Your behalf. As a stored value account, Your User Account will be credited as the result of deposits of Funds made by Customers through their Financial Institutions, which Funds shall be applied to paying Us the amounts described in Sections 12.1 and 12.2. An electronic stored value account is not a bank account, and accordingly Funds represented by credits in the User Account will not bear interest, nor are they eligible for deposit insurance under the Canada Deposit Insurance Corporation Act. Funds represented by credits in the User Account will be in Canadian currency. All Funds represented by credits in the User Account are subject to Your rights under this Agreement, and will be maintained by Us until We deem the risk associated with the transaction to be mitigated, in the exercise of Our sole and unfettered discretion at which time the Payment will be available to You.
13.1.2. The User Account shall be under Our sole control, and no financial institution shall have access to or hold Funds represented by the credits in the User Account.
13.2. User Account Deposits. You acknowledge and agree that Our bank account(s) may contain both Funds deposited by You and Funds deposited by other users of Our Services. As permitted by law and notwithstanding anything contained in this Agreement to the contrary, We may from time to time combine, consolidate, comingle or merge any or all of Your Funds with the Funds of other users of Our Services, and transfer or apply any and all such Funds standing to satisfy any debt or liability that You owe Us, including without limiting the generality of the foregoing (i) any Chargebacks, (ii) any additional fines, fees and charges payable to financial institutions arising as a result of the transactions processed hereunder, and (iii) any Service Charges due to Us under this Agreement.
13.3. Reserve Account.
13.3.1. You agree that should We determine, in the exercise of Our sole and unfettered discretion, that You present a heightened risk of Chargebacks, and/or if You terminate this Agreement, We may establish a reserve account (the “Reserve Account”) on Your behalf and seek to fund the Reserve Account in any amount to be determined by Us in the exercise of Our sole and unfettered discretion.
13.3.2. Upon Your receipt of notice from Us sent pursuant to Section 20.3 indicating that a Reserve Account is to be established, such Reserve Account shall be funded in the amount and in the manner set forth in the notice. In particular, and if We so￼request, the Reserve Account shall be funded through any of the following methods, or any combination thereof: (i) debits of Funds represented by credits in Your User Account; (ii) deductions or set-offs to any payments otherwise due from Us to You; (iii) Your delivery to Us of a letter of credit, issued or established by a financial institution acceptable to Us; and (iv) debits as authorized by You pursuant to the AmericaPayments.com: Pre- AuthorizedDebitAgreement. IntheeventaReserveAccountisestablishedbutYoufail to fund it in the manner requested by Us, You agree that We shall be entitled to fund it in the manner set forth in (i), (ii) and (iv), above. If Funds in Your Reserve Account are not sufficient to cover Chargebacks or other amounts due from You to Us, or if We have released Funds in Your Reserve Account, You agree to promptly pay such sums upon request. We may, to the extent permitted by law and without notice, from time to time, set-off, apply or transfer any and all sums standing to the credit of the Reserve Account in or towards the satisfaction of any indebtedness or liability You may incur under the Agreement.
13.3.3. In the alternative to Section 13.3.2, above, upon Your receipt of notice from Us sent pursuant to Section 20.3 asking that You fund a Reserve Account, You may decline to fund such a Reserve Account, in which case We shall have the option to declare the Agreement to be terminated pursuant to Section 16.3.
13.3.4. Upon termination of this Agreement for any reason whatsoever You hereby agree to immediately fund a Reserve Account pursuant to the AmericaPayments.com: Pre- Authorized Debit Agreement. You agree that You do not have the right to decline to fund this Reserve Account, which may be funded by the means described in (i), (ii) and (iv) of Section 13.3.2, above.
14.1. You control all Personal Information that You give to Us in relation to Your Customer(s) and any other individuals whose Personal Information You provide to Us. We are merely the data processor of such Personal Information.
14.2. You shall process all Personal Information in accordance with the Laws and the Rules. You shall obtain all necessary consents and authorizations from Your Customer(s) as required pursuant to the Laws and the Rules to enable Us to utilize Your Customer(s) Personal Information. You will retain the original consents and authorizations obtained from Your Customers for a minimum of three (3) years after they expire and will provide copies to Us promptly upon request.
14.3. We will use and retain the Personal Information that You provide to Us only to the extent and for as long as it is required to perform Our obligations under this Agreement.
￼14.4. We may disclose Personal Information to any third parties as We deem appropriate in order to provide the Services and to the extent required to fulfill Our obligations under this Agreement, including, without limiting the generality of the foregoing, Customer’s Financial Institutions, other financial institutions, payment processors, credit card companies, credit verification service providers and identity verification service providers.
