Terms of Service

CMS Terms of Service - Canada

Dated: August 18, 2023

These Terms of Service are a legal agreement (this “Agreement”) between the merchant on whose behalf they are accepted (“Merchant,” “you” or “your”) and Chase Paymentech Solutions Inc. (“Chase Merchant Services”, “CMS”, “we”, “our” or “us”), an Ontario corporation, for itself and on behalf of JPMorgan Chase Bank, N.A. (“Member”). Under the terms of this Agreement, CMS will be the provider to Merchant of the services necessary to authorize, process, and settle the Merchant’s credit and debit card transactions as set forth in the Agreement.

As used in this Agreement, the “Service” refers to CMS’s payment processing services as delivered through the application programming interface (“API”) and related technology provided by WePay, Inc. (“WePay”), a Delaware corporation and a subsidiary of Member and accessed through integrated third party or Chase platforms (“Platforms”). WePay and/or Platform may perform certain of CMS’s obligations under this Agreement. You agree to comply with this Agreement and with all terms of service, policies, notices, and other content relevant to the Service that appear on (i) WePay’s website at www.wepay.com, or (ii) the website of the Platform through which you access the Service (collectively, the “Website”).

1. Merchant Relationship with CMS

Merchants enter into transactions with persons who pay them (“Customers”).  CMS is not a party to these transactions.

Merchants must register for the Service directly with CMS or through a Platform.  To register, a Merchant provides information, including email address and a self-selected password, in order to create an account (“Account”).  You may also be issued access keys that may be used to authorize certain transactions.  You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them.

Merchants must provide additional information to identify the person that opens an Account, such as business name, physical address, telephone number, government identification number, date of birth and beneficial ownership information (where applicable).  You agree to provide supplemental documentation upon request (including but not limited to:  certificate of incorporation, passport, driver’s license or a business license and financial statements).  As the person signing electronically on behalf of the Merchant, you agree that the information provided is complete and accurate to the best of your knowledge and authorize CMS, directly or through third parties, to make inquiries or verify that this information is accurate (for example, through social media or third party databases).  You specifically authorize CMS to obtain credit reports from time to time and use them in connection with establishing and maintaining your Account.  You agree to promptly notify CMS if there are any significant changes to the nature of your business (including changes to any trade name(s)), product lines or services).

The information you provide in connection with this Agreement and your Account must at all times be accurate and complete.  Specifically, when you register, you must demonstrate that you can receive email at the email address you provide.  If you do not confirm your email address, then (a) fourteen (14) days after you accept your first payment, you will not be able to accept additional payments, and (b) thirty (30) days after you accept your first payment, CMS will refund to your Customers all of the payments you have accepted.  In addition, in order to settle the payments you have accepted, you must provide details of an account (the “Settlement Account”) that is used primarily for business purposes and that you maintain at a bank that is a member of the Canadian Payments Association, as described in the Pre-Authorized Debit Authorization section below (the “PAD Authorization”).  If you do not provide identity and settlement information, then (a) thirty (30) days after you accept your first payment, you will not be able to accept additional payments, and (b) unless you provide identity and settlement information promptly, CMS will refund to your Customers all of the payments you have accepted.  Finally, if at any time CMS or the Platform are unable to verify that the identity information you provided is correct and up-to-date, then, unless you provide verifiable information promptly, (a) CMS will disable your Account so that you cannot accept additional payments, and (b) CMS will refund to your Customers all of the payments that you have accepted by not settled. Neither CMS nor the Platform will have any liability to you for your inability to accept payments or for refunds pursuant to this paragraph.

During the term of this Agreement, and thereafter until CMS notifies you that all amounts due under this Agreement have been paid in full, you may not close the Settlement Account without substituting another Settlement Account. You are solely responsible for all fees, costs, and overdrafts associated with the Settlement Account. You hereby authorize CMS to initiate electronic credit entries and adjustments to the Settlement Account at any time, and electronic debit entries to the Settlement Account at any time to obtain all regular occurring payments required under this Agreement including, but not limited to, payments required to establish a Reserve (as defined in Section 11 below), and all payments that are set out in Section 7 of this Agreement without regard to the source of any funds in the Settlement Account(s), in accordance with the PAD Authorization. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PAD AUTHORIZATION, YOU ACKNOWLEDGE AND AGREE THAT CMS MAY TERMINATE THIS AGREEMENT IMMEDIATELY WITHOUT NOTICE IF YOU REVOKE YOUR CONSENT TO DEBIT THE SETTLEMENT ACCOUNT UNDER THE PAD AUTHORIZATION. This authority will remain in full force and effect until we notify you that all amounts due under this Agreement have been paid in full. CMS will not be liable for any delays in receipt of funds or errors in Settlement Account entries caused by third parties, including, without limitation, delays or errors by the Card Networks (as defined in Section 2 below) or your financial institution.

CMS allows individuals, businesses, and non-profit organizations to register for the Service if they are located in Canada. You must be either a Canadian citizen, a legal permanent resident of Canada, or a business or nonprofit organization having a physical presence in Canada and authorized to conduct business there. An individual may open an Account for a business or nonprofit organization only if the business or organization is legitimate and the individual (i) is eighteen (18) years of age or older, and (ii) has the authority to enter into this Agreement on behalf of the business or organization. Acceptance of this Agreement by an authorized individual constitutes acceptance by the business or nonprofit organization.

2. Limitations of CMS’s and Others’ Responsibility

Neither CMS nor any third party (including without limitation WePay) makes any representations or guarantees regarding Merchants or Customers utilizing the Service. Use of the Service in no way represents any endorsement by CMS or any “Card Network” (defined following), of Merchant’s existence, legitimacy, ability, policies, practices, or beliefs. “Card Network” means any payment method provider whose payment method is accepted by CMS for processing including, without limitation, Mastercard International Inc., Visa International Inc, Visa Canada, Acxsys Corporation, American Express and/or Amex Bank of Canada, other credit and debit card providers, debit network providers, stored value, and loyalty program providers.  Card Network also includes the Payment Card Industry Security Standards Council. 

CMS has no control of, or liability for, goods or services that are paid for with the Service.  Merchant acknowledges and agrees that receipt of Customer information via the Service does not indicate that the Customer’s card has sufficient available funds, that a transaction will be authorized or processed, or that the transaction will not later result in a “Chargeback” (as defined in Section 17 below) or reversal.

A nonprofit organization may use the Service to accept payments as a Merchant. Not all nonprofit organizations are tax-exempt, and not all contributions to nonprofit organizations are tax-deductible. Nonprofit organizations are responsible for correctly classifying themselves and their transactions, issuing any required reports and receipts, and making any required tax or other filings. Contributors are responsible for verifying the status of organizations to which they donate and reporting their donations correctly for tax and other purposes. CMS specifically disclaims any liability in this regard.

