AlphaPay – Merchant Services Agreement
STANDARD TERMS
These terms and conditions (the “Standard Terms”) and the following documents form the merchant agreement (the “Agreement”) entered into between Flash Pay Inc. DBA AlphaPay (“AlphaPay”, “we” and “our”) and the merchant identified in the Order Form – Merchant Services (“Client”, “you” and “your”):
- (a) Order Form – Merchant Services;
- (b) Information Summary Box;
- (c) Fee Disclosure Box;
- (d) Other Fees Disclosure Box;
- (e) all other documents referred to in these Standard Terms as being incorporated by reference and forming part of this Agreement; and
- (f) any other document or procedure we may provide or make available to you during the term of this Agreement that we indicate forms part of this Agreement.
1. DEFINITIONS
1.1 “Acceptance Testing”
has the meaning set out in section 4.3.
1.2 “Alipay Discovery Marketing Features”
means certain Alipay marketing features including “12% Off Event” (an incentive program where payers randomly receive discounts) and “Discovery Channel” (location-based services to attract nearby clients).
1.3 “Applicable Law”
means federal, provincial or local laws, treaties, rules, regulations, regulatory guidance, codes, standards, directives, policies, orders or determinations of (or agreements with), and mandatory written direction from (or agreements with), any foreign, federal, state, provincial or local government agency or other government or regulatory authority having jurisdiction over any of the Services to be provided hereunder, AlphaPay or Client, including, without limitation, Privacy Laws, in each case, as they may be amended and in effect from time to time.
1.4 “Batch Close”
means the manual or automated process by which Transaction Records are confirmed to initiate settlement. AlphaPay will do the Batch Close automatically 12AM Pacific Time.
1.5 “Business Day”
means any day, other than a Saturday, Sunday or a day on which Canadian chartered banks are generally closed for business in the province or territory applicable to the Client’s settlement account; provided that if a Network, settlement rail or upstream provider is not operating due to a non-Canadian holiday or closure, the related processing or settlement timing may be deferred accordingly.
1.6 “Business Hours”
means 9:00 a.m. to 8:30 p.m. Eastern Time, or such other standard support window as AlphaPay may publish on prior notice.
1.7 “Payment Method”
means any payment method accepted by AlphaPay under this Agreement, including wallet-based, QR-based, card-based or other supported payment methods for which pricing is set out in the Agreement.
1.8 “Payer”
means, as the context requires, a person who uses or is authorized to use the applicable Payment Method or the account established in connection with that Payment Method.
1.9 “Chargeback”
means AlphaPay’s right to reverse or return a Transaction and be reimbursed for the amount of the Transaction by Client out of the Nominated Bank Account or otherwise, as permitted by this Agreement.
1.10 “Code of Conduct”
means the Code of Conduct for the Payment Card Industry in Canada and any applicable FCAC guidance or requirements relating thereto, but solely to the extent applicable to the relevant payment card network, participant, Licensed Technology, Service, Transaction type or other payment method involved.
1.11 “Commencement Date”
has the meaning set out in the Order Form.
1.12 “Confidential Information”
has the meaning set out in section 7.1.
1.13 “Data Incident”
means any alleged or actual compromise, unauthorized access, disclosure, theft, or unauthorized use of payment method, payer or transaction information, regardless of cause, including, without limitation, a breach of or intrusion into any system, or failure, malfunction, inadequacy, or error affecting any server, wherever located, or hardware or software of any system, through which such information resides, passes through, and/or could have been compromised.
1.14 “Emergency Maintenance”
means unscheduled maintenance required to resolve security-related or technical issues or other problems impacting the availability of the Service.
1.15 “Fee”
has the meaning set out in section 6.1.
1.16 “Fee Change”
has the meaning set out in section 10.4.
1.17 “Fine”
has the meaning set out in section 4.2.
1.18 “Initial Term”
has the meaning set out in section 10.1.
1.19 “Intellectual Property Rights”
means any intellectual property or proprietary rights, including, but not limited to, rights protecting works of authorship (copyright), trademarks (trade names and service marks), inventions (patents), data, know-how and trade secrets, recognized in any country or jurisdiction in the world.
1.20 “Licensed Technology”
means, collectively, the functionality provided by the WeChat Pay payment technology that is owned by Tencent Holdings Limited, the Alipay payment technology that is owned by Alipay.com Co., Ltd., the Alipay+ services owned by AlipayConnect Pte. Ltd., and the UnionPay payment technology that is owned by UnionPay International Co., Ltd., each of which are licensed for use by AlphaPay to provide the Services.