14.6. In particular, without limiting the generality of the foregoing, You agree as follows:
14.6.1.You will not collect, use, disclose or retain Personal Information for any purpose other than those required to perform the Services;
14.6.2.You will only disclose Personal Information to Your employees or others on an objectively demonstrable need-to-know basis;
14.6.3.You will not disclose any Personal Information to any third party for any reason without the prior written consent of the individual to whom that Personal Information relates, which consent can be withdrawn at any time;
14.6.4.You will take security measures acceptable under any and all applicable Laws to segregate and keep separate and secure any Personal Information which You collect; and
14.6.5.You will return any Personal Information collected upon the end of Your relationship with the individual to whom the Personal Information relates and will not retain any copies thereof.
14.7. You will promptly take such corrective action or pay such penalty as is ordered by any Privacy Commissioner, tribunal, court of competent jurisdiction or other authorized governmental body in regard to Your collection, use, disclosure an/or retention of Personal Information and, if You fail to do so, We will have the authority to take remedial measures as necessary and to recover all costs from You associated with taking such￼measures, as well as being entitled to any other remedies available to Us at law or in equity.
- SERVICE LEVEL.
15.1. Financial institutions may, from time to time, encounter information system performance issues, including but not limited to scheduled maintenance, emergency maintenance, and maintenance by their vendors, and may additionally elect to service only certain account types or payment methods.
15.2. In performing the Services, We must rely on a multitude of network service providers which may experience down time due to many causes, including but not limited to problems with routers, modems, cables, hardware, software, domain name servers, and network attacks.
15.3. In light of Sections 15.1 and 15.2, We do not guarantee any minimum response or resolution times in the event of an interruption in Service delivery.
- TERM AND TERMINATION.
16.1. Term. This Agreement shall commence by You clicking “I Agree,” shall remain in effect for a period of one (1) year thereafter, and shall continue in force and effect for subsequent one (1) year periods unless terminated pursuant to this Agreement.
16.2. Termination. Either Party may terminate this Agreement upon thirty (30) days prior written notice.
16.3. Termination for Cause. Each of the Parties have the right to terminate this Agreement with immediate effect, if the other Party: (i) materially breaches this Agreement and such breach is not remedied within ten (10) days after having been given written notice of such breach by the other Party; (ii) becomes the subject of a voluntary or involuntary petition, proceeding or assignment related to insolvency, bankruptcy, receivership, liquidation or comparable petition, proceeding or assignment any other arrangement for the benefit of its creditors; (iii) You decline to fund a Reserve Account when so requested by Us pursuant to Section 13.3.3; or (iv) Your use of the Services results in, or could reasonably be expected to result in, a breach of any agreement or obligation binding upon Us or any other Person affected by the Services. Should either Party terminate this Agreement for cause pursuant to this Section 16.3, Your exclusive remedy against Us shall be to receive prompt delivery of any Recurring Payment or any other type of payment held by Us as of the effective termination date, less any amounts owing for Service Charges, Refund transactions and Chargebacks.
￼16.4. If for any reason We believe that Your business or service has become a Restricted Business, We may terminate this Agreement without prior notice pursuant to Section 16.3 and without opportunity to remedy the breach. If as a result of such notice or for any other reason We believe that the business or service is or has become a Reviewable Business, You understand and agree that We may in Our sole and unfettered discretion (i) require further due diligence be conducted; (ii) require that You provide additional periodic reporting to Us and be subject to reviews by Us; or (iii) terminate this Agreement without prior notice pursuant to Section 16.3 and with no opportunity afforded to You to remedy the breach. You understand, acknowledge and agree that You shall be responsible for any all costs related to any due diligence conducted by Us, including without limitation that required pursuant to this Section 16.4.
16.5. Post Termination Obligations.
16.5.1.Upon termination of the Agreement for any reason whatsoever, You shall promptly notify Your Customers that this Agreement was terminated and that consequently their PAD Agreement(s) and/or any other agreements with You are also terminated insofar as they designates Us and/or Redfall Technologies Inc. as Your processor of Funds, whether paid by way of direct withdrawal from financial institutions, Card Transactions or Online Bill Payments.
16.5.2.Upon termination of the Agreement for any reason whatsoever, You agree to immediately establish and/or fund a Reserve Account to be held by Us. This Reserve Account may be funded in the manner set forth in Section 13.3. This Reserve Account will be held by Us for ninety-one (91) days after the termination of the Agreement, unless We determine, in the exercise of Our sole and unfettered discretion, that You present a heightened risk of Chargebacks, in which case Your Reserve Account will be held by Us for three hundred and sixty-five (365) days after the termination of the Agreement.