3. Merchant Fees

Platforms are responsible for setting fees for transaction and exceptions processing and disclosing them to their Merchants. Platforms may charge an additional fee for the value-added services they provide. If the Platform does not set fees otherwise, then CMS charges the Platform’s Merchants 2.9% + $0.30 for transaction processing; and $15.00 per Chargeback, in addition to the amount of the Chargeback. If Merchant makes a “Refund” (as defined in Section 16 below) in full, CMS and Platform will return their respective transaction processing fees. If Merchant makes a Refund in part, CMS will not return its transaction processing fees, and the Platform may or may not return its fees (please contact your Platform regarding its policy). Typically, fees are netted against other funds due to Merchant or debited from the Merchant's Settlement Account. Merchant agrees to pay the fees for the Service that are disclosed by the Platform.

A Platform may enable a Merchant to increase the amount it collects from Purchasers by these fees or by other amounts. Merchants may only do this in compliance with the applicable “Card Network Rules” (defined in Section 6 below).

Subject to the terms of this Agreement, CMS and Platform reserve the right to change fees. CMS or Platform will give you 90 days’ notice before the effective date of any increase in a fee, any new fee, or any decrease in interchange that is not passed on to you. If you continue to use the Service after the notice period, the change will apply to you. If you do not agree to any change in fees, you must close your Account and terminate this Agreement.

4. Electronic Communications and Consent

Electronic Delivery

By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that CMS provides (either directly, through WePay or through the Platform) in connection with your Account and your use of the Service. CMS, WePay or the Platform will provide Communications to you by emailing them to you at the primary email address listed in your Account registration, by texting them to you at the primary telephone number listed in your Account registration, by emailing or texting you a link or instructions how to access them on a website, or (if permitted by law) by posting them on the Website. CMS, WePay or the Platform may also provide certain Communications by postal mail to the street address listed in your Account registration.  Communications are considered received by you within 24 hours of the time they are emailed to you, posted to the Website, or mailed to you. You further agree that your electronic signature has the same effect as your manual, physical signature.

Updating Your Contact Information

It is your responsibility to keep your primary email and street address up to date in your Account. You understand and agree that if CMS, WePay or the Platform sends you a Communication but you do not receive it because your primary email or street address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, CMS will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add CMS, WePay and the Platform to your email address book so that you will be able to receive the Communications sent to you.

If your email address becomes invalid such that electronic Communications sent to you by CMS, WePay or the Platform are returned, then CMS may close your Account, and you will not be able to transact any activity using your Account until we receive a valid, functioning primary email address from you.

5. Prohibited Merchants and Activities

By registering as a Merchant, you also confirm that you are not one of the persons listed below and you will not accept payments or use the Service in connection with the activities, items or services set forth below.

• Drugs, Drug Proprietaries, Druggist Sundries (B2B)
• Adult Entertainment and Adult Oriented Businesses
• Collection Agencies / Consumer Debt Buyers / Collection Litigation Law Firms
• Credit Risk Start-up professional sports leagues
• Products/services solely based on guaranteed rebate, refund or prize
• Lifetime guaranty
• Lifetime memberships
• Airlines
• Car rental agencies
• Branded Lodging - Hotels, Motels, Resorts
• Timeshares
• Travel Agencies
• Travel Tour Operators
• Pharmaceuticals, Non-face-to-face activity
• Tobacco / E-cigarettes / Vaping
• Direct Marketing – Outbound Telemarketing
• continuity subscription practices
• Casinos and other Gaming establishments
• Online Sports Betting (including Daily Fantasy Sports)
• FinTechs (e.g., P2P Crowdfunding) / Marketplaces / Payment Facilitators
• Ingestible products containing hemp-derived CBD (e.g., supplements and food additives) / excluding Canada
• Digital wallet, stored value, top-up wallet, prepaid companies, prepaid phone cards or cash services, sale of mobile minutes, or quasi cash
• Cannabis (excluding Canada)
• Cyberlockers
• Direct Marketing: Travel-related Arrangement Services
• Non-Financial Institutions-Foreign Currency-Cryptocurrency Merchants
• High-risk Securities
• Skill Games Merchants
• Government-Owned lottery Merchants (U.S. Region only)
• Government-Licensed Horse / Dog Racing (U.S. Region only)
• Dating Services
• Government-Owned lottery Merchants (specific countries)

You agree to provide additional documentation upon request for risk assessment purposes and to verify that you have not engaged in prohibited activity.

If CMS determines that you have received funds resulting from fraud or a prohibited activity, CMS may terminate this Agreement and close your Account and, to the extent permitted by law, those funds may be frozen, returned to the Customer, or seized.

In addition, if we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, your access to the Service, and any of your transactions with law enforcement.

6. Our Role and Your Responsibilities

You are not a third-party beneficiary of any agreements between CMS or the Member and any third party, including without limitation WePay and the Card Networks.  Each of the Card Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you.  Some of the Card Networks may require a direct agreement with you.  If you are required to enter into such an agreement and you do not do so, we may suspend or terminate this Agreement, your Account or both.

Furthermore, you must abide by the applicable “Card Network Rules” (defined following). “Card Network Rules” means all bylaws, rules, programs, and regulations, as they exist from time to time, of the Card Networks.  Notwithstanding CMS's assistance in understanding the Card Network Rules, you expressly acknowledge and agree that you are assuming the risk of compliance with all provisions of the Card Network Rules, regardless of whether you have possession of those provisions.  You agree to reimburse CMS and Member for all fines, fees, penalties, liabilities, or other charges or assessments by a Card Network or other payment network relating to your actions or your transactions (“Card Network Liabilities”).  The Card Networks make excerpts of their respective Card Network Rules available on their websites (including http://www.mastercard.com/ca/merchant/en/getstarted/rules.html, http://usa.visa.com/merchants/operations/op_regulations.html, http://www.americanexpress.ca/merchantguide (for payments accepted through the OptBlue Program described in Section 29), www.americanexpress.ca/merchantpolicy (for merchants with a direct relationship with American Express) and www.discover.com). 

7. Your Pre-Authorized Debit (“PAD”) Authorization

Merchant acknowledges that this authorization (the “Authorization”) is provided for the benefit of CMS and Merchant’s financial institution (the “Financial Institution”) and is provided in consideration of the Financial Institution agreeing to process all debits against the Settlement Account in accordance with the Rules of Payments Canada, formerly known as the Canadian Payments Association.