1.21 “Marketing Features”
means certain marketing features including, but not limited to, WeChat Pay Marketing Features and Alipay Discovery Marketing Features that AlphaPay may, from time to time, and, in each case, in its discretion, acting reasonably and subject to the availability of such features by providers, make available to Client hereunder.
1.22 “Network”
means any network, card association or organization that is identified in the Fee Disclosure Box, the Other Fees Disclosure Box, or is otherwise referenced in this Agreement and in which Client participates hereunder.
1.23 “Nominated Bank Account”
means the deposit account initially designated in the Order Form (and any other deposit account that Client may designate from time to time) that is held in the name of Client at a financial institution acceptable to AlphaPay, which AlphaPay can access and use for the purposes of settling Transactions and making payments due by Client or AlphaPay under this Agreement, in accordance with the PAD Authorization set out in section 5.3.
1.24 “Operating Regulations”
means the by-laws, operating regulations and/or all other rules, policies, procedures or guidelines of any Network, as in effect from time to time.
1.25 “Personal Information”
means information about an identifiable individual and includes, without limitation, any information that is “personal information” within the meaning of one or more Privacy Laws.
1.26 “Privacy Laws”
means the Personal Information Protection and Electronic Documents Act (Canada), as amended or supplemented from time to time, and any other Canadian federal or provincial legislation now in force or that may in the future come into force governing the collection, use, disclosure and protection of personal information in the private sector applicable to either party, the Services or the activities contemplated under this Agreement.
1.27 “Reduction Retention”
has the meaning set out in section 10.4.
1.28 “Renewal Term”
has the meaning set out in section 10.1.
1.29 “Scheduled Maintenance”
means system, software or Service maintenance that is scheduled to fix non-critical errors and implement system, software or Service changes for which AlphaPay will provide Client at least seven (7) days’ prior written notice.
1.30 “Services”
means any and all services provided by AlphaPay pursuant to this Agreement, as described in section 2.1.
1.31 “SLA”
means the Service Level Agreement separately provided to the Client by AlphaPay, as described in section 3.1, as AlphaPay may amend from time to time upon prior notice to Client, acting reasonably and provided that no such amendment shall materially reduce the core service levels without any rights required by Applicable Law.
1.32 “Surcharge”
means, in respect of a payment card transaction, imposing any fee or charge, other than a discount for different methods of payment or any other pricing practice permitted by Applicable Law or applicable Network rules.
1.33 “Term”
has the meaning set out in section 10.1.
1.34 “Third Party Facilities”
has the meaning set out in section 11.2.
1.35 “Transaction”
means the sale of goods or provision of services by Client in respect of which a Payment Method is used for payment, or a refund of such payment.
1.36 “WeChat Pay Marketing Features”
means certain WeChat marketing features including “WeChat Lucky Money” (an incentive program where payers randomly receive cashback) and “WeChat Moment” (social media advertising aimed at enhancing a Client’s brand awareness).
2. SCOPE OF SERVICES AND SET UP
2.1 Services
Subject to and in accordance with the terms of this Agreement, AlphaPay agrees to:
- (a) provide Client with a payment integration system that utilizes the functionality provided by the Licensed Technology to process payments from users of the Licensed Technology and settle resulting funds to Client in accordance with the Settlement Terms set out in Exhibit A, with any applicable currency conversion being determined by the relevant payment provider’s official exchange-rate, quotation or settlement interface rather than by AlphaPay; and
- (b) allow Client to access AlphaPay’s online portal, which provides merchant management services and facilitates Transaction management, reporting and transactional analytics.
The parties acknowledge that references in this Agreement to the Code of Conduct, payment card network rules, interchange, surcharging, fee-change rights, complaint-handling obligations or other payment-card-specific concepts apply only to the extent the relevant Service or Transaction is actually subject to a payment card network or other rule set that gives rise to such requirement, and do not apply merely because other Services offered under this Agreement may be subject to different payment method rules.
2.2 Marketing Features
AlphaPay may, from time to time and subject to availability from applicable providers, offer Client the opportunity to access certain Marketing Features. Client acknowledges that any acceptance or use of any Marketing Features will be subject to additional terms and conditions disclosed by AlphaPay at the time of the applicable offer.