16.5.3. You understand and acknowledge that MasterCard maintains a Terminated Merchant File (“MATCH System”) which contains the business name(s) and identification of principals of Persons terminated for one or more of the reasons specified in the Rules, including but not limited to fraud, counterfeit drafts, unauthorized transactions, excessive Chargebacks and/or retrieval requests, money laundering, or where a high security risk exists. You understand, acknowledge and agree that should We or Our Member Bank suspect any of the above, this Agreement will be terminated and a Reserve Account in accordance with Section 13.3. You understand, acknowledge and agree that We and/or Our Member Bank will be required to report Your business name(s) and identify Your principals to the MATCH System should this Agreement be terminated for reasons relating to the said reasons specified in the Rules. Furthermore, if You fail to fulfill Your obligations arising from this Agreement, Our Member Bank may submit a derogatory report on You and Your principals to a consumer and/or business credit￼reporting agency. You expressly agree and consent to such reporting by Us and/or Our Member Bank.
16.6. Survival. Your accrued obligations as of the effective date of termination shall survive the termination of this Agreement. The provisions of Sections 3.5, 3.6, 4.2, 4.3, 4.4, 5.2, 5.3, 6.4, 6.5, 7, 9, 10.5, 12.1, 12.2, 13, 14, 16, 17, 18, 19, 20.1, 20.3, 20.6, 20.7, 20.8, 20.9, 20.10, 20.11, 20.12 and 20.13 shall survive the termination of this Agreement.
You shall defend upon demand by Us, indemnify and hold harmless Us and Our Affiliates and Our/their respective directors, officers, employees, and agents against and from all claims, losses, liabilities, damages, costs and expenses, including lawyers’ and paralegals’ fees and costs, arising out of or in connection with or resulting from Our Services, including, but not limited to: (i) a violation of the terms and conditions of the use of the Services by You or anyone using Your computer or User Account, (ii) a claim that any use of the Services by You or someone using Your computer or User Account infringes any intellectual property right of any third party, or any right of personality or publicity, is libelous or defamatory, or otherwise results in injury or damage to any third party, (iii) any unauthorized use of the Services by You or someone using Your computer or User Account, (iv) any misrepresentation, including false or inaccurate information, or breach of representation or warranty made by You contained herein, (v) any breach of any covenant or agreement to be performed by You under these terms and conditions, (vi) Chargebacks resulting from disputes between You and a Customer including but not limited to (a) a Customer disputing the disposition of Customer Funds or (b) a Customer alleging unlawful collection of Customer Funds, bad debts, overdrafts or any other claim against Us as a result of Your actions; (vii) any action taken by Us in drawing Funds under or issuing any PAD Agreement as instructed or issued by You, including, without limitation, for any amounts that may be erroneously paid by Us pursuant to any PAD Agreement issued in accordance with Your instructions or resulting from the inaccuracy or incompleteness of any information furnished to Us by You or any officer, employee or agent of Yours; (viii) any disputed PAD Agreements including, without limitation, any interest claims, claims resulting from stop payments and any declaration filed by a Customer or other Person in accordance with the CPA Rules or any claim by a Customer or any other Person, alleging that one or more payments was not drawn in accordance with the Customer’s PAD Agreement, that the Customer’s PAD Agreement was revoked, that any pre-notification was not received by the Customer as required by the CPA Rules or the Customer’s PAD Agreement, that no contractual relationship ever existed between the Person making the claim and You or that no PAD Agreement was ever signed; (ix) a breach of the provisions or requirements of any and all applicable Laws relating to the collection, use, disclosure and/or retention of Personal Information; and (x) any and all claims of fraud, misrepresentation, including false or inaccurate information, breach of representation or warranty or any other violation of law or other governing authority or agreement made against Us by Your￼Customer. You agree to pay any and all costs, damages and expenses, including, but not limited to, lawyers’ and paralegals’ fees and costs awarded against or otherwise incurred by or paid in connection with or arising from any such claim, suit, action or proceeding attributable to any such claim. You acknowledge that this indemnification is enforceable by Us notwithstanding any assertion by You respecting the validity of the claims, liabilities, damages, costs and expenses. For purposes of this Section 17, “Affiliates” include entities owned or controlled, directly or indirectly, by Us, entities that directly or indirectly own or control Us, or entities under common control with Us.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. WE DO NOT WARRANT OR REPRESENT THAT THE WEBSITE, THE SOFTWARE, OUR MATERIALS, OR ANY OPINION, ADVICE OR STATEMENT DISPLAYED ON THE SITE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, OR INTER-OPERABILITY OF PRODUCTS OR SERVICES. WE DO NOT REPRESENT OR WARRANT THAT THE WEBSITE OR ITS SERVER(S) ARE FREE OF VIR– USES, TROJAN-HORSES, AD-WARE, KEYSTROKE-LOGGERS OR OTHER DISRUPTIVE OR HARMFUL COMPONENTS.
