WePay Terms of Service - Canada
Last update: March 12, 2014
This MERCHANT AGREEMENT (this "Agreement") is entered into by and between Home Trust Company ("Home Trust", "Us" or "Our"), WePay Payments Canada Inc., ("WePay") and the merchant identified on WePay's website (the "Merchant" or "You"). Under the terms of this Agreement, Home Trust and WePay will be the providers to Merchant of the services necessary to authorize, process, and settle all the Merchant's credit card transactions as set forth in the Agreement. Home Trust is a wholly owned subsidiary of Home Capital Group Inc. WePay Payments Canada Inc. is a wholly owned subsidiary of WePay, Inc., a Delaware corporation.
Pre-Authorized Debit Agreement ("PAD")
Merchant Agreement Terms and Conditions
Article A - Definitions
1. "Account and Transaction Information" means information that is necessary to process Card transactions correctly, including all information recorded electromechanically or otherwise on a Card, and more specifically includes: (i) any information used to authenticate a Card payment transaction such as, but not limited to, payment card number, payment card expiration date, Personal Identification Number (PIN), Card Verification Value (CVV), Card Verification Value2 (CVV2), passwords, pass phrases, digital certificates, and biometric authentication mechanisms, (ii) any information obtained during the processing of a Card payment transaction that otherwise identifies individual consumers and their purchases. The information includes consumer name, purchase description, purchase amount, and other details of the Card transaction. However, Account and Transaction Information does not include consumer name, purchase description, purchase amount and other details of the Card transaction, if such information is specifically provided by the cardholder independent of the Card transaction. 2. "Card" means any valid credit card or debit card issued by a member of a Card Organization and bearing its respective trade names, trademarks, and/or trade symbols, that Merchant is approved to accept under this Agreement. 3. "Card Not Present" or "CNP" transactions means any instance where a Card transaction is initiated by a cardholder where a physical Card is not presented to the Merchant, as in the case of mail orders ("MO"), telephone orders ("TO"), orders via the Internet ("IO") and pre-authorized orders ("PO"). 4. "Card Organization" means MasterCard, Visa, Interac Association, Maestro or any other Card organization, bank association or the issuer of any other Card of any association or network. 5. "Chargeback" means a Sales Record which is returned to Home Trust after it was settled in accordance with the Rules. 6. "Credit Record" means all documents, whether in hard copy or electronic form, used to evidence any refund or price adjustment given by Merchant to a cardholder for a previous sales transaction, which must conform to the Rules. The format for each Credit Record must be approved by Servicers. 7. "Effective Date" means the date this Agreement is executed by Home Trust. 8. "Failure" means the Services do not substantially perform in accordance with the User Documentation. 9. "Fees" means the fees set out on the WePay website which are the fees that you are obliged to pay for the Services, whether they relate to credit, debit or other transaction Services provided hereunder. 10. "Interchange" shall mean the amounts charged by Card Organizations (including without limitation interchange fees, dues and assessments, and debit network fees) in connection with the Merchant's transactions, the liability for which shall be the sole responsibility of the Merchant. 11. "Merchant Discount Rate" means that Fee calculated by applying a percentage to the dollar amount of the gross bankcard sales dollar volume. 12. "Permanent Fix" means a fully tested and quality controlled error correction to a Failure in the Services. 13. "POS Material" shall mean point of purchase marketing material provided by Home Trust. 14. "Relief" means an immediate solution or Permanent Fix to a Failure or a Workaround that avoids the Failure or reduces the impact of such Failure until such time that a Permanent Fix is available, but excludes recovery or restoration of a system database or similar task. 15. "Reserve Account" means those funds held at a bank for the purposes set forth in Section 86. 16. "Rules" means the written rules and regulations imposed or adopted by any Card Organization as the same may be amended from time to time all of which are incorporated herein by reference. The Rules are published on the web sites of the Card Organizations. 17. "Sales Record" means all documents, whether in hard copy or electronic form, used to evidence the sale of Merchant's goods and/or services through the use of Cards. The format for each Sales Record must be approved by Servicers. 18. "Servicers" include but are not limited to Home Trust and WePay.. 19. "Services" means access to, interface with and processing of Card authorization and settlement transactions of Merchant's customers. 20. "Services Support" includes, without limitation, the provision of: (i) relief to reported and documented errors in the Software; (ii) answers to questions regarding the use of the Services; (iii) assistance with the interface to WePay's server; (iv) coordination with Merchants' card processor and bank and communication to the card processor; (v) assistance with interfacing of the transaction data with legacy systems; (vi) testing of interface to WePay's server; and (vii) training on the use of the Services. 21. "Settlement Account" means a demand deposit account established at a Canadian financial institution and identified by the Merchant on the WePay website capable of receiving credits and debits from Home Trust for the limited purpose of debiting or crediting Merchant for Card transactions under this Agreement. 22. "Software" means the Services, User Documentation all copyrights, know-how, trade secrets, trademarks, service marks, trade names, patents, and other proprietary rights. 23. "Threatening Condition" means a Merchant's conduct or Merchant's products which violates applicable law or poses a threat to WePay's systems, equipment, processes, or intellectual property. 24. "Terminal" shall mean an automated banking machine, IDP terminal, or other device that, in conjunction with a Card, provides a cardholder access to the Services. 25. "Transaction" means a pre-auth, post-auth, void, sale, credit or Chargeback transaction that the Merchant attempts or successfully processes hereunder. 26. "Transaction Record" means either a Credit Record or a Sales Record, individually or collectively. 27. "User Documentation" means all materials which may include online or electronic documentation associated with the Services or on the WePay website, as amended from time to time. 28. "Workaround" means the temporary prevention of the reoccurrence of a Failure after implementation of a specific procedural or process change.
