Terms of Service.
Please read these terms of service (“Agreement”) carefully as this Agreement constitutes a binding contract between the user that accepts this Agreement (“Merchant”) and Mondo Payments, having its address at 1310 Greene Avenue, Suite 650, Westmount, Quebec, H3Z 2B2 Canada (“Platform”) governing your use of the services available through the Platform website at https://www.mondopayments.com/ (“Site”) or integrated within your own merchant dashboard (“Dashboard”) through which they may be made available (the “Services”). By checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement on the sign-up page, installing the Dashboard, or otherwise accessing or using the Services, Merchant acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Merchant is using the Services on behalf of an entity, partnership, or other organization, then Merchant represents that they: (i) are an authorized representative of that entity with the authority to bind that entity to this Agreement and (ii) such entity agrees to be bound by this Agreement. If Merchant does not agree to the terms of this Agreement, then they are not permitted to use the Services.
ARBITRATION NOTICE. Except for certain kinds of disputes described in the Arbitration provision below, Merchant agrees that disputes arising under this Agreement will be resolved by binding individual arbitration, and BY ACCEPTING THIS AGREEMENT, Customer AND Platform ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. Customer AGREES TO GIVE UP Customer RIGHT TO GO TO COURT to assert or defend Merchant rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a single ARBITRATOR and NOT a judge or jury. See the Arbitration provision below.
The Platform Services are, integrated with certain third party servicers, that we call Third Party Servicers.
Platform recommends that you print a copy of this Agreement for your records. If not defined in the body of this Agreement, capitalized terms used in this Agreement are defined in the glossary at the end of this Agreement.
The Services consist of cloud-based (i) online marketing tools including online reputation management and online presence management; (ii) analytics services, each administered as per Merchant instructions entered via the Dashboard; and (iii) such other services as may be offered through the Account. Merchant may make certain selections of Services that they wish to procure through the Account.
Platform will provide the Services to Merchant for the term of this Agreement, subject to the payment of applicable Fees and compliance with the terms of this Agreement. As part of the Services, Platform hereby grants to Merchant a non-exclusive, non-transferable, non-assignable right to use the Services, as per the terms of this Agreement. Merchant acknowledges that the Services are cloud-based and hosted services and no copies of the Services or Platform System will be delivered to Merchant, other than the Dashboard. The Services shall be used by Merchant solely for Merchant own purposes and Platform does not convey any right, title or interest in the Services or Platform System to Merchant. Merchant right to use the Services shall terminate upon any termination of this Agreement or any suspension or termination of the supply of the Services to Merchant.
- Merchant shall immediately notify Platform of any errors by Platform or Merchant in the supply or use of the Services. Where practicable, Platform shall use commercially reasonable efforts to investigate errors, but makes no representation as to its ability to correct the error. Merchant shall provide Platform with any information necessary to investigate an error.
2. Platform Account and Merchant ID.
Platform shall provide Merchant with a unique and private Account accessible through the Site. Platform shall provide Merchant with access codes for the Account. Merchant shall not disclose such codes or permit any third party to use them. Merchant has exclusive responsibility for the use of the Account. Platform will invite Merchant to enter certain preferences and specifications within the Dashboard or the Account that will apply to the Services; Merchant assumes exclusive responsibility for such selections even if they contain errors by Merchant or result in losses to Merchant. Any additional terms and conditions posted to the Site with respect to the Account or specific Services preferences selected by Merchant are incorporated herein by reference.
Except as required to deliver the Services or as otherwise required by law, Platform shall not grant any third party access to the Account.
Merchant shall notify Platform by email to [email protected] immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.