- LIMITATIONS OF DAMAGES.
YOUR — USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, ALLIANCE PARTNERS, SUPPLIERS, SHAREHOLDERS AND/OR ANY ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES HAVE ANY LIABILITY TO YOU, TO ANY — USER OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF INFORMATION, LOSS OF — USE, LOSS OF DATA, OR THE LIKE) THAT ARE RELATED TO THE — USE OF OUR SERVICES, AND THAT ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF WE ARE ADVISED OF OR FORESEES THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU REGARDING — USE OF THIS SITE. THESE SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATION ON DAMAGES. AMERICA PAYMENTS ADHERES TO ALL CASL REQUIREMENTS. THE LIMITATION ON DAMAGES SET FORTH ABOVE SHALL CONTINUE IN EFFECT NOTWITHSTANDING THE TERMINATION OF THIS AGREEMENT FOR ANY REASON WHATSOEVER.￼FOR GREATER CERTAINTY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL ANY OF THE PERSONS AND ENTITIES REFERRED TO IN THIS SECTION 19 BE RESPONSIBLE OR LIABLE FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, EXPENSES OR TAXES (INCLUDING LEGAL AND OTHER PROFESSIONAL FEES AND DISBURSEMENTS) OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH ANY OF THE FOLLOWING:
(i) communication facilities that are not under Our control that may affect the timeliness, completeness or accuracy of the transactions or that may prevent the retrieval or presentment of any information;
(ii) Your failure to fulfill any of Your obligations under this Agreement or to comply with any instructions We may provide to You from time to time in connection with the Services;
(iii) the transmission of viruses or other destructive or contaminating properties and any related damage to Your computer system;
(iv) the actions of, or failure to act by, any third party (and no third party will be considered to be acting as an agent for Us); except if said third party is acting under specific instructions from Us;
(v) inaccuracies in or inadequacies of any information furnished to Us in connection with the Services;
(vi) any failure to comply with any Laws, Rules, CPA Rules, or Our internal policies or procedures applicable to the Services including, without limitation, the processing of, or failure to process, any Funds, Recurring Payments, any other types of payments, Remittances or Remittance Information which do not comply with any such Laws, Rules, CPA Rules, or Our internal policies or procedures; or
(vii) any failure by Us to perform or fulfill any of Our obligations under this Agreement due to any cause beyond Our control.
20.1. Entire Agreement. This Agreement constitutes the full agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, correspondence or communications, whether verbal or written, relating to such subject matter.
20.2. Amendment. We reserve the right to amend or supplement this Agreement, and to alter prices, features, specifications, capabilities, functions, Agreement terms, general￼availability or other characteristics of the Services, at any time and from time to time. We shall provide You with notice as outlined in Section 20.3 fifteen (15) days before the amendment(s), supplement(s) and/or alteration(s) are in full force and effect (“Effective Date”) as shall be stated in the notice. Notwithstanding Section 16.2, You may cancel this Agreement if You do not accept Our amendment(s), supplement(s) and/or alteration(s) to this Agreement by providing Us with notice in writing as outlined in Section 20.3. Should the Effective Date arrive without Us having received any notice from You, You shall be deemed to have accepted Our amendment(s), supplement(s) and/ or alteration(s) to this Agreement.
20.3.1.Our Notice to You. Our Services are web-based and given the type of Service We offer, We expect that You will use Our Services at least once a month. As such We shall provide You notice by posting a message on the Dashboard of Your User Account (“Dashboard Notice”). In addition to Dashboard Notice, We may, at Our sole and unfettered discretion, also provide You with notice by sending You an e-mail to the e-mail account You maintain in Your User Account. E-mail is not a reliable means of communication because e- mail may be lost, delivered to Your spam box or rejected by Your Internet service provider, and as such, We shall not guarantee Your receipt of such e-mail and nothing in this Agreement shall be construed to provide such a guarantee. You maintain sole responsibility for logging into Your User Account at least once a month to check for a notice from Us.
20.3.2.You Providing Notice to Us. Notice provided to Us shall be in writing, reference Your User Account, shall be signed by You and e-mailed to: info@AmericaPayments.com.com.