Article B - Services
29. Prior to activation of the Services, Home Trust shall establish an account in Merchant's name, which Merchant may access through the WePay website.. Merchant shall select a personal password and shall not disclose that password except to Home Trust and persons authorized by Merchant to access Merchant's account with Home Trust. Merchant shall be entirely liable for all activities conducted through Merchant's account or otherwise hereunder.. 30. WePay will provide Merchant with the Services in accordance with the User Documentation. Home Trust reserves the right to change any aspect of the Services, including, without limitation, Fees, terms and conditions of this Agreement and the characteristics of the Services, upon 90 days advance notice. Notice of change as provided in this section shall be deemed to have been given upon electronic posting on WePay's website at www.wepay.com for a period of not less than seven consecutive days. Merchant's continued use of the Services following notice of any such revision in the foregoing manner shall be conclusively deemed acceptance of all of such revisions. 31. WePay grants Merchant a non-exclusive, non-transferable, revocable, limited sub-license for a term beginning on the first day on which Merchant accesses the Services and ending when Merchant closes Merchant's WePay Account to use the Software. Merchant agrees that WePay and its licensors are the sole owners of all right, title and interest in and to the Software. Merchant shall not commit any act that might prejudice or adversely affect the validity of such ownership. Merchant may make a reasonable number of copies of User Documentation for use only by Merchant and its employees. 32. Merchant shall not reverse engineer, decompile, disassemble, translate, modify, decompile or disclose to any third party the Software nor shall it do so to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listing for the Software. Merchant shall have no right to use, market, distribute, sell, sub-license, deliver or otherwise transfer the Software or any part thereof either for or to any third party. Merchant shall not alter any trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Software or any part of any of them, or any of their supporting materials, documentation or packaging. Merchant will not challenge WePay's ownership of the Software or any part of either or do anything that would contest or impair any of WePay's rights therein and its components. Any future additions, modifications, versions, upgrades or updates of the Software released to Merchant shall be deemed to be part of the Software and shall benefit from the restrictions set out herein. 33. WePay shall be entitled to create, distribute and sub-license aggregate statistical and database compilations derived from Merchant data and Merchant's customers data, such as demographics, site traffic, viewing and navigation patterns, and transaction characteristics. 34. Merchant agrees that Home Trust and WePay may refer to Merchant by trade name and trademark and may describe Merchant's business in Home Trust and WePay's marketing materials, press releases, announcements and web site. Merchant grants Home Trust and WePay a limited license to use any Merchant trade names and trademarks solely in connection with the rights granted to Home Trust and WePay pursuant to this section. All goodwill associated with Merchant's trade name and trademarks will inure solely to Merchant. Merchant may display WePay slogans together with the WePay logo, or any other WePay trademark or service mark or logo, on Merchant's web site or marketing literature only after obtaining WePay's written approval. All goodwill associated with WePay's trade name, trademarks, slogans and logos will inure solely to WePay.
Article C - Merchant's Responsibilities
35. Merchant represents, warrants and covenants that: (i) its use of the Services and Merchant's web site shall comply with all applicable laws; (ii) its web pages shall not contain and Merchant shall not propagate, distribute, house, process, store or otherwise in any way handle material that is pornographic, obscene, lewd, lascivious, excessively violent, harassing, harmful, offensive, disparaging or defamatory, that invades any right of privacy or that infringes upon any intellectual property rights of any person; (iii) it shall not transmit or store any information, data or material in violation of any applicable international, federal, provincial, state or local regulation or law; (iv) it shall comply with all applicable Rules; (v) it will not use the Services for illegal purposes, or to interfere with or disrupt other network users, network services or network equipment; (vi) it shall comply with all applicable local, provincial, state and federal laws governing the transmission, storage, production, and/or retrieval of electronic information; and (vii) it will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information provided pursuant to this Agreement to anyone without first complying with all export control laws and regulations which may be imposed by the United States, Canada and any country or organization of nations within whose jurisdiction Merchant operates or does business. 36. The Merchant represents, warrants and guarantees that it shall not use the Services for any Transactions that:
- have been submitted in violation of any Rule;
- are submitted in breach of any provision of this Agreement;
- are submitted while Merchant is in breach of this Agreement;
- are submitted while the Merchant or any of its affiliates or directors, officers, employees, agents or representatives are listed on the Member Alert To Control High-Risk merchants list of MasterCard ("Match List") in Canada or the United States;
- are submitted for processing by Merchant after Merchant has previously sent the same Transaction to another acquiring bank that has declined to process the Transaction;
- are for the purchase of products or services that are illegal in the domicile of the Merchant, Home Trust or the customer or anywhere else in Canada or the United States;
- submitted prior to the term or following termination of this Agreement;
- are not approved or that are declined by Home Trust or its designee hereunder;
- are known or suspected to be fraudulent or unacceptable by Merchant regardless of whether Merchant has been given notice of such Transactions to Home Trust;
- do not have a face amount that is the same as the Chargeback amount;
- have failed address verification;
- do not relate to products or services sold in the ordinary course of the business of the Merchant;
- are for goods or services never advertised or promoted by Merchant in any way;
- have already been subject to a partial refund hereunder or otherwise;
- are for a customer who is a shareholder, director, officer, employee, agent or representative of Merchant or any of its affiliates;
- for the purposes of e-wallet, virtual cash or other payment aggregation services;
- are for a good or service that is being sold for a price other than the posted price;
- are for a good or service that has been returned to you; or