As the person signing electronically on behalf of Merchant, you certify that you are an owner, partner, director or officer of the Merchant and have been duly authorized to sign this Authorization and Agreement on behalf of Merchant.  You warrant and guarantee that you are the only person whose signature is required to sign on the Settlement Account and that your acceptance of this Authorization and Agreement constitutes Merchant’s electronic signature.  Merchant acknowledges that Merchant’s acceptance of this Authorization constitutes delivery by Merchant of this Authorization to CMS and to the Financial Institution.

Merchant hereby authorizes CMS to draw on the Settlement Account for the purpose of paying CMS all regular occurring payments required under the Agreement including, but not limited to the following regular payments: all payments required to establish a “Reserve” (as defined in Section 11 below), the payment of all fees, charges and other amounts Merchant has agreed to pay for services under the Agreement, all payments of Refunds (as defined in Section 16) and Chargebacks (as defined in Section 17) , all payment of fees, charges, fines, assessments, penalties or other liabilities that may be imposed on CMS or Merchant, and all related costs and expenses incurred by CMS and any other amounts owing to CMS pursuant to this Agreement, or any other agreement between Merchant and CMS (a “pre-authorized debit” or “PAD”). In particular, Merchant agrees that if any payment is dishonoured by Merchant’s Financial Institution for any reason, CMS shall be entitled to issue another debit in substitution for the dishonoured debit. CMS shall be under no liability whatsoever caused by a dishonoured debit.

Merchant acknowledges that provision and delivery of this Authorization to CMS constitutes delivery by Merchant to the Financial Institution. Any delivery of this Authorization to CMS constitutes delivery by Merchant.

Merchant acknowledges that the debits authorized pursuant to this Authorization are for business purposes.

The details of the Settlement Account that CMS is authorized to draw upon are as input by Merchant on the Website.  Merchant will update the Website promptly with any change to the Settlement Account information.  If Merchant changes the Settlement Account, Merchant is responsible for all costs incurred by CMS in connection with such change.

Merchant acknowledges that the Financial Institution is not required to verify that (i) a PAD has been issued in accordance with the particulars of this Authorization or (ii) any purpose of payment for which the PAD has been issued has been fulfilled by CMS as a condition to honouring a PAD issued on Merchant’s Settlement Account.

This Authorization may be cancelled at any time upon notice by Merchant. Merchant acknowledges that in order to revoke this Authorization, Merchant must provide notice of revocation to CMS. Merchant acknowledges that it could take up to 10 business days after CMS’s receipt of such notice to implement the revocation. CMS may debit the Settlement Account up until the time when the revocation is implemented by CMS. Revocation of this Authorization does not terminate the Agreement. The PAD Authorization applies only to the method of payment and does not otherwise have any bearing on the Agreement. To obtain a sample cancellation form, or for more information on the right to cancel this Authorization, Merchant may contact Merchant’s Financial Institution or visit https://www.payments.ca/.  Unless revoked, this Authorization remains in effect after termination of the Agreement until all Merchant’s obligations under the Agreement have been paid in full.

Merchant understands that Merchant has certain recourse rights if any debit does not comply with this Authorization. For example, Merchant has the right to receive reimbursement for any debit that is not authorized or is not consistent with this Authorization. To obtain more information on Merchant’s recourse rights Merchant may contact Merchant’s Financial Institution or visit https://www.payments.ca/.

A PAD may be disputed in accordance with the Rules of Payments Canada. In order to be reimbursed, Merchant acknowledges that a declaration must be completed and presented to the Financial Institution holding the Settlement Account up to and including 10 business days after the date on which the PAD in dispute was posted to the Settlement Account.

Merchant acknowledges that a claim that the Authorization was revoked or any other reason is a matter to be resolved solely between CMS and Merchant when disputing any PAD after 10 business days.

Merchant acknowledges that Merchant understands the terms hereof and Merchant accepts and agrees to participate in this PAD arrangement with CMS.

Merchant acknowledges that CMS may assign this Authorization, whether directly or indirectly, by operation of law, change of control, or otherwise, by providing at least 10 days prior written notice to Merchant.

Merchant understands that Merchant can contact CMS at the address noted below to make any inquiries, obtain information or seek any recourse rights: P.O. Box 466, Station D, Toronto, Ontario, M1R 5B8, Telephone: 1.800.265.5158, Fax: 1.866.317.0678.

Merchant consents to the disclosure of any Personal Information that may be contained in this Authorization to the Financial Institution at which CMS maintains its account to be credited with the PADs as far as any such disclosure of Personal Information is directly related to and necessary for the proper application of the Rules of Payments Canada.

Merchant hereby waives the right to receive any notice from CMS of the amount to be debited to the Settlement Account and the dates on which the debits will be processed, as well as notice of any and all future changes to the amounts or payment dates.

8. Accepted Forms of Payment

The Service supports most domestic and international credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express or Discover logo. We may elect only to process cards that receive an authorization from the applicable issuer. 

You may discount among different payment methods (e.g. cash, debit card or credit card) or provide differential discounts among different Card Networks; however, discounts must be clearly marked at the point of sale.

9. Sharing Information

Merchant financial information, information related to Merchant’s transactions, and other information Merchant provides to CMS may be shared by CMS with its affiliates and with the Platform through which Merchant accesses the Service.  Merchant understands and agrees that CMS will not be responsible for Platform’s subsequent use or disclosure of such information. CMS will not otherwise disclose or use such information other than as required or permitted by this Agreement, the Card Networks, applicable law or JPMorgan Chase Merchant Services Privacy Policy for the United States and Canada. CMS may prepare, use, and/or share with third parties, aggregated, non-personally identifiable information derived from transaction data of all of CMS’s customers or specific segments of CMS’s customers.

10. Settlement

CMS will settle funds to the Merchant's Settlement Account according to the schedule the Merchant selects (daily, weekly, or monthly). Merchants may request ad-hoc settlement at any time.  If CMS cannot transfer the funds to the Merchant’s Settlement Account or other payment instrument (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), CMS may refund the funds to the Customer or escheat them pursuant to Section 20, Dormant Account.  Neither CMS nor the Platform will have any liability to Merchant for funds so refunded or escheated.

Settlements to a bank account or other Card (as defined in Section 12 below) may be limited or delayed based on your perceived risk and history.  Should CMS need to conduct an investigation or resolve any pending dispute related to your Account, CMS may defer settlement or restrict access to your funds for the entire time it takes to do so. CMS may also defer settlement or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.  CMS may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Order”). CMS may deliver or hold any funds or any information as required under such Legal Order. CMS is not responsible for any losses that you may incur as a result of our response to or compliance with a Legal Order.