Upon Merchant’s request, Platform will also issue Merchant a Merchant ID associated with the Account (“Merchant ID”). Merchant may share their Merchant ID only with officers, directors, or other Merchant personnel that are directly employed or engaged by Merchant (“Merchant Personnel”) provided that Merchant binds such third parties to undertakings of confidentiality and to also honour the terms hereof. Merchant Personnel may only access and use the Services through the Merchant ID and in compliance with this Agreement; Merchant will not allow Merchant Personnel to share the Merchant ID with third parties. Merchant is responsible for all activity occurring under its Merchant ID whether by Merchant Personnel or otherwise. Platform reserves the right to replace the Merchant ID in its sole discretion for any reason or for no reason. Any Merchant Personnel who access the Services does so subject to this Agreement.
Merchant shall provide, at Merchant’s own expense, all necessary hardware, applications and internet connectivity necessary to access the Services. Merchant acknowledges that the internet can be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Merchant agrees that Platform is not responsible for any internet outages, unsecure WIFI or other connections or any other interference with Merchant’s use of or access to the Services or security breaches arising from any Merchant Device and Merchant waives any and all claims against Platform in connection therewith.
The following Persons are prohibited from using the Services: (i) Persons who are less than 18 years of age; (ii) Persons, or their Affiliates who have procured services from Platform and have been terminated for cause by Platform; and (iii) individual consumers. The Services may not be used for individual consumer use. Merchant must be a business, charitable organization or not-for-profit organization to use the Services. Platform reserves the right to decline to provide Services or terminate Services to one or another type of business; Platform shall notify Merchant of prohibited business types through the Site, the Account or the Dashboard. In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Services.
Limitations on Use
Merchant shall not itself and shall not permit any Merchant Personnel or any other third party to: (i) permit any party to access or use the Services other than the Merchant Personnel authorized under this Agreement; (ii) modify, adapt, alter or translate any software of Platform Systems underlying the Services; (iii) license, lease, rent, loan, distribute, or otherwise transfer the Services to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under Law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software or Platform Systems underlying the Services; (v) use or copy the any software or Platform Systems underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under Law, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Merchant may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Merchant is prohibited under Laws from using the Services, Merchant may not use them.
4. Platform Intellectual Property Rights.
Platform expressly reserves all Intellectual Property Rights in the Services, Platform System and all materials provided by Platform hereunder. All right, title and interest in the Services and all other materials provided by Platform hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with Platform or its licensors. Platform reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services without prior notice to Merchant or consent of Merchant. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“Platform Materials”), are protected by Intellectual Property Rights Laws of Canada, the United States, and other jurisdictions.
5. Merchant Data Consent.
Merchant hereby authorizes Platform to, directly or through third parties, make any inquiries and conduct any investigation to verify Merchant identity.
The Services require certain information concerning Merchant, including but not limited to Merchant name, address, phone number, email address, Bank Account information and other Third Party Servicer account information. Merchant agrees that all information it provides to Platform shall be complete and accurate and Merchant shall promptly correct any errors in the information provided to Platform.
Merchant hereby authorizes Platform and each Third Party Servicer to each obtain from the others and disclose to the others Merchant Data in so far as is necessary to supply their respective services either hereunder or under their respective Third Party Servicer Agreements.
Where required by Law, Platform will disclose Merchant Data to law enforcement agencies. Platform reserves the right to keep Merchant Data for the term of this Agreement and for five (5) years thereafter.
6. Merchant Data.
Merchant has sole responsibility for the accuracy, appropriateness and completeness of all Merchant Data. Platform will use the Merchant Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Merchant Data.
Platform will take reasonable steps to help protect Merchant Data. However, Merchant understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Platform reserves the right to cooperate with local, state and federal authorities in investigations of improper or unlawful activities and this may require the disclosure of Merchant’s personal information. Platform may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.
Merchant shall secure Merchant Data in its possession or under its control. Merchant assumes exclusive responsibility for ensuring the security of Merchant Device and the Data on it. Platform is not liable for the operation or failure of Merchant Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers. Merchant shall not operate Merchant Device in a manner that does not meet the applicable security requirements of Platform, indicated in the Account or on the Site, or those of Third Party Servicers.
Platform is not responsible for performing, and is not liable for any failure to perform, any back-up of any Merchant Data or other data provided, transmitted, processed, or stored by Merchant in or through the Services. It is Merchant’s responsibility to back-up onto a Merchant Device all Merchant Data, including all data and records that Merchant submits to Platform.