- are in connection with the following activities, items or services:
- Adult or adult-related services, including escort services, adult massage, or other adult-entertainment services
- Adult or adult-related content, including performers or "cam girls"
- Alimony, child support, or other court-ordered payments
- Bath salts and herbals
- Buyers clubs, discount clubs or membership clubs
- Collection agencies, or payment for a dishonored check or for an item deemed uncollectible by another merchant
- Computer repair or maintenance services, such as antivirus programs
- Cruise lines
- Credit counseling or credit repair agencies
- Credit protection or identity theft protection services
- Counterfeit or possibly counterfeit goods, such as designer handbags, clothing and accessories, and consumer electronics
- Debt elimination, consolidation, or reduction services
- Digital goods including digital currency
- Direct marketing of subscription offers
- Distressed Property Sales and Marketing
- Drugs, alcohol, or drug paraphernalia, or items that may represent them
- Financial services, such as cash advances, bill payment, loans, prepaid cards, wire transfers, or sales of money orders or foreign currency
- Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races
- Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races
- Infomercial merchants
- Internet pharmacies or pharmacy referral sites
- Inbound or outbound telemarketing businesses including lead generation businesses
- Licensed or franchised goods or services, such as Apple products
- Legal fees including bankruptcy attorneys
- Live animals
- Magic, enchantment, sorcery or other forms of yet-to-be-explained science
- Medical equipment
- Multi-level marketing businesses, pyramid or Ponzi schemes
- Obscene or pornographic items
- Prepaid phone cards or phone services
- Real estate or motor vehicles
- Rebate or upsell programs
- Scrip-dispensing terminal
- Timeshare resales and related marketing
- Tobacco, cigarettes, or e-cigarettes
- Unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same
- Violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same
- Weapons, including replicas and collectible items, or ammunition
- Weight loss programs
37. Merchant shall not surcharge for any Transactions, nor shall it post any signs indicating any minimum value for Transactions nor shall it require any such minimum of its customers. 38. Merchant shall not mislead any cardholder into believing that their transaction is being processed on one card when it is really being processed on another. 39. Home Trust, Visa, MasterCard and the issuing banks of the Card Organizations all have the right to chargeback any credit or debit transaction processed through the Services to the extent that such transaction is presented or processed in violation of the applicable Card Organization rules, this Agreement or where the cardholder disputes the transaction pursuant to the applicable Card Organization rules. 40. All chip Card transactions must be authorized online. In the event that such authorization is not completed for whatever reason, the Merchant must require the cardholder to make payment by means other than the chip Card. 41. Merchant represents and warrants that it is a single business entity and is not comprised of more than one business unit which: (i) must provide separate financial reports at Merchant's bank; (ii) are located at different geographical locations; (iii) are listed as separate business units in either Merchant's financial statements or that of Merchant's parent organization; or (iv) carry separate financial accountability within the Merchant's organization or by Merchant's bank. 42. Merchant shall be solely responsible for all telephone, computer, hardware and software equipment and services necessary to access and utilize the Services. Merchant shall bear all collection risk (including, without limitation, card fraud and any other type of credit fraud or Merchant disputes including chargebacks) with respect to sales of its products or services and shall bear all responsibility and liability for the proper payment of all taxes which may be levied or assessed (including, without limitation, sales taxes) in respect of sales of its products or services. Merchant is responsible for insuring that the cardholder understands that the Merchant is responsible for the transaction, including goods and services related to customer service, dispute resolution and the performance of the terms and conditions of the transaction. Merchant must inform cardholder prominently and unequivocally of the identity of the Merchant at all points of interaction. 43. Merchant shall not directly or indirectly (and shall not knowingly cause or permit anyone to) reproduce or prepare any derivative work based upon the Services or any other proprietary information belonging to Home Trust or WePay. Merchant agrees to secure and protect tangible forms of the Software so as to maintain the rights of Home Trust, WePay and its licensors. 44. Merchant is responsible for its employee's actions while in Merchant's employ. 45. Merchant agrees that the User Documentation shall be disclosed only to its employees as are necessary to facilitate the Services, shall not be disclosed to third parties without the written consent of Home Trust and WePay and shall be kept in a safe and secure location.
46. Merchant is required to follow and comply with the Rules. The Card Organizations may impose different compliance requirements on different types and levels of Merchants. The Card Organizations may impose restrictions, fines, or prohibit Merchant from participating in Card Organization programs if it is determined Merchant is non-compliant with such programs. Merchant understands that it must be in compliance with data security regulations for its type or level of Merchant as defined by the Card Organizations security procedures as well as comply with general security procedures. Servicers will endeavour to provide Merchant with amended operating procedures outlining the various Card Organization requirements with regard to data security, and other matters, pursuant to the terms of this Agreement, but failure to do so shall in no way diminish the obligation of the Merchant to comply with such requirements nor shall it be a breach of this Agreement. Merchant shall maintain compliance with all Card Organization, and PCI Data Security Standards, LLC procedures and regulations, and to pay any and all fines levied by the applicable Card Organization for its non-compliance. In addition, Home Trust may provide you with its own Operating Guidelines which shall be binding upon you upon receipt thereof. 47. Servicers may in their sole discretion, suspend or terminate card processing services under the Agreement for any actual or anticipated data security compromise. Notwithstanding anything in this Agreement to the contrary, Merchant agrees to indemnify and hold Servicers harmless from and against all losses, liabilities, damages and expenses (including lawyers' fees and collection costs) brought by a third party resulting from Merchant's failure to comply with the Rules, and in particular Card Organization data security rules.