2.3 Settlement of Funds
The parties agree that settlement of funds and refunds shall occur in accordance with the terms and process set out in Exhibit A. For greater certainty, any settlement timing communicated by AlphaPay, including any standard T+2 settlement timing, is a target settlement timeframe only and remains subject to provider processing cycles, banking cut-off times, foreign exchange processing, compliance review, fraud review, reserves, holds, reversals, sanctions screening, legal process, system availability and other factors beyond AlphaPay’s reasonable control.
2.4 Foreign Currency Conversion Process
AlphaPay does not provide currency conversion services and does not set or control the exchange rate applicable to a Transaction. Where a Transaction involves currency conversion, the applicable exchange rate, quotation timing and settlement methodology shall be those made available by the relevant payment provider, including WeChat Pay, Alipay or UnionPay, through its official exchange-rate interface, quotation mechanism or settlement process, in accordance with its applicable rules. Any related network, scheme, cross-border or analogous fee may be charged or passed through to Client only if disclosed in the Agreement or otherwise permitted by Applicable Law. AlphaPay is not liable for exchange-rate movements or provider-determined conversion outcomes except to the extent directly caused by AlphaPay’s breach of this Agreement, gross negligence or wilful misconduct.
2.5 Non-Exclusivity
Client acknowledges that AlphaPay is providing the Services on a non-exclusive basis and that AlphaPay may provide the same or similar services to others, including other merchants.
3. SERVICE LEVEL AGREEMENT
3.1 Uptime Commitment – Payment Interface
AlphaPay will use commercially reasonable efforts to achieve an average minimum uptime target of 99.9% (measured on a quarterly basis) for the Payment Interface to receive Transaction requests, excluding from the uptime calculation downtime caused by acts or omissions of the Client or acquirers, changes implemented at a specific Client request, general internet failures, failures of individual payment methods, Third Party Facilities or force majeure.
The Client is obliged to immediately notify AlphaPay of any downtime of the Payment Interface that it experiences and to provide all reasonably requested cooperation in investigating and resolving any such downtime.
AlphaPay uses all reasonable efforts to avoid having to take the Payment Interface offline for executing planned maintenance. Should, under exceptional circumstances, such maintenance nevertheless prove necessary, AlphaPay will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected Transactions. Should, under emergency situations, unplanned maintenance be necessary to the Payment Interface necessitating it to be taken offline, AlphaPay will use all available resources to keep the required downtime to the absolute minimum.
3.2 Security and Compliance
AlphaPay commits to use commercially reasonable efforts to provide a secure payment environment and to maintain PCI DSS compliance to the extent applicable to the Services and AlphaPay’s environment.
3.3 Customer Support
AlphaPay shall, as part of the provision of AlphaPay payment services, provide to the Client (at no additional cost to the Client) standard customer support during AlphaPay’s normal Business Hours.
4. CLIENT OBLIGATIONS
4.1 Interconnection
Client acknowledges that:
- (a) certain of Client’s payment systems must be connected to AlphaPay’s systems in order for AlphaPay to provide the Services; and
- (b) unless and until Client’s and AlphaPay’s payment systems are connected and such functionality has been established, AlphaPay shall be under no obligation to provide the Services.
4.2 Initial Set-Up Process
Client agrees to ensure that it meets, and continues to meet, all pre-requisites or conditions necessary for AlphaPay to provide the Services, including access to web-based gateway APIs, point-of-sale payment terminals or equipment and processing and settlement capabilities for applicable currencies.
Client is responsible for all direct and indirect costs in connection with and related to the initial set-up and any subsequent programming efforts affecting the Services.
4.3 Acceptance Testing
During the Acceptance Testing phase and for a reasonable period after Acceptance Testing is completed, to the extent Client encounters any malfunction, defect or suspected error in the online gateway application, AlphaPay agrees to co-operate with, and will use reasonable efforts to, correct any such malfunction, defect or suspected errors to facilitate Client’s acceptance of the Services, provided that AlphaPay shall have no obligation to rectify any defect or fault caused or contributed to by the acts or omissions of the Client or faults in telecommunication services provided by third-party suppliers not engaged by AlphaPay.
4.4 Client System Changes
Client agrees to notify AlphaPay of any Client system changes that might impact the Services and to allow AlphaPay to perform any necessary system testing to ensure the full integrity of the Services is maintained.