Platform shall disclose Merchant Data to those representatives of Merchant identified by Merchant for such purposes and also to such Third Party Servicers as Merchant has selected. Platform has no liability for any collection, processing, storage, use or disclosure of Merchant Data by any Third Party Servicer or any other third party. Platform reserves the right to decline to share Merchant Data with any third party where Platform believes that such sharing may expose Merchant or Platform to excessive security, financial or reputational risk, provided however that Platform shall never be liable for any act or omission of any third party with respect to Merchant Data or otherwise. Platform makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Merchant Data.
In the event that Merchant provides Platform any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), Merchant agrees that Platform may use the Feedback to modify the Services and that Merchant will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Merchant hereby grants Platform a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Merchant provides the Feedback on the Services or through any other method of communication with Platform.
Merchant shall not take possession of or enter into the Account any data: (i) that Merchant does not have the lawful right to copy, transmit, distribute, and display (including any Merchant Data that would violate any confidentiality or fiduciary obligations that Merchant might have with respect to the Merchant Data); (ii) for which Merchant does not have the consent or permission from the owner of any personally identifiable information contained in the Merchant Data; (iii) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or violates any privacy rights of any third party; (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any Laws or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
The Services may be integrated with Third Party Servicers that are customer-relationship-management platforms (“CRM Platforms”). Merchant is responsible for all content collected, produced, stored or distributed via any CRM Platform; Merchant shall perform in compliance with all terms applicable between Merchant and each CRM Platform.
Merchant shall defend, indemnify, and hold harmless Platform, its employees, officers, directors Affiliates, suppliers, licensors, Third Party Servicers and other customers against any and all liability including damages, recoveries, deficiencies, interest, penalties, losses and reasonable attorney’s fees arising out of or relating to: (i) any breach of the terms hereof; (ii) any breach of a Third Party Servicer Agreement; (iii) any violation of any Laws; (iv) any use of Merchant Data by Merchant or a Third Party Servicer or other third party; (v) Merchant use of the Services, including in combination with any third party service; (vi) any Transaction; (vii) any act or omission of any Third Party Servicer or Client; (viii) costs incurred by Platform enforcing the terms hereof or responding to any subpoena relating to Merchant, Merchant Data or a Third Party Servicer; (ix) any claim by a governmental taxing authority; or (x) any dispute between Merchant and any third party or Merchant Personnel.
8. Term, Termination and Suspension
The term of this Agreement (“Term”) shall begin as of when Merchant accepts this Agreement, completes the Application or obtains an Account and shall continue on a month-to-month basis until terminated in accordance with the terms hereof.
Either party may terminate this Agreement at any time for any reason or for no reason. Merchant may terminate by closing their Account or such other means as the Services may provide. Platform may terminate this Agreement by notice to Merchant through the Account, by email to the contact information provided in the Dashboard or by other electronic notice to other contact information provided by Merchant to Platform.
Platform may, at its discretion, suspend Merchant access to or otherwise modify, the Services and any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, Platform’s internet network; (ii) comply with any Law; (iii) otherwise protect Platform from potential legal liability or harm to its reputation or business; or (iv) because Platform has opted to change the Services. Platform will use commercially reasonable efforts to notify Merchant of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this Agreement will be construed to limit Platform’s actions or remedies or act as a waiver of Platform’s rights in any way with respect to any of the foregoing activities. Platform will not be responsible for any loss or damages incurred by Merchant as a result of any termination or suspension of access to or use of the Services.
9. Merchant Support.
Platform will use commercially reasonable efforts to provide Merchant with technical support services relating to the Services via its technical support website, email, or telephone.
Platform may update the Services in its sole discretion which updates may alter, add or remove functionality of the Services. Platform may also, from time to time, schedule downtime for maintenance and upgrades to the Services.