48. In respect of all debit Transactions eligible for the Services, you shall comply with all Rules, guidelines and instructions of Servicers, Visa, and MasterCard such as they may be from time to time. You shall never use the debit card except for the sole purpose of completing a bona fine debit Transaction. You assume full and exclusive responsibility for any use of the passwords or access codes to the Software. You undertake to change the passwords in the Software from time to time. You agree that any of Servicers or their respective agents may perform a security audit of your premises and systems in order to verify your compliance with the terms hereof.
Visa Debit Transactions
(a) Without limitation, in respect of all Visa debit Card transactions in respect of which the Services are used: If you elect to accept Visa credit Cards you are not required to accept Visa debit Cards issued by Canadian issuers;
(b) if you accept Visa credit Cards you must also accept Visa debit Cards issued by issuers other than Canadian issuers;
(c) With the exception of your right to elect to not accept Visa debit Cards issued by Canadian issuers, if you accept Visa credit Cards you must accept all forms thereof and you must permit for customers to elect which form of payment they may wish to use;
(d) If a Fees Card holder requests for a transaction to be processed on the Visa Card, you must honour those instructions;
(e) Any transaction on a Visa debit Card by a Merchant that has elected to not except Visa debit Cards or where the cardholder has elected to not carry out a Visa debit Card transaction, shall be deemed an improper use of the Services and shall not be a transaction for the purposes of this Agreement; and
(f) Foreign Visa debit Card transactions are handled in the same manner as domestic Visa debit Card transactions.
Without limitation, in respect of all Maestro Card transactions in respect of which the Services are used:
(g) the Maestro marks must be displayed at the Terminal location in the same size and prominence as the other Card Organization brands displayed and subject to the Card Organization rules;
(h) where the Maestro marks are displayed, Cards must be accepted without discrimination as any other forms of payment. You are entitled to opt out of the Maestro program without incurring any administrative fee or cancellation fee hereunder;
(i) all contactless Maestro Card transactions require the use of a PIN;
(j) unless expressly permitted by applicable law and Home Trust in writing, the Merchant may not oblige cardholders to pay a surcharge or any part of the Fees in relation to a transaction will stop the Merchant may, however, provide a discount to the cardholder for cash payments;
(k) the Merchant may charge a fee, such as commission, postage, expedite service or convenience fees, if the Fees imposed on call like transactions regardless of the form of payment used;
(l) a Maestro Card unintentionally left at a Merchant location can be return to the cardholder by the Merchant only up until the close of the following business day of the Merchant. The Merchant may only return such Card to the cardholder if they provide positive identification. If the cardholder does not claim the Maestro Card within such delay, the Merchant should seek instructions from Home Trust what to do with the Card.
Merchant Operating Guide; Rules
49. You agree to comply with all requirements of this Agreement and the Operating Guide. You also agree to comply with the Rules, including but not limited to the information available on the following websites: http://www.mastercard.com/ca/merchant/en/getstarted/rules.html
http://corporate.visa.com/pd/rules/main.jsp Your receipt or non-receipt of the operating guidelines of any of Visa, MasterCard, or any other Card Organization whose cards you wish to accept will not change your continuing obligation to honour them.50. The Card Organizations have established guidelines, merchant monitoring programs and reports to track merchant activity such as, but not limited to excessive credits and Chargebacks, and increased deposit activity. In the event you exceed the guidelines or submit suspicious transactions as identified by a Card Organization or any related program or reports, you may be subject to: (i) operating procedure requirement modifications; (ii) incremental Chargebacks and/or fees; (iii) settlement delay or withholding; (iv) termination of this Agreement; and/or (v) audit and imposition of fines.
51. Merchant's use of the Card Organization trademarks must comply with all applicable requirements of the Rules. Merchant's use or display of the trademarks will terminate upon termination of this Agreement or upon notification by the Card Organizations that Merchant must discontinue such use or display. Nothing in this Agreement shall grant any right to Merchant in any name, mark or trademark of any Card Organization or Home Trust without the express prior written consent of Home Trust.
Article D - Services Support
52. WePay will make commercially reasonable efforts to provide Services Support on a timely basis. 53. Prior to submitting a support request to WePay, Merchant will first troubleshoot its system to determine if issues may be arising from other software or hardware of the Merchant, its Internet service provider, the Internet or other variables outside the control and domain of WePay. Merchant may be charged by WePay, at WePay's discretion, for products or technical support which are not covered under the Services Support policies and procedures of WePay then in effect. WePay will advise Merchant of the possibility of charges for any products or technical support requested prior to proceeding.