20.4. Severability. If any provision of this Agreement shall be held unenforceable, such provision shall be enforced to the maximum extent permissible, and the remaining portions of this Agreement shall remain in effect.
20.5. Assignment. You may not assign this Agreement or any obligation or right under it to any third party. We may assign this Agreement or any right or obligation under this Agreement in conjunction with the sale of substantially all of Our assets, the sale of a controlling ownership interest in Us, a merger in which We are not the surviving entity, or a business restructuring or reorganization.
20.6. Security Interest. You hereby grant Us a security interest (the “Security Interest”) in Your property(ies) including the Reserve Account and in all proceeds thereof, accretions thereto and substitutions therefore (the “Collateral”). The Security Interest granted hereby secures payment and satisfaction of the obligations hereunder and the indebtedness and liability of You to Us pursuant to this Agreement. You agree to pay all costs, charges and expenses reasonably incurred by Us or any receiver appointed by Us, whether directly or for services rendered (including reasonable lawyers’, paralegals’ and auditors’ fees and costs and other legal expenses and receiver remuneration), in￼preparing or enforcing this Security Interest, taking custody of, preserving, repairing, processing, preparing for disposition and disposing of Collateral and in enforcing or collecting obligations and all such costs, charges and expenses.
20.7. Set-Off. We may apply in set-off against any amount owing to You by Us any amount owed by You to Us. As per Section 20.5, You may not assign any obligation or right under this Agreement to any third party.
20.8. Governing Law, Jurisdiction and Dispute Resolution. You agree that the laws of the Province of Ontario and the laws of Canada applicable therein shall govern the construction and interpretation of this Agreement and the rights of the Parties hereunder, without regard to conflict of laws principles and provision. The Parties consent to the exclusive jurisdiction and venue of the courts, tribunals, agencies and other dispute resolution organizations of Toronto, Ontario, Canada in all controversies, claims or disputes arising out of or relating to Your use of Our Services, and the Parties irrevocably waive any right to, and will not, oppose the bringing of any such proceedings in Toronto, Ontario Canada on any jurisdictional basis, including forum non conveniens. Any controversies, claims or disputes arising out of or relating to Your use of Our Services shall be resolved only by confidential arbitration before a single arbitrator pursuant to the Arbitration Act, 1991 (Ontario) to be held in the English language in Toronto, Ontario Canada. The arbitrator appointed pursuant to this Section shall have the authority to award costs of the hearing in addition to having the authority to resolve the controversy, claim or dispute, but under no circumstances is the arbitrator authorized or empowered to award special, punitive, or multiple damages against either Party. The decisions of the arbitrator shall be binding and conclusive upon all Parties and judgment upon any award rendered by the arbitrator may be entered by any court of competent jurisdiction.
20.9. Relationship. Nothing in this Agreement is to imply an agency, joint venture, partnership, or fiduciary relationship between the Parties. Neither Party is authorized to make any representations or commitments, or to enter into any contracts on behalf of the other Party.
20.10. Force Majeure. Neither Party shall be in default hereunder by any reason of any failure or delay in the performance of any obligation under this Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such Parties. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, embargoes and other governmental actions or regulations that would prohibit either Party from ordering or furnishing the services from performing any other aspects of the obligations hereunder.
20.11. Applicable Language. In the event of controversy between the Parties respecting the interpretation or application of the terms of this Agreement, the English language￼version of this Agreement shall be controlling. All proceedings related to this Agreement shall be conducted in the English language.
20.12. Applicable to the Province of Québec only. It is the express wish of the Parties that this Agreement and any related documents be drawn up and executed in English. Les Parties conviennent que la présente convention et tous les documents s’y rattachant soient rédigés et signés en anglais.
20.13. Waiver. No failure or delay on the part of either Party in the exercise of any right, power or privilege hereunder shall operate as a waiver of such right, power or privilege. No single or partial waiver of any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege in the future, or of any other right, power, or privilege. The waiver by either Party of a breach of any provision of this Agreement may be effected only by a writing signed by the waiving Party.
20.14.1.Capitalized terms defined in the singular include the plural and vice versa.
20.14.2.The words “include”, “includes”, and “including” mean include, includes and including “without limitation”.
20.14.3.Unless otherwise expressly provided herein, all references to a “Section” are to a Section of this Agreement.
20.14.4.Reference to and the definition of any document shall be deemed a reference to such document, including any schedules or exhibits thereto, as it may be amended, supplemented, revised, or modified.
20.14.5.The Section headings appearing in this Agreement are inserted for convenience only and in no way define, limit, construe, or describe the scope or extent of such Section or in any way affect such Section.
Updated: April. 4th, 2018.