Access to the Services may require Merchant to pay Fees, as may be further described in the Account or otherwise on the Site, the Dashboard or in the Account. All Fees are in Canadian dollars and are non-refundable, unless otherwise provided herein. Platform reserves the right to amend the Fees by posting new Fees on the Site, in the Dashboard or in the Account; such changes shall take effect within thirty (30) days unless accepted by Merchant earlier or if Merchant does not close their Account within such delay.
Merchant shall authorize Platform to collect payment of Fees from a credit card, debit card or other means of payment; Merchant authorizes Platform to charge all Fees and other amounts owing hereunder from such payment method. If Merchant pays any Fees with a credit card, Platform may seek pre-authorization of Merchant’s credit card account prior to Merchant’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Merchant’s purchase.
The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Merchant activates or updates recurring payments through the Services, Merchant authorizes Platform to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Merchant’s account, all accrued sums on or before the payment due date for the accrued sums. If Merchant uses the Services to updates or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.
Without limitation, Platform reserves the right to suspend the Services until all Fees or other amounts owing hereunder are paid in full or terminate this Agreement for late payment.
Fees quoted do not include, and Merchant shall hold Platform harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Platform.
PRE-AUTHORIZED PAYMENT PLAN (“PAD”) AUTHORIZATION
Merchant hereby authorizes Platform to draw on the account maintained by Merchant at the financial institution disclosed on Merchant Bank Account pursuant to this Agreement for the purpose of paying all regular payments and all other amounts owing by Merchant to Platform pursuant to the terms of this Agreement, including without limitation, charges, fees and all other amounts owing in the event of a default under the Agreement and for paying all amounts owing under any other agreement with Platform or any of its affiliates for any related services (the “PAD Authorization”).
For debits other than regular recurring debits and/or one time payments owing in connection with the Agreement, Merchant understands that Platform will obtain Merchant’s authorization prior to initiating any such debit.
In particular, Merchant further agrees that if any payment is dishonoured by the Bank for any reason, then Platform shall be entitled to issue another debit in substitution for the dishonoured debit. Merchant acknowledges that this PAD Authorization is provided for the benefit of Platform and the Bank and is provided in consideration of the Bank agreeing to process debits against Merchant’s Merchant Bank Account in accordance with the rules of the Canadian Payments Payment Network.
Merchant shall be charged a fee for each credit and debit, that cannot be processed and all subsequent funding may be suspended until Merchant either (i) notifies Platform that credits and debits can be processed or (ii) a new Authorization is signed by Merchant. Bank must be able to process or accept credits and debits electronically.
Bank’s treatment of each debit shall be the same as if Merchant had issued its cheque authorizing the Bank to pay as indicated and to debit the amount specified to Merchant’s Merchant Bank Account. Merchant confirms that this means, in part, that the Bank is not required to verify that a pre-authorized debit has been issued in accordance with Merchant’s instructions or that some pre-condition to payment has been met or satisfied.
his PAD Authorization may be cancelled at any time by written notice by Merchant to Platform which notice shall be effective five business days after receipt. To obtain a sample cancellation form, or for more information on the right to cancel this PAD Authorization, Merchant understands that Merchant may contact Bank or visit www.cdnpay.ca. This PAD Authorization applies only to the method of payment and Merchant agrees that revocation of this PAD Authorization does not terminate or otherwise having any bearing on the Agreement. This PAD Authorization may be discontinued at any time by Platform without notice. Delivery of this PAD Authorization, to Platform, constitutes delivery by Merchant to Bank. Merchant confirms that the debits authorized hereunder are for business purposes. Merchant hereby waives the right to receive any notice, written or otherwise, from Platform of the amount to be debited and the date(s) on which such debits are to be processed, as well as notice of any and all future changes to the amounts or payment dates.
Merchant hereby waives the “Pre-notification/Confirmation” requirements set out in Appendix II of Rule H1 (“Pre-authorized Debits”) of the Canadian Payments Payment Network.