Article E - Fees
54. Merchant promises to pay Home Trust and/or WePay, its successors and assigns fees for the Services set forth on the WePay website, and any other fees deemed applicable by Home Trust and/or WePay, including but not limited to Fees. Merchant waives any right to off-set against any of the Fees. There shall be added to all Fees an amount equal to all taxes, however designated, levied or based, including, without limitation, sales and use taxes imposed in connection with the Services. Merchant agrees that said Fees shall be paid from, and withdrawn by Home Trust and/or WePay from, the account designated by the Merchant on the WePay website. Failing which, Merchant agrees that Home Trust may withdraw said payment from the Account. 55. Under no circumstances shall Home Trust be liable to Merchant under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess of the aggregate Fees paid by Merchant under this Agreement during the 12 month period prior to the date the cause of action arose. The exclusions and limitations of this section will not apply in jurisdictions that prohibit the exclusion or limitation of incidental or consequential damages or limitations on the duration of an implied warranty. 56. Settlement Account. Merchant shall maintain a Settlement Account at Home Trust or a Canadian institution acceptable to Home Trust with a balance of available funds sufficient to accommodate Merchant's obligations under this Agreement. Home Trust may debit the Settlement Account daily for the Fees. Merchant agrees to work with Home Trust to help resolve any problems in crediting/debiting the Settlement Account. Merchant agrees to be bound by the terms of the operating rules of the Canadian Payments Association, as may be amended from time to time. Merchant authorizes Home Trust to access information from the Settlement Account and to initiate credit and/or debit entries and adjustments to the Settlement Account, by bank wire or Electronic Funds Transfer (EFT) and/or through direct instructions to the financial institution where the Settlement Account is held, for amounts due under this Agreement as well as for any credit entries in error. Merchant authorizes the financial institution where the Settlement Account is maintained to effect all such debits and credits to the Settlement Account. This authorization is without respect to the source of any funds in the Settlement Account, is irrevocable, and is coupled with a security interest, and shall remain in full force and effect until Home Trust has given written notice to the financial institution where the Settlement Account is maintained that all monies due under this Agreement have been fully satisfied. All settlements for MasterCard and Visa Card transactions shall be net of credits/refunds. Applicable discount fees, transaction fees, Chargebacks, or any other amounts due from Merchant will be debited automatically by EFT from the Settlement Account when due. All credits to the Settlement Account or other payments to Merchant are provisional and are subject to, among other things, final audit by Home Trust, Chargebacks, fees, assessments, and fines imposed by the Card Organizations. Merchant agrees that Home Trust may debit or credit the Settlement Account for any deficiencies, overages, fees, fines, charges, and pending Chargebacks, or may deduct such amounts from settlement funds due to Merchant. Alternatively, Servicers may elect to invoice Merchant for any such amounts, which amounts shall be payable within 30 calendar days of the date of such invoice or on such earlier date as may be specified by Servicers.
57. Servicers may increase and/or implement new fees for Services for any other reason by notifying you 90 days prior to the Effective date of any such change.
Indemnification, Limitation on Liability and Exclusion of Special Damages
58. Home Trust and WePay's cumulative liability for all losses, claims, suits controversies, breaches or damages for any cause whatsoever (including but not limited to, those arising out of or related to this Agreement and the Operating Guide) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $1,000; or (ii) the amount of Fees received by us pursuant to this Agreement for Services performed in the preceding 12 months, whichever is less. Under no circumstances shall Servicers be liable to Merchant or any third party for any liquidated, indirect, consequential, special, speculative, lost profits, exemplary or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of this Agreement even if the party at fault has been advised of the possibility of such damages. 59. Home Trust's liability for any delay in funding transactions to you for any reason will be limited to interest computed from the date that you should have received funding pursuant to this Agreement. 60. You agree to indemnify and hold us harmless from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions, fines or penalties (including legal fees on a solicitor and client basis) claimed by a third party arising from: (i) any breach of any warranty, covenant or agreement or any misrepresentation by you under this Agreement; (ii) you or your employees' or agents' failure to comply with the terms of this Agreement or any requirements of which you are advised from time to time including requirements of the Rules, Card Organizations or of Card Issuers; (iii) you or your employees' or agents' fraud, negligence or wilful misconduct in connection with Card transactions or otherwise arising from your provision of goods and services to cardholders; (iv) Card transactions or the settlement of funds from transactions or your use of our Service; any third party indemnifications we are obligated to make as a result of your actions (including indemnification of any Card Organization or Issuer); or (v) any fine imposed by any Card Organization on account of any of your acts or omissions. Your indemnification obligations shall include an obligation to assume all legal, audit and investigation fees incurred by the Servicers in relation to this Agreement on account of your acts or omissions or those of your affiliates. This clause will survive termination of this Agreement. 61. Subject to the limitation of liability set out above, we agree to indemnify and hold you harmless from and against all losses, liabilities, damages and expenses claimed by a third party resulting from our or our employees' gross negligence or wilful misconduct in connection with this Agreement. 62. You agree that you will have no recourse against us, our agents, and our service providers for any losses, claims or damages, including any indirect, special, incidental or consequential damages or lost profits even if informed of the possibility of such damages (however arising, including negligence), arising out of or related to Card transactions, or settlement of funds. This clause will survive termination of this Agreement. 63. Due to the nature of EFT and the electronic networks utilized for the movement of funds, and the fact that not all banks belong to the EFT network, payment to Merchant may be delayed. Home Trust's standard funding schedule is 72 hours or three (3) business days after batch close of the Merchant's Transaction terminal with alternative funding schedules defined at WePay's discretion based on a number of credit and risk considerations. Servicers will not be liable for any delays in transfer of settlement funds or errors in debit and credit entries caused by third parties, to any Card Organization or Merchant's financial institution. Servicers reserve the right to divert and hold all funds when Servicers are investigating any breach of warranty, covenant, representation, or agreement by Merchant or has reasonable cause to believe that Merchant may have violated a provision of this Agreement, the Operating Guide or the Rules or is engaged in illegal or fraudulent activity. While transfer of settlement funds is normally conducted by EFT, Home Trust may be required to effect the transfers by bank wire transfer for reasons beyond the control of Servicers, in which event Merchant will be assessed a wire transfer fee for each such transfer.