Furthermore, if CMS suspects future Chargebacks (as defined in Section 17 below) or disputes as a result of transactions to your Account, CMS may defer settlement and/or restrict access to your funds until CMS reasonably believes, in its sole discretion, that the risk of receiving a Chargeback or dispute has passed.  All settlements to Merchants are subject to review for risk and compliance purposes and can be delayed or postponed at CMS’s sole discretion. 

During the term of this Agreement, and for at least 180 days afterwards (or longer as we may request), Merchant shall not close its Settlement Account without substituting another Settlement Account.  Merchant authorizes CMS to initiate electronic credit entries and adjustments to the Settlement Account at any time, and electronic debit entries to the Settlement Account at any time to obtain all regular occurring payments required under this Agreement including, but not limited to payments required to establish a Reserve, and all payments that are set out in Section 3, Merchant Fees, and Section 6, Our Role and Your Responsibilities, without regard to the source of any monies in the Settlement Account(s), in accordance with the PAD Authorization.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PAD AUTHORIZATION, MERCHANT ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT MAY BE TERMINATED IMMEDIATELY BY CMS WITHOUT NOTICE IF MERCHANT REVOKES MERCHANT’S CONSENT TO DEBIT MERCHANT’S SETTLEMENT ACCOUNT UNDER THE PAD AUTHORIZATION.  This authority will remain in full force and effect until CMS notifies Merchant that all amounts due from Merchant under this Agreement have been paid in full.  CMS will not be liable for any delays in receipt of funds or errors in Settlement Account entries caused by third parties, including, without limitation, delays or errors by the Card Networks or Merchant’s financial institution.  

11. Reserve

At any time and from time to time, CMS may temporarily suspend or delay payments to you and/or require a “Reserve” (defined following) to protect CMS against the risks from you using the Service, including Refunds (defined in Section 16 below), Chargebacks (defined in Section 17 below), and Card Network Liabilities.  A “Reserve” is funds that CMS may withhold from you or require you to pay or obtain from any Settlement Account or other funding source associated with any Account you hold with CMS and which CMS maintains to protect CMS against a risk that CMS reasonably anticipates.  CMS will notify you of the amount of any required Reserve, which CMS will determine in good faith.  CMS will hold and control any required Reserve.  The Reserve will not bear interest, and CMS may commingle the Reserve with other funds.  You have no interest in any Reserve other than a contingent right to receive any unused funds.  CMS may periodically increase your required Reserve, or return Reserve funds no longer needed to manage your risk.  When CMS decides a Reserve is no longer needed, CMS will return all unused Reserve funds to you.  The right to require a Reserve will survive termination of this Agreement.  This means that this Section will remain in force even if you or we terminate the Agreement.

12. Payment Card Industry Compliance

Merchant acknowledges and understands the importance of compliance with the “Security Standards” (defined following), such as those relating to the storage and disclosure of transaction data and “Card Information” (defined following).  “Security Standards” means all rules, regulations, standards, or guidelines adopted or required by the Card Networks or the Payment Card Industry Security Standards Council relating to privacy, data security, and the safeguarding, disclosure, storage, processing, transmission, and handling of Card Information, including, without limitation, the Payment Card Industry Data Security Standards (“PCI DSS”).   “Card Information” means information related to a Customer or the Customer’s “Card” (defined following), that is obtained by the Merchant from the Customer’s Card, or from the Customer in connection with his or her use of a Card (e.g., a PIN number, credit limits, account balances, or the Customer’s postal code when provided as part of an address verification system).  For the avoidance of doubt, the data elements that constitute Card Information shall be treated according to their corresponding meanings as “cardholder data” or “sensitive authentication data” as such terms are used in the current PCI DSS.  “Card” means an account, or evidence of an account, authorized and established between a Customer and a Card Network, or representatives or members of a Card Network, that Merchant accepts from Customers as payment for a good or service. 

Merchant shall exercise reasonable care to prevent disclosure or use of Card Information, other than (a) to Merchant’s agents and contractors for the purpose of assisting Merchant in completing a transaction; (b) to the applicable Card Network; or (c) as specifically required by law.  Furthermore, Merchant acknowledges and understands that its use of any fraud mitigation or security enhancement solution (e.g. an encryption product or service), whether provided to Merchant by CMS or a third party, in no way limits Merchant’s obligation to comply with the Security Standards or Merchant’s liabilities set forth in this Agreement.

If at any time Merchant determines or suspects that Card Information has been compromised, Merchant must notify CMS immediately and assist in providing notification to such parties as may be required by law, Card Network Rules, or CMS otherwise deems reasonably necessary.  Merchant agrees to comply with all Security Standards.  Merchant further agrees to provide CMS, upon its request, with such tests, scans, and assessments of Merchant’s compliance with Security Standards as may from time to time be required by the Card Networks.

13. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with the transactions between you and your Customers. You are solely responsible for collecting, withholding, reporting and remitting any such taxes to the appropriate tax authority. CMS is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any such taxes to any tax authority.

Unless Merchant is otherwise exempt and, if applicable, provides a valid exemption certificate, Merchant agrees to pay any taxes imposed on the Service, “Equipment” (defined following), “Intellectual Property” (as defined in Section 27 below), supplies, and other goods purchased or tangible property provided under this Agreement, and Merchant authorizes CMS to increase the amount collected from Merchant to reflect any and all assessments or increases in the sales, use, excise, goods and services, value added, occupational, property, lease, or other taxes imposed upon such sale or lease of services, tangible property, Intellectual Property, Equipment, supplies, and other goods purchased.  “Equipment” is a point-of-sale terminal and/or any software, hardware or other Card processing equipment used by Merchant to obtain Card Information and transmit transaction data to CMS.


14. Customer Service Provided by Merchants

You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Customer, returns, Refunds, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from CMS.  Merchants will assure that Customers have access to clear customer service information, including an active customer service email address and telephone number.

15. Electronic Commerce Website Provided by Merchants

To the extent that Merchant operates an electronic commerce website through which transaction data is generated, in addition to any requirements otherwise set forth in this Agreement, Merchant shall display the following on its website: (a) its Customer data privacy policy; (b) a description of its security capabilities and policy for transmission of Card Information; and (c) the address of Merchant’s fixed place of business (regardless of website or server locations). Merchant acknowledges that under certain Card Network Rules, Merchant cannot rebut a Chargeback (defined in Section 17 below) where the Customer disputes making the purchase and Merchant does not have an electronic record (e.g., “swiping” or “inserting” or “tapping” a Card or physical imprinting of the Card).