4.5 Client Obligations
Throughout the Term, Client agrees to:
- (a) use the Services solely for their intended purpose and in accordance with any directions or documentation provided by AlphaPay;
- (b) not knowingly itself use or otherwise permit the Services to be used in violation of Applicable Law;
- (c) promptly notify AlphaPay upon becoming aware of any such breach or non-compliance; and
- (d) provide reasonable co-operation requested by AlphaPay in connection with security, compliance and operational support.
4.6 Client Restrictions
Client shall not:
- (a) employ any reverse engineering method aimed at deciphering any computer system, software or procedures operated by AlphaPay;
- (b) alter or amend the original functions of software pertaining to the Services or add further functions to such software;
- (c) unreasonably delay any action, approval, direction, determination or decision reasonably required of Client under this Agreement;
- (d) engage in, procure, assist or allow any fraudulent or unauthorized use of the Services; or
- (e) engage in unlawful, harmful, threatening, defamatory, infringing, obscene, harassing or otherwise illegal activities.
4.7 Transaction Information
Client shall provide AlphaPay with complete and accurate Transaction information and agrees to collect, share and transmit Transaction information in a secure manner and in compliance with Privacy Laws. Client shall be solely responsible for the accuracy and completeness of all information and instructions furnished to AlphaPay in connection with the Services. Client acknowledges that AlphaPay may be required by law to retain metadata, information and other content in relation to the Client’s use of the Services and to provide details of Client’s use of the Services to government agencies and law enforcement authorities where legally required.
4.8 Representations and Warranties
Client represents and warrants that:
- (a) it has consulted with, or had the opportunity to seek, independent professional advice regarding this Agreement;
- (b) all information provided in connection with its request for Services is complete and accurate;
- (c) it is fully responsible and liable for the acts and omissions of its employees, consultants, contractors and other personnel; and
- (d) until AlphaPay is notified otherwise, the client contact specified in the Order Form is duly authorized to act for and on behalf of Client.
5. BANK ACCOUNT AND AUTHORIZATIONS
5.1 Nominated Bank Account
Client shall maintain the Nominated Bank Account in good standing and shall provide AlphaPay with at least seven (7) calendar days’ prior notice of any change to the Nominated Bank Account or related account details, where practicable, and shall promptly notify AlphaPay of any change to signing authority.
5.2 Settlement and Debits
Client authorizes AlphaPay to credit and, where permitted under this Agreement, debit the Nominated Bank Account for settlement amounts, Chargebacks, refunds, Fees, Fines, taxes and other amounts payable under this Agreement.
5.3 PAD Authorization
Client shall execute and deliver all pre-authorized debit, funds transfer or comparable authorizations reasonably required by AlphaPay to effect the settlement, Chargeback, refund, fee collection, adjustment and other payment mechanics contemplated by this Agreement. Client acknowledges and agrees that any such authorization may permit AlphaPay to debit the Nominated Bank Account for amounts owing by Client under this Agreement, including Fees, Chargebacks, refunds, adjustments, fines, taxes and other amounts payable hereunder, in accordance with Applicable Law and the applicable rules of Payments Canada and the relevant financial institution. To the extent reflected in any PAD authorization, Order Form or related mandate executed by Client and permitted by Applicable Law, Client may waive any pre-notification or confirmation requirement otherwise applicable to such debits.
6. FEES, CHARGES AND PAYMENTS
6.1 Fees
Client shall pay the fees and charges set out in the Agreement, including the Order Form, Fee Disclosure Box and Other Fees Disclosure Box. AlphaPay may revise Fees in accordance with section 10.4 and Applicable Law.
6.2 Third Party Assessments
Notwithstanding any other provision in this Agreement, Client agrees to pay any fine, fee, penalty or other assessment imposed on Client and/or AlphaPay in connection with this Agreement by any third party or otherwise assessed in relation to Client’s acts or omissions in connection with the Services.
6.3 Payables
Any Fee, charge, adjustment, Fine, applicable taxes, any amount of any Chargeback or any refund issued by Client and any other amount that Client owes to AlphaPay under this Agreement is an amount payable by Client to AlphaPay on demand.
6.4 Set-off
Any amounts due and owing to AlphaPay by Client under this Agreement may, acting reasonably, be set off against any amounts that AlphaPay owes Client under this Agreement and may be debited from the Nominated Bank Account. AlphaPay may exercise such set-off without prior notice where reasonably necessary to protect against loss, Chargebacks, fraud, compliance risk, reversals or other urgent risk events, and otherwise will provide notice to Client within a reasonable time.