Article F - Term and Termination
64. This Agreement shall take effect on the Effective Date. Servicers may terminate this Agreement upon giving Merchant 30 days written notice. Servicers may terminate this Agreement immediately and without notice if Merchant creates or is likely to create any harm or loss of goodwill to Servicers or the Card Organizations. Upon any decrease in the Fees hereof, the Effective Date shall be deemed to be automatically amended to the date on which such decrease takes effect. 65. Servicers reserve the right to terminate any account of Merchant on which no activity has occurred for a period of not less than 6 months. Servicers reserve the right to remove any data stored in any Merchant directory upon termination of Merchant account. 66. In the event that Servicers reasonably believes that a Threatening Condition exists, WePay will provide Merchant with notice of the Threatening Condition, upon receipt of which Merchant agrees to exercise its best efforts to cure the Threatening Condition. If in WePay's sole discretion, the Threatening Condition poses an imminent or actual threat to WePay's systems, equipment, processes, or intellectual property, Merchant agrees to suspend any and all activity on its account until such threat is cured. Notwithstanding the foregoing, Servicers may thereafter deactivate Merchant's account without notice until the threat is cured if Merchant does not itself suspend activity. 67. This Agreement may be terminated by either party effective immediately and without notice in the event that: (i) the other party commits a material breach of this Agreement which remains uncured 30 days following written notice thereof; (ii) the other party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (iii) a receiver, trustee or similar officer is appointed for the business or property of such party; (iv) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and is not stayed, enjoined or discharged within 60 days; or (v) the other party adopts a resolution for discontinuance of its business or for its dissolution. 68. Electronic Agreement, This section and sections 69 and 70 shall apply in the event Merchant executes this Agreement online and clicks the "Submit," "Accept," or equivalent indicator. 69. Each party agrees that this Agreement may be effected by electronic means and understands that all electronic documents related hereto are legally binding in the same manner as are written documents when the information contained therein is sent or delivered in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not "capable of retention by the recipient" if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record. 70. Merchant understands that a contract may be executed by the interaction of an individual, acting on his or her own behalf or for another person, with an electronic agent (such as this website and the computer program or programs operating in conjunction with it), so long as the individual knows or has reason to know his or her actions will cause the electronic agent to complete the transaction or performance. In the event, however, that Merchant has unintentionally submitted an online application because of an error made by Merchant in dealing with this website, and Merchant promptly notifies of such error and informs that Merchant does not intend to be bound and agrees that the online application erroneously submitted will be deemed null and void provided that Merchant has not used any of the Services. It is understood and agreed that any use by Merchant of any of the Services shall bind Merchant to this Agreement, whether or not Merchant claims the online application was submitted in error.
Article G - General
71. The parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. The parties agree that, except as specifically provided in this Agreement, neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release or waive any right, title or interest of such other party. 72. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada and each party submits to the exclusive jurisdiction of the courts of the Province of Ontario. 73. This Agreement may not be transferred or assigned by Merchant and any attempts by Merchant to assign any of its rights or delegate any of its duties hereunder shall be null and void. This Agreement shall inure to the benefit of and bind Home Trust, WePay and Merchant and their respective successors and permitted assigns. 74. Merchant warrants and represents that its signatory has been and is on the date of this Agreement duly authorized by all necessary corporate action to execute this Agreement. 75. Servicers shall not be responsible for any failure to perform their obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of the Servicers. 76. This Agreement, including the Operating Guide and any schedules attached hereto, constitutes and contains the entire agreement between the parties with respect to the subject matter and supersedes any prior oral or written agreements. Each party agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation. 77. Merchant may not modify or amend this Agreement, including by custom, usage of trade or course of dealing, except by an instrument in writing signed by duly authorized officers of both of the parties. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. 78. The provisions of this Agreement relating to confidentiality, reverse engineering and indemnification shall survive any termination or expiration of this Agreement. 79. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 80. Each provision of this Agreement shall be fairly interpreted and construed in accordance with its provisions and without any strict interpretation or construction in favour of or against either party. This Agreement may be signed in multiple counter-parts, and each such duly signed counterpart shall be deemed to be an original copy of this Agreement provided; however, that each party shall receive a counterpart fully signed by the other party. 81. Merchant further agrees and consents that any information collected by the Servicers shall be used in accordance with WePay's privacy statement available at www.wepay.com/legal/privacy-policy. 82. Account and Transaction Information Security Policies. Merchant shall collect Account and Transaction Information by consent of the cardholder for the sole purpose of completing the Card transaction or as specifically required by law. The Merchant shall not provide this information to any other party except for the purpose of assisting in the completion of the Card transaction. Merchant shall be solely responsible for any Account and Transaction Information that it retains and any retained information shall be protected in accordance with the respective Card Organization standards. Account and Transaction Information security policies define the information that must be secure and the minimum level of security that must be provided. Merchant shall cooperate with Visa, MasterCard, PCI Security Standards Council, LLC, and other Card Organizations. Merchant shall notify Servicers immediately if there is a data breach or account compromise. 