16. Refunds Provided by Merchants

A “Refund” is any refund or credit issued for any reason including, without limitation, for a return of merchandise or cancellation of services, and any adjustment of a transaction. You agree to process returns of, and provide Refunds for, goods or services through your Account in accordance with this Agreement and the Card Network Rules. The Card Network Rules require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to Customers at the time of purchase, (c) not give cash Refunds to a Customer in connection with a Card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your Refund policies must be the same for all payment methods. If your Customer is dissatisfied with your Refund policy, your Customer may chargeback the payment.

17. Merchant’s Liability for Chargebacks

A “Chargeback” is a reversal of a transaction that Merchant previously presented to CMS pursuant to the Card Network Rules. Merchant has full liability for all Chargebacks. Some of the most common reasons for Chargebacks are: (a) a Merchant fails to issue a Refund to a Customer upon the return or non-delivery of goods or services; (b) a Customer disputes a transaction or claims that the transaction is subject to a set-off, defence, or counterclaim, (c) a Customer refused to make payment for a transaction because, in the Customer’s opinion, a claim or complaint has not been resolved, or has been resolved in an unsatisfactory manner, (d) a transaction was not authorized, or (e) a transaction is unlawful, suspicious, or in violation of the terms of this Agreement.

18. How CMS and the Platform Handle Chargebacks

You owe CMS and will immediately pay the amount of any Chargeback and any associated fees, fines, or penalties assessed by CMS or the Card Networks. If you do not have sufficient funds in your Account, CMS will have the remedies set forth below in Section 19, Set-off and Collection Rights; Grant of Security Interest. If you have pending Chargebacks, CMS may delay settlement to you.

Further, if CMS reasonably believes that a Chargeback is likely with respect to any transaction, CMS may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Customer’s complaint, in which case CMS will retain and refund the funds; (b) the period of time under applicable law or regulation by which the Customer may dispute that the transaction has expired; or (c) CMS determines that a Chargeback on the transaction will not occur.


If CMS determines that you are incurring an excessive amount of Chargebacks, CMS may establish controls or conditions governing your Account, including without limitation, by (a) assessing additional fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying settlement, and (d) terminating or suspending the Service or closing your Account.

You agree to assist CMS and the Platform when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit CMS and the Platform to share information about a Chargeback with the Customer, the Customer's financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. CMS or the Platform will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, CMS will release the reserved funds to you. If a Chargeback dispute is not resolved in your favor by the Card Networks or issuing bank or you choose not to contest the Chargeback, CMS may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist CMS and the Platform in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) days of a request, may result in an irreversible Chargeback. CMS and the Platform reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

To the extent CMS has paid or may be called upon to pay a Chargeback or Refund for or on the account of a Customer and Merchant does not reimburse CMS as provided in this Agreement, then for the purpose of CMS obtaining reimbursement of such sums paid or anticipated to be paid, CMS has all of the rights and remedies of such Customer under applicable federal, provincial, or local laws and Merchant authorizes CMS to assert any and all such claims in its own name for and on behalf of any such Customer individually or all such Customers as a class.

19. Set-off and Collection Rights; Grant of Security Interest

CMS can, without notifying you or making a demand for payment retain, apply or set off any amount owed to you by CMS or the value of any of your property in the possession of CMS, against any amount you owe CMS, or our affiliates for any obligation irrespective of whether CMS has made any related demand (even if it is unmatured). All fees are deducted first from the transferred or collected funds and thereafter from your Account. If you do not have sufficient funds, CMS may collect from any funding source associated with your Account, or from any other Account under your control, or from any funding source associated with such other Account, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement, or (c) available in your Settlement Account or other Card registered with CMS. Your failure to pay in full amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1 1/2%) per month or the highest rate permitted by law. In its discretion, CMS or the Platform may make appropriate reports to credit reporting agencies and law enforcement authorities and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by email, by text or by phone, as provided by you to CMS or the Platform. Such communication may be made by CMS or by anyone on its behalf, including but not limited to WePay, Platform or a third party collection agent.

You assign and grant CMS a security interest in and lien on any and all funds held in your Account and any other funds and credits with CMS, including without limitation any Reserve under Section 11, Reserve, above, and also authorize CMS to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe CMS under this Agreement, including without limitation for any reversals of settlements or transfers made to your Account. You will execute any additional documentation required for CMS to perfect its security interest. You irrevocably assign to CMS all rights and legal interests to any interest or other earnings that accrue or are attributable to funds subject to this security interest.

20. Dormant Accounts

If there is no activity in your Account (such as a payment or settlement) for the period of time set forth in the applicable unclaimed property laws, and you have funds, CMS or the Platform may notify you by sending an email to your registered email address or a text to your registered telephone number. CMS or the Platform may also notify you by mail. If you do not initiate settlement of the funds or respond to the notice within the time period specified in the notice, CMS or the Platform may close your Account and CMS may escheat your funds in accordance with applicable law.

21. Statements and Errors

CMS or the Platform will provide a report of activities, including transactions and fees, relating to the Service (“Statement”), which is available for you to examine when it is available online. Neither CMS nor the Platform is responsible for you relying on balance, transaction or related information that is updated or corrected, or the accuracy or timeliness of information supplied by any third party. You agree that the Statements are sufficient for you to inspect and review activity and to identify errors and unauthorized or altered transactions. You will promptly examine your entire Statement once it is available. You will promptly, and no later than 90 calendar days after the Statement date, reconcile your Statement with your bank statements and other receipts from the same period, and notify CMS or the Platform of any: (a) unauthorized transactions, including any claims of such activity or requested adjustments, (b) alterations, errors, discrepancies and irregularities, or (c) discrepancies you identify when reconciling with your bank statements and other receipts. If you do not act in the timeframes above, you agree that you cannot: (i) assert your exercised reasonable care and promptness in reviewing your Statement and identifying errors, (ii) be reimbursed for a “Claim” (as defined in Section 32 below) refused as a result, and (iii) make a Claim or otherwise act against CMS for a subsequent loss that was preventable or caused by the same wrongdoer’s repeated act. You should make archival copies of your Statement data regularly. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data, and (b) reconciling all transaction information that is associated with your Account.

22. Privacy

Your privacy is very important to us. By accepting this Agreement, you confirm that you have read, understood and accepted the CMS’ Privacy Policy.