Merchant understands that Merchant has recourse rights if any debit does not comply with this PAD Authorization. For example, Merchant has the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD Authorization. To obtain more information on Merchant’s recourse rights, Merchant may contact the Bank or visit www.cdnpay.ca.
Merchant consents to the disclosure of any relevant information contained in the Agreement and this PAD Authorization to the financial institution for purposes of the Automatic Debit Program.
Platform may assign this PAD Authorization, whether directly or indirectly, by operation of law, change of control, or otherwise, by providing at least 10 days prior notice to Merchant.
All capitalized terms used in this PAD Authorization and not otherwise defined shall have the meaning set out in the Agreement.
Merchant understands that Merchant may contact Platform at the address or phone number on its Site.
In the event of termination of the Services for any reason except for Merchant’s breach of this Agreement, Platform may provide Merchant with a refund of any pre-paid, but unused Fees related to such Services, subject to the following: (i) no refund shall be paid for the current month’s Services, regardless of the day on which Merchant cancels the Services; (ii) Platform will retain and not be obligated to refund any prepaid Fees up to and including the amount of Fees Merchant would have been required under this Agreement to pay for Merchant’s use of the Services for the two month period following the effective date of the termination of the Services. Merchant is not entitled to any refund for Platform’s termination of the Services based upon Merchant’s breach. If Merchant purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.
11. Confidential Information.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Merchant Data shall, without limitation, be Merchant Confidential Information. Platform Data shall, without limitation, be Platform Confidential Information.
12. Merchant Representations and Warranties.
Merchant represents and warrants to Platform that:
12.1 Merchant has the legal authority to bind Merchant organization to this Agreement and to perform hereunder and under each Third Party Servicer Agreement to which Merchant is a party. Merchant is the exclusive owner of the Account and is not operating the Account on behalf of any third party.
12.2 Merchant has the legal capacity to enter into this Agreement and perform Merchant obligations hereunder.
12.3 Merchant is a business, charitable organization or not-for-profit organization and shall use the Services for only business purposes and not for individual consumer purposes.
12.4 Merchant shall immediately advise Platform of defects in the Services or any claim or threatened claim against Platform. Merchant shall immediately notify Platform of any defects in a Product for which a Third Party Servicer has been used as a payment method.
12.5 Merchant use of the Services conforms to all Laws and the terms of this Agreement.
13. No Warranties by Platform.
Content; Third Party Servicers
Content from Third Party Servicers, other users, suppliers, advertisers, and other third parties may be made available to Merchant through the Services. Platform does not control such content; Merchant agrees that Platform is not responsible for any such content. Platform does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content and Platform assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Platform. Platform is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Merchant understands that by using the Services, Merchant may be exposed to third-party websites that Merchant finds offensive, indecent or otherwise objectionable. Platform makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services including but not limited to Third Party Servicer Services. Platform provides these links for Merchant’s convenience only and does not control such third parties. Platform’s inclusion of links to such links or integrations does not imply any endorsement of the materials on such third party services or any association with their operators. The Services may contain links to sites that are operated by Platform but which operate under different terms. It is Merchant’s responsibility to review the privacy policies and terms and conditions of any other site Merchant visits. Customer AGREES THAT IN NO EVENT WILL Platform BE LIABLE TO Customer IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Platform HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Platform DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY Customer FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE Platform ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. Customer ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM Customer’s USE OF OR ACCESS TO THE SERVICES, Customer’s DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. Customer UNDERSTANDS AND AGREES THAT Customer USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT Customer’s OWN DISCRETION AND RISK, AND THAT Customer IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO Customer’s PROPERTY (INCLUDING Customer’s COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND Customer MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
14. Limitation of Liability.
IN NO EVENT WILL Platform BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL Platform’S SUPPLIERS OR THIRD PARTY SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
IN NO EVENT SHALL Platform BE LIABLE TO Customer FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL Platform BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
TO THE EXTENT THAT PLATFORM MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF PLATFORM’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Platform shall not be liable for any claims, losses or liabilities related to any Product, Client or Third Party Servicer.
Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:
For Platform, addressed to Merchant Care at: (i) 1310 Greene Avenue, Suite 650, Westmount, Quebec, H3Z 2B2 Canada; or (ii) [email protected]; and
For Merchant, to the addresses or email address provided by Merchant on Application (as such address or email address may be updated by Merchant from time to time in accordance with this Agreement).
Platform may change its contact information by giving notice of such change to the Merchant. Merchant may change its contact information by using the currently available interfaces on Platform’s website. For contractual purposes, Merchant (i) consents to receive communications from Platform in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Platform provides to Merchant electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Merchant’s consent to receive Communications and do business electronically, and Platform’s agreement to do so, applies to all of Merchant’s interactions and transactions with Platform. The foregoing does not affect Merchant’s non-waivable rights. If Merchant withdraws such consent, from that time forward, Merchant must stop using the Services. The withdrawal of Merchant’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Platform prior to the time Merchant withdraws its consent.
By providing Platform with Merchant’s mobile telephone number, Merchant consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Services. While Platform does not charge a fee for text messages, Merchant’s carrier may charge standard messaging, data, and other fees. Merchant is responsible for these charges. Platform may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Platform is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
16. Governing Law and Arbitration.
PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH Customer MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH Platform. If Merchant has a dispute with Platform, Platform will first seek to resolve such a dispute through our support team.
If any dispute occurs between the parties relating to the application, interpretation, implementation or validity of this Agreement, the Parties agree to seek to resolve the dispute or controversy through mediation with ADR Chambers before pursuing any other proceedings. Nothing herein shall preclude any Party from seeking injunctive relief in the event that the Party perceives that without such injunctive relief, serious harm may be done to the party. Any Party to the dispute may serve notice on the others of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the Parties or, if the Parties cannot agree within five days after receipt of the notice of intention to mediate, the mediator will be appointed by ADR Chambers. The mediation will be held at Montreal, Quebec, Canada. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the Parties. If the dispute has not been resolved within thirty days of the notice of desire to mediate, any Party may terminate the mediation and proceed to arbitration as set out below.
Subject to the mediation provisions set out above, if any dispute or controversy occurs between the Parties relating to the interpretation or implementation of any of the provisions of this Agreement, the dispute will be resolved by arbitration at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator who is a practicing commercial lawyer. The arbitration shall be held in Montreal, Quebec, Canada in the English language. The arbitration shall proceed in accordance with the Article 620 and following of Code of Civil Procedure of Quebec. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties.
Jurisdiction/Venue; Governing Law. this Agreement shall be governed by and construed in accordance with the laws of the province where the ISO has its address, as indicated above or on the Site (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in the court of competent jurisdiction closest to the address of the ISO indicated above. Subject to the arbitration provision set out above, each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.
NOTICE: BOTH Customer AND Platform AGREE TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS AGREEMENT, BOTH Customer AND Platform ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR PROVINCIAL LAW. BOTH Customer AND Platform CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
17. General Provisions.
17.1 E-SIGN CONSENT. Merchant agrees that this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) your electronic signature is associated with the Agreement and related documents, (2) you consent and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). You agree (i) that the Agreement and related documents shall be effective by electronic means (ii) to be bound by the terms and conditions of this Agreement and related documents and (iii) that you have the ability to print or otherwise store the Agreement and related documents.
17.2 Assignment. Merchant may not assign this Agreement or any of its rights or obligations hereunder to any third party without prior written consent of Platform. Any assignment in violation of this section shall be void. Platform may assign this Agreement without restriction and without any notice to Merchant. The terms of this Agreement shall be binding upon permitted successors and assigns. Merchant agrees that on a sale of all or substantively all of the assets of Platform, Platform may include in the sale the copy of Merchant’s payment method (e.g. credit card information) used to pay Fees hereunder.
17.3 Right to List as a Merchant. Merchant agrees that Platform may utilize Merchant’s entity name in listings of current customers. Use of Merchant’s name in any other marketing materials or press announcements will be submitted to Merchant in advance for approval, and such approval will not be unreasonably withheld.