6.5 Interest on Unpaid Amounts
Any amounts owing by Client hereunder shall be subject to interest at an annual rate equal to the greater of:
- (a) fifteen percent (15%) per annum; or
- (b) the maximum interest rate permitted under Applicable Law.
Client shall also be liable to pay to AlphaPay all reasonable costs incurred in recovering unpaid fees, including legal fees and expenses.
6.6 Taxes
All Fees and amounts owing under this Agreement are exclusive of taxes and any other government levies that may apply and may change from time to time. Client shall pay, or reimburse AlphaPay for, all taxes, duties, levies or charges of any kind imposed by any federal, provincial or local government entity on fees payable for the Services.
6.7 Additional Services
Any services requested by Client that are in addition to those set forth herein shall be charged to Client as an additional expense in accordance with AlphaPay’s then-current standard fees and/or hourly rates, as applicable.
7. CONFIDENTIALITY
7.1 Confidential Information
Each party has made and will continue to make available to the other information that is not generally known to the public and that at the time of disclosure is identified as, or would reasonably be understood to be, proprietary or confidential, including any budgets, client details, customer lists, data, designs, drawings, expertise, financials, formulae, functionality, intellectual property, inventions, methodologies, passwords, plans, policies, procedures, processes, production information, projections, software code, specifications, statistics, studies, supplier details, systems, web developments, written materials and the terms of this Agreement (“Confidential Information”).
7.2 Obligations
The receiving party will use the same care, discretion and security precautions to avoid disclosure, publication or dissemination of Confidential Information as it uses with its own similar information that it does not wish to disclose, but in no event less than a reasonable degree of care. The receiving party may disclose Confidential Information to its employees, contractors, consultants, auditors and affiliates on a need-to-know basis and only if they are under obligations of confidentiality substantially similar to those contained in this Agreement, or as required by law.
7.3 Exclusions
Confidential Information does not include information that becomes public through no fault of the receiving party, was lawfully known to the receiving party without restriction before disclosure, is independently developed without use of the disclosing party’s Confidential Information, or is lawfully received from a third party without duty of confidentiality.
8. INTELLECTUAL PROPERTY AND MARKETING
8.1 Marks and Licensed Technology
As between the parties and relevant third-party licensors, all rights, title and interest in the Licensed Technology, Marketing Features and all trademarks, service marks and other brand identifiers used in connection therewith remain with their respective owners. Client receives only the limited right to use the Services and any Marks expressly authorized by AlphaPay for the Term and subject to this Agreement.
8.2 Restrictions
Client shall not contest, attack or impair AlphaPay’s or any licensor’s rights in the Licensed Technology or Marks, nor do anything inconsistent with such rights.
8.3 Marketing Features
Any participation by Client in marketing, promotional or discovery features made available by AlphaPay or any provider shall be subject to the specific terms communicated at the time such features are offered.
9. REPRESENTATIONS, WARRANTIES AND TRANSACTIONS
9.1 Transaction Standards
Client represents and warrants that each Transaction submitted for processing is genuine, lawful, entered into by Client and the applicable payer, reflects a bona fide obligation for the amount of the Transaction, and is made in accordance with this Agreement, Operating Regulations and Applicable Law.
9.2 Delivery and Disputes
Except for delayed delivery expressly permitted by AlphaPay or a Network, the good or service relating to a Transaction shall have been delivered or provided at the time of purchase, and Client shall have no knowledge or notice that the Transaction is fraudulent, unauthorized or otherwise impaired in validity or collectability.
9.3 Compliance
Client shall comply with all Network rules, disclosure standards and applicable legal requirements relating to sales, refunds, charge disputes, privacy and consumer protection.
10. TERM AND TERMINATION
10.1 Term
The initial term of the Agreement will commence on the Commencement Date and will continue for the period set out in the Order Form (the “Initial Term”), unless terminated earlier in accordance with the Agreement. The Agreement shall automatically renew for successive renewal periods of up to six (6) months each (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless one party provides the other party with notice of non-renewal at least forty-five (45) calendar days prior to the end of the Initial Term or the applicable Renewal Term, or such other notice period as may be required under Applicable Law.