You agree that CMS may use and exchange your personal information with financial institutions and Card Networks for the purpose of providing you with the requested products and services and for security measures in relation to your account and as otherwise permitted by law. CMS may use your personal information to determine your eligibility for, and to offer you, additional products and services unless youY ask us not to by calling us at 1.800.265.5158. You consent to CMS’s collection, use and disclosure of personal information as described in this Agreement, to administer, service and enforce this Agreement, and otherwise in accordance with our Privacy Policy which may be amended from time to time and will be deemed effective when posted. A file containing your personal information will be maintained at our offices and will be accessible by our authorized employees and agents. You acknowledge that CMS uses service providers located outside of Canada to provide merchant processing and other services and as such: (A) CMS’s ability to provide card acceptance services and perform its obligations under this Agreement will be subject to the laws where CMS and its service providers are located; and (B) personal information may be processed outside of Canada and subject to applicable foreign legal requirements including lawful requirements to disclose personal information to governmental authorities in certain circumstances. For more information about CMS’s personal information handling practices, including our use of service providers outside of Canada, or to request access to or correction of personal information, contact our call centre at 1.800.265.5158 or ask to speak to CMS’s Privacy Officer.

23. Security

CMS has implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, CMS cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes.

If you discover a security-related issue, including any unauthorized use of your access credentials or Account, you will inform us of the issue immediately by contacting the WePay Security Team at security@wepay.com and the relevant Platform. You also agree not to disclose the issue to third parties until CMS and the Platform have addressed it unless otherwise required by law

24. Your Right to Terminate

You may terminate this Agreement by closing your Account at any time. When you close your Account, any funds that CMS holds for you at the time of closing, less any applicable fees and other liabilities, will be settled to you in accordance with Section 10, Settlement, and Section 11, Reserve, above.

If you accept American Express Payment Cards, you may cancel your acceptance of American Express Payment Cards at any time without penalty (including without payment of the early termination fee) by notifying CMS (an “Amex Cancellation Request”). CMS will process any Amex Cancellation Request as soon as reasonably practical but it may take up to thirty (30) days for an Amex Cancellation Request to take effect. Merchant agrees that this Agreement shall continue to apply to any American Express Payment Card Transaction submitted by Merchant to CMS, even if such Transaction was submitted following the date of the Amex Cancellation Request. If a Merchant cancels its acceptance of American Express Payment Cards pursuant to this Section, such cancellation will not affect Merchant’s right to accept other Payment Items or any other provision of this Agreement.

25. Our Right to Terminate

CMS may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. CMS may also suspend the Service and access to your Account (including the funds in your Account) if you (a) have violated the terms of CMS’s policies, Platform’s policies, or this Agreement, (b) pose an unacceptable credit or fraud risk, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct or violate the Card Network Rules or Security Standards.

26. Effect of Termination

If your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license provided under this Agreement shall end, (d) that CMS has the right to delete all of your information and Account data in accordance with its record-keeping policies, except as required by applicable law, and (e) that CMS shall not be liable to you or any third party for any of the foregoing actions. CMS will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of Service. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us or the Platform as provided in this Agreement. After termination of this Agreement, you continue to be liable for all Chargebacks, Refunds, fees, Card Network Liabilities, and adjustments resulting from or relating to transactions processed pursuant to this Agreement. CMS’s right of direct access to your Settlement Account will survive termination until such time as all credits and debits permitted by this Agreement and the PAD Authorization and related to transactions prior to the effective date of termination have been made. If you submit transactions after the date of termination, CMS may, but is not required to, process such transactions. All transactions so processed will be in accordance with and subject to all the terms of this Agreement. This Section 26 will survive termination of this Agreement.

27. Intellectual Property Rights

CMS and WePay are members of the JPMorgan Chase & Co. family of companies (“Chase”). Chase retains all ownership and copyright interest in and to any and all intellectual property, computer programs, related documentation, technology, know-how and processes developed by Chase and provided in connection with this Agreement (collectively, the “Intellectual Property”). Chase grants Merchant a non-exclusive license to use its Intellectual Property for the limited purpose of performing under this Agreement. Unless otherwise provided in a separate agreement between Merchant and CMS, any equipment, terminals or machinery provided by CMS but not developed by CMS, is being licensed or purchased by Merchant directly from the manufacturer or developers of such equipment, terminals or machinery. Merchant acknowledges that the licenses granted herein are limited to Merchant’s own use exclusively and that Merchant does not have the right to sub-license any of the Intellectual Property in either their original or modified form. Merchant agrees that Merchant will not reverse-engineer, disassemble or decompile the Intellectual Property. Merchant shall not give any third party, except Merchant’s employees, access to Intellectual Property without CMS’s prior written consent.

28. Your Representations and Warranties; Our Audit Rights

You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform this Agreement; (b) all the information provided by you when you registered is accurate and complete; (c) any sales transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a Customer; (e) you will fulfill all of your obligations to each Customer for which you submit a transaction and will resolve any customer dispute or complaint directly with the Customer; (f) you and all transactions initiated by you will comply with all laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Service will be in compliance with this Agreement; and (j) you are not a “Bearer Share Company” (defined following) and you do not have any outstanding and will not issue any new “Bearer Shares” (defined following). “Bearer Share Company” means a type of company which, unlike registered share companies, issues its securities as Bearer Shares. “Bearer Shares” means securities that are not registered in the name of the owner on the books of the issuing corporation and thus payable to any possessor of the shares.

With prior notice and during Merchant’s normal business hours, CMS’s duly authorized representatives may visit Merchant’s business premises and may examine Merchant’s books and records that pertain to Merchant’s transactions or Merchant’s compliance with this Agreement. Furthermore, Merchant may be contacted by CMS or a third party contracted by CMS who will need to gain access to Merchant’s business operation to perform a site survey and inspection (the “Site Survey”) in compliance with Card Network Rules. CMS may suspend the settlement of Merchant’s transactions until a Site Survey can be completed and approved by CMS. In the event that Merchant fails to reasonably cooperate with the required Site Survey, or in the event the Site Survey is not approved by CMS, CMS may terminate this Agreement immediately upon notice to Merchant.

29. American Express OptBlue Provisions

The American Express OptBlue Program (the “OptBlue Program”) is a program under which CMS may enable “Small Merchants” (defined following) to accept American Express Payment Cards. If you accept American Express, and your American Express and JCB “Charge Volume” (defined following) in a rolling 12-month period is $1,000,000.00 or less, you are a “Small Merchant” and this Section 29 will apply to you. “Charge Volume” means the total charges on net purchases less Chargebacks, credits and any other amounts owed to American Express. If your annual American Express and JCB Charge Volume is greater than $1,000,000.00 (a “High CV Merchant”), or you are otherwise ineligible as determined by American Express, you will not participate in the American Express OptBlue Program and you will enter into a direct acquiring relationship with American Express. The $1,000,000 Charge Volume limit does not apply to the following industries: emerging markets, healthcare, residential rent, or utilities.