83. Protection of Cardholder Information. The sale or disclosure of cardholder data is strictly prohibited by the Rules, as well as federal, provincial, state and local laws. Unless Merchant obtains written consents from Servicers, each applicable Card Organization, Home Trust, and cardholder, Merchant must not use, disclose, sell, or otherwise disseminate any cardholder data to any third parties except as necessary to use the Services, resolve Chargebacks, complete retrieval requests, or as required by subpoena or order by a court or other governmental agency. Merchant shall use proper controls to restrict access to all records containing Card data. Merchant may not retain or store magnetic stripe data after a transaction has been authorized. If Merchant stores any electronically captured signatures of a cardholder, Merchant may not reproduce such signature except upon the specific request of Home Trust or WePay, Merchant shall store all media containing cardholder data (including Sales Records, Credit Records, rental agreements, etc.) in an area limited to selected personnel, and, prior to discarding any such media destroy the media in a manner that renders the data unreadable and unrecoverable. In addition to the foregoing, Merchant shall comply with the applicable requirements of the MasterCard cardholder Information Security Program and the Visa Account Information Security Program. 84. Provision of Business Records. At all times during the term of this Agreement, upon Home Trust's request, Merchant shall provide all documentation evidencing Merchant's financial condition as well as other documentation deemed reasonably necessary to verify the information contained in the Merchant's WePay account. All financial statements of Merchant that are provided shall be prepared in accordance with generally accepted accounting principles. Merchant agrees to provide such documentation within 30 days of the request. In the event Merchant fails to provide the requested documentation, Home Trust shall be entitled to terminate this Agreement. 85. Setoff Rights. Home Trust shall have the right, at any time and without notice, to charge back to Merchant, and deduct, withdraw or set-off from payments due Merchant from Card transactions, or from the Settlement Account, the Reserve Account, any other account or amounts due Merchant the full amount of any Card transactions designated by Home Trust or a Card Organization or which fails to meet the requirements of this Agreement. 86. Reserve Account. At any time and for any reason (including, without limitation, notice of termination or actual termination of this Agreement, change in transaction volume, change in business model, unauthorized transactions, cessation of business, insolvency, excessive Chargebacks, suspected or actual fraud, or competing claims regarding funds generated via Merchant's processing activities), Home Trust may require Merchant to transfer funds to Servicers, which funds shall serve as collateral to protect Servicers against actual or contingent liabilities or losses that might be incurred by Servicers in the event Merchant is unable or fails to pay Chargebacks, adjustments, fees, and other charges and obligations due or anticipated to become due to Servicers hereunder. At any time, Servicers shall be entitled to require Merchant to increase funds in the Reserve Account, in the event of which Home Trust shall notify Merchant in writing of the increased funding requirement, except in the event of notice of termination or actual termination of this Agreement, unauthorized transactions, cessation of business, suspected or actual breach or default, or cessation of processing under this Agreement. If notice is required, Servicers may notify Merchant either before or after the establishment or increased funding requirement of the Reserve Account, but not later than 5 business days after the establishment or increased funding requirement of the Reserve Account. Home Trust shall specify in its notice, at Home Trust's sole discretion, the amounts to be funded and the timing for establishment or increased funding of such Reserve Account; provided, however, that Home Trust may require that such Reserve Account be funded immediately (including, without limitation, in instances of unauthorized transactions, suspected or actual fraud or termination for cause). Such funds will be deposited into a non-interest bearing account maintained at Home Trust. Servicers may, without notice, fund the Reserve Account (whether initially or due to increased funding requirements) with deductions from payments due Merchant from Card transactions or by a charge against the Settlement Account or any other available account of Merchant. Servicers will hold or be entitled to hold the funds in the Reserve Account until such time as Servicers are satisfied that Merchant has no further obligations to Servicers under this Agreement. Merchant's failure to fund the Reserve Account (whether initially or due to increased funding requirements) will result in immediate termination of this Agreement. 87. Security Interest. MERCHANT GRANTS SERVICERS A LIEN AND SECURITY INTEREST IN THE SETTLEMENT ACCOUNT, THE RESERVE ACCOUNT, ALL CARD TRANSACTIONS (INCLUDING FUTURE CARD TRANSACTIONS), ANY RIGHTS TO RECEIVE CREDITS OR PAYMENTS UNDER THIS AGREEMENT, AND ALL DEPOSITS AND OTHER PROPERTY OF MERCHANT THAT SERVICERS OR ITS AFFILIATES POSSESS OR MAINTAIN (INCLUDING ALL PROCEEDS OF THE FOREGOING), AND MERCHANT SHALL EXECUTE, DELIVER AND PAY THE FEES FOR ANY DOCUMENTS SERVICERS REQUEST TO CREATE, PERFECT, MAINTAIN AND ENFORCE THIS SECURITY INTEREST. TO THE EXTENT PERMITTED BY LAW, MERCHANT IRREVOCABLY AUTHORIZES SERVICERS TO EXECUTE ANY FINANCING STATEMENTS OR OTHER DOCUMENTS NECESSARY RELATED TO THIS SECURITY INTEREST. Servicers shall also be the beneficiary of any insurance, surety bond or similar indemnity or guaranty (whether voluntary or required by law) of Merchant or for the benefit of Merchant, and Merchant assigns to Servicers the rights to make claims or receive the benefits thereof with respect to Card transactions hereunder. Merchant represents and warrants that no other person or entity has a security interest in the property described herein and that this security interest is a first lien security interest and secures Merchant's obligations to Servicers under this Agreement. Servicers shall have all rights of a secured party and Merchant must obtain the prior written consent of Servicers before granting any subsequent security interest in the property described herein. Merchant agrees that it is Merchant's intent that these accounts and secured property shall to the extent allowed by applicable law not be subject to any preference, claim, or stay by reason of any bankruptcy or insolvency law. Merchant agrees to act consistently with the understanding that said accounts and secured property under this Agreement are free