10.2 Mutual Termination Rights
Subject to any other legal or equitable rights or remedies to which either party may be entitled, either party may immediately terminate this Agreement without liability to the other in the event that the other party:
- (a) commits a material breach of this Agreement and, if such breach is remediable, fails to remedy it within thirty (30) calendar days after written notice;
- (b) suspends or threatens to suspend operations other than in the normal course of business or ceases operation without a successor; or
- (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party.
10.3 Termination by AlphaPay
AlphaPay may terminate this Agreement immediately, acting reasonably and in good faith and without compensation to Client, if:
- (a) AlphaPay loses access to, or the right to use, the Licensed Technology in a manner that prevents continued provision of the Services;
- (b) the number or amount of Chargebacks, potential Chargebacks, contingent Chargebacks or pending Chargebacks under this Agreement is excessive, Client Transactions are irregular, or other circumstances reasonably indicate increased financial, fraud, sanctions, compliance or security risk to AlphaPay, a Network, a provider or other stakeholders; or
- (c) AlphaPay reasonably determines that any statement made by Client to induce AlphaPay to enter into this Agreement was materially false when made or has become materially misleading.
10.4 Termination by Client
In the event AlphaPay notifies Client of:
- (a) any new or increased fee, subject to the notice requirements of Applicable Law and, solely for Services or Transactions to which the Code of Conduct applies, the Code of Conduct where applicable;
- (b) a material change to the terms of this Agreement;
- (c) the addition of any material terms to this Agreement, none of which were previously negotiated and agreed to by the parties; or
- (d) AlphaPay not passing through the full savings from a reduction in applicable payment card network interchange rates or other applicable payment card network core fees, where required by the Code of Conduct in respect of the relevant payment card Service or Transaction,
Client may terminate this Agreement without further cause or penalty by providing notice within the period required by Applicable Law, the Information Summary Box and, if applicable, the Code of Conduct. Client may also elect not to renew the Agreement by giving notice in accordance with section 10.1.
10.5 Early Termination
Client acknowledges and agrees to pay AlphaPay the amount of $2,000 CAD if Client terminates this Agreement prior to the expiration of the applicable term, except where Client has a penalty-free termination right under Applicable Law, section 10.4 or, solely for Services or Transactions to which the Code of Conduct applies, under the Code of Conduct. Client acknowledges that this amount represents a reasonable estimate of AlphaPay’s onboarding, implementation, underwriting, compliance, training, deployment and administrative costs arising from such early termination, and is not a penalty. Any recovery pursuant to this section shall in no way limit AlphaPay’s right to receive payments otherwise due under this Agreement.
10.6 Effect of Termination
Upon the termination of this Agreement for any reason, all amounts payable by Client under this Agreement will be immediately due and payable on demand, and Client shall return and make no further use of any materials, software, documentation and other relevant items belonging to AlphaPay.
10.7 Survival
The following sections, and any other section that must survive to satisfy its essential purpose, shall survive termination of this Agreement: sections 3, 4, 6, 7, 8, 9, 10, 11 and 12.
11. DISCLAIMERS AND LIMITATION OF LIABILITY
11.1 Disclaimer
Except as expressly set out in this Agreement, the Services are provided on an “as is” and “as available” basis, and AlphaPay disclaims all other representations, warranties and conditions, express, implied or statutory, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, to the maximum extent permitted by Applicable Law.
11.2 Third Party Facilities
AlphaPay shall not be liable for any delay, failure or interruption in the Services caused by third-party facilities, including telecommunications, internet, software, hardware or service providers not under AlphaPay’s reasonable control (“Third Party Facilities”).
11.3 No Consequential Loss
Neither party will be liable to the other for any lost profits, lost business, loss of goodwill, or any incidental, special, consequential or punitive damages (whether or not arising out of circumstances known or foreseeable by the other party) suffered by such party, its customers or any third party in connection with the Services provided hereunder or in connection with this Agreement, whether based in contract, tort (including negligence), statute or otherwise.
Nothing in the foregoing sentence is intended, and shall not be construed, to limit:
- (a) Client’s obligation to pay any Fees, Fines or other amounts due under this Agreement; or
- (b) Client’s obligation to indemnify AlphaPay pursuant to section 12.
In no event shall AlphaPay be liable for any damages or losses that are wholly or partially caused by any fraudulent act or omission by Client, or its employees, agents, or third parties engaged by Client, or that were caused due to errors in data or Transaction information provided by Client to AlphaPay, except with respect to sole proprietors in Quebec where such events result from AlphaPay’s acts or those of its representatives.