If Merchant is a Small Merchant, by accepting American Express Payment Cards and remitting transaction data to CMS, Merchant is agreeing to participate in the OptBlue Program. If Merchant is participating in the OptBlue Program, Merchant hereby agrees to comply with the requirements, acknowledgments and authorizations specific to Merchant’s acceptance of American Express Payment Cards set forth in this Section 29. Further, Merchant, by participating in the OptBlue Program, agrees to the limited manner described in this Section 29 by which American Express may directly market and communicate to Merchant, or use and disclose information Merchant provides in connection with its participation in the OptBlue Program.

Merchant hereby agrees to accept American Express Payment Cards only in accordance with the terms of this Agreement and the American Express OptBlue Program Merchant Guide Canada which is located at www.americanexpress.ca/merchantguide (the “Program Merchant Guide”), as may be amended from time to time, provided however that (A) American Express’s right to provide you information, notify you or otherwise provide you Solicitations (defined below) shall be as set forth below and not the Program Merchant Guide; and (B) American Express’s right to use transaction data and Merchant data provided to American Express by CMS shall be as set forth below and not the Program Merchant Guide.

Merchant hereby authorizes CMS to submit transactions to, and receive settlement from, American Express.

If Merchant is participating in the OptBlue Program, Merchant understands and agrees that American Express may communicate with Merchant to provide information about the OptBlue Program and other programs regarding the American Express network as set forth below, including:

A. “welcome acceptance” communications;

B. communications designed to inform Merchant how to increase Customers’ usage of American Express Payment Cards (e.g., information regarding posting of the American Express logo);

C. communications required by law or to comply with directions from American Express regulators;

D. communications necessary for Merchant to fulfill or comply with offers made by American Express to its Customers;

E. communications under certain circumstances where American Express seeks to transfer Merchant to direct card acceptance program with American Express because Merchant is a High CV Merchant or is otherwise deemed ineligible to participate in the OptBlue Program or CMS no longer participates in the OptBlue Program;

F. communications about programs on the American Express network that are relevant to merchants participating in the OptBlue program, but do not include Solicitations (as defined below); and

G. communications about the benefits to Merchant of accepting the American Express card, but do not include Solicitations.

Although American Express may send Merchant general information about American Express programs (as further described above), American Express will not directly solicit Merchant to register for, purchase or otherwise obtain products or services unrelated to the OptBlue Program (“Solicitations”). Merchant may, however, receive Solicitations from American Express if it has provided the necessary data or consent directly to American Express outside the scope of this Agreement. To register for, purchase or otherwise obtain products or services from American Express unrelated to the OptBlue Program, please contact American Express directly by calling American Express at 1-877-255-4334 (toll-free).

Merchant understands and agrees that CMS will disclose transaction data and Merchant data to American Express, and American Express may use such information to perform its responsibilities in connection with the OptBlue Program, perform analytics and create reports, to communicate with Merchant in the manner permitted above and for any other lawful purposes (other than Solicitations).

American Express uses reasonable administrative, technical and physical security measures to protect the security and confidentiality of Merchant data obtained from CMS under this Agreement. American Express requires industry standard confidentiality and data security measures from third parties who are authorized by American Express to process data on its behalf. American Express only shares data in accordance with its data protection privacy principles, available here: https://www.americanexpress.com/ca/en/content/privacy-statement.html?inav=ca_legalfooter_privacy.

To the extent that there is any conflict between this Section 29 (the “American Express Disclosure and Consent Provisions”) and any other term of this Agreement or the JPMorgan Chase Merchant Services’ Online Privacy Policy in respect of American Express’ use data, the American Express Disclosure and Consent Provisions shall take precedence over any such other term.

Merchant hereby acknowledges that it may be converted from the OptBlue Program to a direct payment card acceptance relationship with American Express if and when it becomes a High CV Merchant. Merchant acknowledges that upon any such conversion, Merchant’s transactions will be “Conveyed Transactions” (defined following), processing of any American Express Payment Card will be governed by American Express’ then current card acceptance agreement as will be provided to the Merchant directly by American Express (and not this Agreement) and American Express will be solely responsible for setting pricing and other fees payable by Merchant for acceptance of any American Express Payment Card. Payment of proceeds due to Merchant for Conveyed Transactions shall be governed by the agreement Merchant has with American Express, and CMS does not bear any responsibility for its performance thereunder, including, without limitation, the funding and settlement of Merchant’s Conveyed Transactions. “Conveyed Transaction” means any Transaction conveyed to American Express for settlement by American Express directly to Merchant.

Merchant will not assign to any third party any payments due to Merchant under this Agreement. All indebtedness arising from charges will be for bona fide sales of goods or services (or both) at Merchant’s establishments and free of liens, claims and encumbrances other than ordinary sales taxes. The prohibition on assigning payments due to Merchant, however, does not apply to the sale of transaction receivables to CMS or its affiliates or a partner of CMS or its affiliates that provides cash advance funding.

Merchant hereby acknowledges that its Refund policies for purchases using American Express Cards must be at least as favorable as its Refund policy for purchases made on Cards of other Card Networks. Merchant agrees to disclose to holders of American Express Cards the Refund policy at the time of purchase and in accordance with applicable law.

Merchant may not collect or attempt to collect from any holder of American Express Cards for any purchase or payment on an American Express Card unless: (A) the charge has been charged back to the Merchant; (B) Merchant has accepted/paid the charge (i.e., no Chargeback reversal has been processed); and (C) Merchant has a right to collect or attempt to collect funds to recover unpaid amounts lawfully owed to Merchant by such holder of American Express Cards.

NOTICE REQUIRED BY AMERICAN EXPRESS: American Express requires that CMS inform you that (i) American Express charges a wholesale discount rate and not interchange and (ii) American Express operates a non-interchange based network.

30. Disclaimer; Limitation of Damages

Subject to Section 21, Statements and Errors, CMS will, at its own expense, correct any transaction data to the extent that such errors have been caused by CMS or by malfunctions of the Service. Under no circumstances will CMS’s financial responsibility for its failure of performance under this Agreement exceed the total fees paid to CMS under this Agreement (net of Card Network Fees, third party fees, interchange, assessments, penalties, and fines) for the six (6) months prior to the time the liability arose. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO MERCHANT’S FAILURE TO COMPLY WITH THE SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES OR SPONSORING BANKS, OR ANY CARD NETWORK BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY LOSS, THEFT, DISAPPEARANCE OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT. ANY FINES, FEES, PENALTIES OR ASSESSMENTS IMPOSED BY THE CARD NETWORKS RELATED TO MERCHANT’S ACCEPTANCE OF CARDS SHALL NOT BE DEEMED TO BE CONSEQUENTIAL DAMAGES. CMS AND MEMBER HEREBY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES, PRODUCTS AND EQUIPMENT PROVIDED HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION MADE TO MERCHANT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, OR FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.