of all such preferences, claims or stays by reason of and as allowed by any such law. 88. Movable Hypothecs Without Delivery on a Universality of Merchant's Property. As security for the performance of all the covenants set forth herein and all of the obligations of the Merchant to the Home Trust under this Agreement, the Merchant hereby grants to the Home Trust and/or its assignees or designees, if any, a movable hypothec in the amount of $100,000 on a universality of all its present and future movable property, both corporeal and incorporeal, now owned or hereinafter acquired by the Merchant and located, including without limitation the following property of the Merchant (collectively, the "Collateral"): (a) all present and future machinery and equipment of the Merchant, including, without limitation, all tools, implements, furniture and vehicles; (b) all present and future inventory of the Merchant including, without limitation, all property in stock, movable property in reserve, raw materials, goods in process, finished products, animals, wares, as well as any other property held for sale, lease or processing in the manufacture or transformation of property intended for sale, for lease, or for use in providing a service by the Merchant in the ordinary course of operation of its enterprise; (c) all present and future claims of the Merchant including, without limitation, the Reserve Account and Bank Account, all customer accounts, accounts receivable, rights of action, demands, judgments, contract rights, amounts on deposit, proceeds of sale, assignment or lease of any property, rights or titles, and any indemnities payable under any contract of insurance, the whole which are now due or which may become due to the Merchant, together with all judgments and all other rights, benefits, guarantees and securities for the said claims which are now or may hereafter exist in favour of the Merchant, and together with all books and accounts, titles, letters, invoices, papers and documents in any way evidencing or relating to all or any of the claims; (d) all present and future securities, instruments, bills of lading, warehouse receipts, documents or other evidences of title of the Merchant and all other securities issued or received in substitution, renewal, addition or replacement of securities, or issued or received on the purchase, redemption, conversion, cancellation or other transformation of securities or issued or received by way of dividend or otherwise to holders of securities; (e) all present and future goodwill, trademarks, patents and patent rights, copyrights, inventions, other intangible property, monies, agreements and rights under agreements of the Merchant, and all its present and future undertaking; (f) all titles, documents, records, receipts, invoices and accounts evidencing any of the aforesaid property, or relating thereto; (g) the proceeds of any sale, assignment, lease or other disposition of the any of the property described herein, any claim resulting from such a sale, assignment, lease or other disposition, as well as any property acquired in replacement thereof; (h) any indemnity or proceeds of expropriation payable in respect of any of the property described herein; and (i) any rights attached to any of the property described herein, as well as the fruits and revenues thereof. 89. The Merchant hereby authorizes to the registration of the hypothec granted herein at the Quebec Registre des droits personnels et réels mobiliers (RDPRM) by the Home Trust or any affiliate or subsidiary thereof, or any assignee or designee thereof, in order to register and perfect the hypothecary rights created hereunder. The Merchant acknowledges receipt of an executed copy of this Agreement and, to the extent permitted by applicable law, waives the right to receive a copy of the document evidencing the registration of the hypothec created hereby. 90. Notices. Merchant agrees that WePay can provide disclosures and notices regarding the Services to Merchant by posting such disclosures and notices on the WePay website, emailing them to the email address listed in the Merchant's WePay account, or mailing them to the address listed in your WePay account. The Merchant agrees that such electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. All communications to Home Trust or WePay under this Agreement will be in writing and will be delivered in person, via email or by mail courier, return receipt requested, addressed to the following: Home Trust
145 King Street West, Suite 2400
Toronto, Ontario M5H 1J8 Canada WePay Merchant Service
350 Convention Way, Suite 200
Redwood City, CA 94063.
1-855-469-3729 The parties may, from time to time, designate different persons or addresses to which subsequent communications will be sent by sending a notice of such designations in accordance with this Section. 91. Complaints. All complaints in respect of WePay shall be directed to Home Trust at the address provided above. All complaints in respect of Home Trust shall be directed to Home Trust, attention Chief Compliance Officer, at the address provided above. Any unresolved complaints should be forwarded to the Chief Compliance Officer of Home Trust at the address above. If the complaint remains unresolved, you have the right to refer your dispute to the Canadian Banking Ombudsman Inc., a third party dispute resolution agency at the address below: Ombudsman for Banking Services and Investments
P.O. Box 896 Station Adelaide
Toronto, Ontario MSC 2K3 Canada Also, pursuant to the Trust and Loan Companies Act, if you have a complaint in respect of a deposit account, a payment, credit or charge card, or the disclosure of or manner of calculating the cost of borrowing in respect of a loan the complaint may be communicated in writing to: Financial Consumer Agency of Canada
6th Floor, Enterprise Building
427 Laurier Ave. West
Ottawa, Ontario K1R 1B9 Canada 92. Disclaimers: THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH MERCHANT. THIS DISCLAIMER OF WARRANTY EXTENDS TO MERCHANT AND ALL USERS OF MERCHANT'S GOODS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 93. Audit. During the term of this Agreement and for 2 years thereafter, Servicers shall have the right to examine Merchant's records, books, systems, controls, processes and procedures for the purpose of verifying Merchant's compliance with the terms and conditions of this Agreement. Merchant shall provide to the auditors and personnel of Servicers reasonable access to records and shall cooperate and provide to such auditors, in a timely manner, all such assistance as they may reasonably require in connection with any such audit. Except in the event that Servicers have a reasonable basis to believe that Merchant is in violation of any Rules or laws, or in breach of any warranties, Servicers will provide Merchant no less than 5 days written notice prior to the date of an audit, the audit will be conducted during Merchant's normal business hours, and audits shall occur no more than twice in any calendar year.