11.4 Limitation of Liability
FOR SOLE PROPRIETORS IN QUEBEC ONLY, THIS CLAUSE DOES NOT APPLY. Subject to Applicable Law, AlphaPay’s total liability related to or arising out of this Agreement shall in no event exceed the lesser of:
- (a) actual direct monetary damages incurred by Client; and
- (b) the greater of $10,000 CAD and the aggregate Fees paid or payable by Client to AlphaPay under this Agreement during the three (3) months immediately preceding the event giving rise to the claim.
For greater certainty, the foregoing cap shall not limit AlphaPay’s obligation to settle funds due to Client under this Agreement and shall not apply to liability arising from AlphaPay’s fraud, wilful misconduct or amounts expressly payable under this Agreement where such limitation is prohibited by Applicable Law.
11.5 Reduction of Liability
AlphaPay’s liability for any loss suffered or incurred by the Client hereunder, or in connection with this Agreement, shall be reduced to the extent that the loss was caused or contributed to by:
- (a) the acts or omissions of the Client or the Client’s personnel, including the failure to take reasonable steps to mitigate or avoid such loss;
- (b) the use of any Third Party Facilities; or
- (c) the acts, omissions or equipment of a third party.
12. INDEMNITY
Without limiting any other provision in this Agreement, Client shall indemnify, defend and hold harmless AlphaPay and its directors, officers, employees, agents, shareholders and related bodies corporate from and against all third-party claims, damages, liabilities, losses, settlements, judgments, costs and expenses of any kind (including reasonable legal fees on a solicitor-client basis) to the extent arising out of or relating to:
- (a) any breach of any representation, warranty, covenant or obligation of Client contained in this Agreement;
- (b) any Data Incident, infiltration, hack, breach or violation of Client’s systems or the systems of any third party engaged by Client; or
- (c) Client’s breach of Applicable Law,
in each case except to the extent finally determined to have been caused by AlphaPay’s gross negligence, wilful misconduct or fraud.
13. DISPUTE RESOLUTION
13.1 Complaints
In the event of any dispute between the parties relating to the Services or any matter set out in this Agreement, the parties shall make good-faith efforts to resolve the dispute pursuant to AlphaPay’s complaint-handling process, as posted on AlphaPay’s website, which process shall be clear, simple, transparent, easy to access and easy to understand. For complaints arising from Services or Transactions to which the Code of Conduct applies, AlphaPay will acknowledge receipt within five (5) Business Days and investigate and address the complaint within twenty (20) Business Days, subject to any extension permitted by Applicable Law. Nothing in this section restricts Client from contacting the Financial Consumer Agency of Canada for information or questions regarding the complaint-handling process under the Code of Conduct, where applicable.
13.2 Arbitration
FOR SOLE PROPRIETORS IN QUEBEC ONLY, THIS CLAUSE DOES NOT APPLY. If the process in section 13.1 is unsuccessful, the parties shall refer any dispute, controversy or claim arising out of or relating to this Agreement, including any question regarding its existence, interpretation, performance, breach or termination, to final and binding arbitration. The arbitration shall be conducted in Vancouver, British Columbia, in the English language, by a single arbitrator appointed in accordance with the applicable arbitration rules agreed by the parties or, failing agreement, by the arbitrator appointment procedures of the Arbitration Act (British Columbia). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Nothing in this section limits either party’s right to seek interim, interlocutory, injunctive or equitable relief from a court of competent jurisdiction.
13.3 Injunctive Relief
Notwithstanding sections 13.1 and 13.2, either party may apply to any court of competent jurisdiction for injunctive or equitable relief in regard to any breach or threatened breach of this Agreement.
14. GENERAL
14.1 Costs and Expenses
Except as otherwise provided herein, each party shall bear its own costs and expenses incurred in connection with performing its obligations under this Agreement including, but not limited to, all fees and expenses of professional advisors.
14.2 Provision of Information
Client agrees to provide AlphaPay information relevant to the relationship between the parties that AlphaPay reasonably requires to provide the Services or in connection with any periodic or other review of the Agreement, including any financial information or other documentation relating to Client’s business or this Agreement that AlphaPay may require from Client from time to time to address reporting, record-keeping, client identification, sanctions screening or other legal or regulatory requirements.