CMS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A PLATFORM OR OTHER THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. CMS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

31. CMS’s Liability

CMS is not liable for any claim of negligence if we and the Member follow our respective procedures, which you agree constitute our exercise of good faith and ordinary care.

CMS is not liable for any fraud or forgery, other than by each of us.

CMS is not liable for acts or omissions of the Platform.

CMS does not guarantee (a) the security, sequence, timeliness, accuracy or completeness of any service, data or technology, or (b) access to any service or technology.

32. Timely Filing of Claims

As used in this Agreement, “Claim” means an actual or potential action, loss, claim, dispute, controversy, damage, demand, liability, garnishment, lien, levy or other order, cost or expense, including special damages, attorney fees and dispute resolution costs. You must file a Claim in connection with the Service with a tribunal or court of competent jurisdiction within two years of the event that gave rise to the Claim. Failure to do so will mean you have waived that claim against us.

33. Indemnification

Merchant agrees to indemnify CMS, the Member, the Card Networks, and their respective affiliates, officers, directors, employees, agents, and sponsoring banks from any losses, liabilities, and damages of any and every kind (including, without limitation, CMS’s costs, expenses, and reasonable legal fees) arising out of (a) CMS’s reliance on information provided by Merchant, or Merchant’s authorized representative (including any information with respect to Merchant’s financial condition); and (b) any claim, complaint or Chargeback (i) made or claimed by a Customer with respect to any transaction or transaction data submitted by Merchant; (ii) caused by Merchant’s non-compliance with this Agreement or the Card Network Rules (including without limitation any breach of a representation or warranty made by Merchant or Merchant’s failure to comply with the Security Standards); (iii) resulting from any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; (iv) related to Merchant’s placement or the placement of any person owning or controlling Merchant’s business in one or more databases of terminated or high risk merchants maintained by the Card Networks. The indemnification provided in this Section does not apply to any claim or complaint to the extent it is caused by CMS’s own negligence or willful misconduct. The indemnification provided under this Section 33 shall survive the termination of the Agreement.

34. Disputes

If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support with any dispute.

35. Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial

THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO WITHOUT REFERENCE TO CONFLICT OF LAW PROVISIONS. ANY ACTION, PROCEEDING, LITIGATION, OR MEDIATION RELATING TO OR ARISING FROM THIS AGREEMENT MUST BE BROUGHT, HELD OR OTHERWISE OCCUR EXCLUSIVELY IN TORONTO, ONTARIO, CANADA AND THE PARTIES HEREBY ATTORN TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF TORONTO, ONTARIO. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO CONTEST JURISDICTION OR VENUE. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF MERCHANT HAS OPTED TO ACCEPT AMERICAN EXPRESS PAYMENT CARDS AND IS PARTICIPATING IN THE AMERICAN EXPRESS OPTBLUE PROGRAM, THEN ALL CLAIMS, ACTIONS AND PROCEEDINGS RELATING TO OR ARISING OUT OF MERCHANT’S ACCEPTANCE OF AMERICAN EXPRESS PAYMENT CARDS OR IN ANY OTHER MANNER RELATING TO OR INVOLVING AMERICAN EXPRESS WILL BE HANDLED THROUGH BINDING ARBITRATION IN THE MANNER PROVIDED IN THE PROGRAM MERCHANT GUIDE WHICH IS LOCATED AT WWW.AMERICANEXPRESS.CA/MERCHANTGUIDE AND REFERENCED IN SECTION 29 OF THIS AGREEMENT.

36. Assignment

Any transfer or assignment of this Agreement by Merchant, by operation of law, merger, or otherwise without CMS’s prior written consent is null and void. In the event of such transfer or assignment, the party to whom the Agreement was transferred or assigned shall be bound to the terms and conditions of this Agreement to the same extent as if CMS, Member and such assignee or transferee, as the case may be, entered into an agreement identical to this Agreement on the effective date of such transfer or assignment. Furthermore, Merchant shall indemnify and hold CMS and Member harmless from all liabilities, Chargebacks, expenses, costs, fees, and fines arising in connection with the submission of transaction data to CMS by such transferee or assignee. For purposes of this Agreement any transfer of voting control of Merchant or its parent, or the sale of all or substantially all of Merchant’s assets, shall be considered an assignment or transfer hereof. Upon notice to Merchant, another Card Network member may be substituted for Member under whose sponsorship this Agreement is performed and for whom CMS is acting as agent hereunder. Subject to Card Network Rules, CMS may assign or transfer this Agreement and its rights and obligations hereunder and may delegate its duties hereunder, in whole or in part, to any third party, whether in connection with a change in sponsorship, as set forth in the preceding sentence, or otherwise, without notice to or consent of Merchant. No receiver, interim receiver, receiver-and-manager, trustee-in-bankruptcy, sheriff, monitor or other officer of the court, assignee for the benefit of creditors, bailiff or other person charged with taking custody of a party's assets, undertakings, property or business shall have any right to continue or to assume or to assign this Agreement.

37. Third Party Services and Links to Other Web Sites

If you have consented to being offered services, products and promotions other than those provided under this Agreement, you acknowledge that such services, products and promotions may be provided by third parties and not by CMS. If you decide to use these third party products or services, you will be responsible for reviewing and understanding the terms and conditions associated with them. You agree that CMS is not responsible for the performance of these products or services. The Website may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by CMS. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement. CMS expressly disclaims any liability for these websites. Please remember that when you use a link to go from the Website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our Website, is subject to that website's own rules and policies.

38. Amendment

This Agreement may be amended at any time by CMS upon notice to Merchant that CMS in its sole discretion deems to be reasonable in the circumstances, including posting the revised Agreement on our Website. Any use of the Service after such notice or posting shall constitute your acceptance of this Agreement as modified.

39. Force Majeure

Neither party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labour strife, riots, war, terrorist attack, non-performance of CMS’s vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 39 will affect or excuse Merchant’s liabilities and obligations for Chargebacks, refunds, or unfulfilled goods and services.

40. Other Provisions

Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and CMS, and they describe the entire liability of CMS and Member and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and any other CMS agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that CMS may have under trade secret, copyright, patent or other laws. CMS's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.

41. Survival

Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.

42. Language of Agreement

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 CONTRAT ET TOUS LES DOCUMENTS S'Y RATTACHANT SOIENT RÉDIGÉS ET SIGNÉS EN ANGLAIS.