17.4 Compliance with Export Regulations. Merchant has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Platform harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Merchant shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
17.5 European Union Residents. If Merchant resides in the European Union (EU) or if any transfer of information between Merchant and the Services is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Merchant consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Services.
17.6 Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
17.7 Force Majeure. Merchant acknowledges and understands that if Platform is unable to provide Services as a result of a force majeure event Platform will not be in breach of this Agreement and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Platform.
17.8 Severable. NOTHING IN THIS AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO Customer. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.
17.9 Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law in one instance shall not preclude enforcement thereof on future occasions.
17.10 Independent Contractors. Merchant’s relationship to Platform is that of an independent contractor, and neither Party is an agent or partner of the other. Merchant will not have, and will not represent to any third party that it has, any authority to act on behalf of Platform. ISO reserves the right to retain a third party to perform its obligations under this Agreement.
17.12 Amendments. Platform reserves the right to change this Agreement at any time and from time to time upon notice by posting revisions to this Agreement (including the description of the Services) on the Site. Continued use of the Services after Merchant become aware of any such changes shall constitute Merchant’s consent to such changes. Merchant is responsible for regularly reviewing the most current version of this Agreement which is available on Platform’s website.
17.13 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
17.14 Survival. Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties (except for Merchant’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information. The following Sections will also survive expiration or termination of this Agreement for any reason: the introductory paragraph, Sections 3 Limitations, 4 Platform Intellectual Property Rights, 5 Merchant Data Consent, 7 Indemnity, 10 Fees, 11 Confidential Information, 12 Merchant Warranties, 13 No Warranties by Platform, 14 Limitation of Liability, 15 Notices, 16 Governing Law and Arbitration, 17 General Provisions and 18 Glossary.
The following words used in this Agreement are defined as follows:
Account means an account made available to Merchant through the Dashboard which Merchant can transmit instructions or receive information in relation to the Services.
Affiliate means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.
Dashboard means an application available for download or online use through which Merchant can access the Services.
Application means the on-line sign-up process on Platform’s website or the paper application completed by Merchant when applying for the Services all of which is incorporated herein by reference.
Platform Data means information concerning Services or provided to Merchant by Platform through the Account or otherwise.
Platform System means a cloud-based system operated by Platform that allows Merchant to access Merchant Account and initiate Transactions.
Client means a client or customer of Merchant.
Confidential Information means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by Law.
Merchant Bank Account means a bank account of the Merchant identified by Merchant as being an account from which Platform may debit Fees or other amounts owing hereunder.
Merchant Data means any and all non-public identifiable personal information of Merchants.
Merchant Device means computer system, tablet or phone used by Merchant to access the Services or manage Data or Merchant business.
Merchant means you and if you are using the Services on behalf of a company, entity, or organization, the entity, partnership or organization, then ‘you’ also includes such entity.
Data means Merchant Data or Platform Data.
Fees means fees payable by Merchant for use of the Services, as disclosed on the Site, the Dashboard or in the Account.
Intellectual Property Rights means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Laws shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
Party means either Merchant or Platform and “Parties” means both Merchant and Platform.
Person is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
Product means any product or service for sale or provided by Merchant or for which a Third Party Servicer is used to make payment or for which Services is used to assist in a payment.
Site has the meaning set out in the preamble hereof.
Term has the meaning set out in Section 8.
Third Party Servicer Agreement means an agreement between Merchant and a Third Party Servicer concerning the supply of Third Party Servicer Services to Merchant.
Third Party Servicer means a third party that has entered into Third Party Servicer Agreement with Merchant pursuant to which the Third Party Servicer provides Third Party Servicer Services to Merchant.
Third Party Servicer Services means the services of a Third Party Servicer provided pursuant to Third Party Servicer Agreement.
Transaction means sending or attempted sending of Data, by way of the Services, between any of Merchant, Platform and a Third Party Servicer as applicable.