14.3 Notices
Unless specified otherwise herein, all notices, requests, demands and other communications (“Notices”) required or permitted to be delivered hereunder shall be in writing to be effective and shall be deemed to be delivered and received:
- (a) if personally delivered or if delivered by facsimile, email or courier service, when actually received by the party to whom notice is sent; or
- (b) if delivered by mail (whether actually received or not), at the close of business on the third (3rd) Business Day following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party, at the address of such party as set out in the Order Form (or such other address as such party may designate by written notice to the other party in accordance herewith).
14.4 Choice of Law
This Agreement will be governed by and construed in accordance with the laws in force in the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of law principles, except for Services provided to sole proprietors who are residents of Quebec, in which case the laws of Quebec and the federal laws of Canada applicable therein will govern to the extent required by Applicable Law. Subject to section 13.2, the parties attorn to the non-exclusive jurisdiction of the courts of British Columbia for the purpose of obtaining interim, interlocutory, injunctive or equitable relief, or for recognizing and enforcing any arbitral award.
14.5 Inurement
This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
14.6 Assignment
Client may not assign, transfer, novate, subcontract, delegate or otherwise dispose of this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of AlphaPay. Any purported assignment, transfer, novation, subcontract, delegation or other disposition by Client in breach of this Section shall be null and void. Notwithstanding anything to the contrary in this Agreement, AlphaPay may assign, transfer or novate this Agreement, in whole or in part, to any affiliate, successor, acquirer, payment processor, payment service provider or financial institution without the Client’s consent, upon notice to the Client. For greater certainty, any such assignment, transfer or novation by AlphaPay shall not invalidate this Agreement, and Client shall continue to be bound by this Agreement in favour of the applicable assignee, transferee or novatee.
14.7 Entire Agreement
This Agreement (including all schedules, exhibits and attachments hereto and all documents and materials referenced herein) supersedes any and all other agreements (and all prior or contemporaneous discussions, negotiations or understandings), oral or written of any kind and every nature between the parties hereto with respect to the subject matter hereof, and sets forth the complete and exclusive agreement between the parties with respect to the Services and, unless specifically provided for herein, other services are not included as part of this Agreement.
14.8 Amendment
Except as provided in this Agreement, this Agreement, including any addendum, schedule or exhibit hereto, shall only be modified or amended by an instrument in writing signed by the authorized representatives of each party hereto.
14.9 Waiver
No failure, delay or indulgence on the part of either party hereto in exercising any power or right conferred upon such party under this Agreement (or to insist upon strict performance) in any respect or on any occasion will operate as a waiver of such power or right, nor will any single or partial exercise of any such power or right preclude any other future exercise of it, or the exercise of any other power or right under this Agreement.
14.10 Force Majeure
We shall not be liable to Client for any loss or damage or for any failure or inability to perform, or delay in performance hereunder, if such failure, inability, or delay is due in whole or in part from any acts beyond our control, whether or not such acts could reasonably be anticipated (including acts of God, acts of war, terrorism, riots, legislative, judicial or regulatory acts of any provincial or federal government, court or regulatory authority, acts of any of our subcontractors or any third party network operators or third party service providers of goods or services to us, labour disruptions, blackouts, embargoes).
14.11 Severability
If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal or unenforceable by a court of competent jurisdiction under present or future laws effective during the Term of this Agreement, such provision shall be read down to the extent of such invalidity or unenforceability or, if incapable of such construction, it shall be severed and all other provisions, which are self-sustaining and capable of separate enforcement without regard to the invalid or unenforceable provisions shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom.
14.12 No Joint Venture
The parties agree and acknowledge they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this Agreement shall be deemed or is intended to be deemed to create, constitute or be construed as a partnership, franchise relationship, joint venture between the parties hereto or any other form of legal association between the parties. Client agrees not to make any representations or engage in any acts which could establish an apparent relationship of agency, joint venture, partnership or employment with AlphaPay nor shall Client have any right, power or authority to create any obligation or be deemed to constitute an agent of AlphaPay for any purposes whatsoever.
14.13 Intellectual Property
Nothing in this Agreement shall be interpreted as transferring to Client, by way of assignment, license or otherwise, any intellectual property rights of any nature owned or claimed by AlphaPay.
14.14 Time of the Essence
Time is of the essence in this Agreement.
14.15 Further Assurances
Each party agrees that it will do all things and execute all documents as the other party may reasonably require to effect the general purposes or any specific provision of this Agreement, provided that the requested actions are not inconsistent with this Agreement and do not require a party to assume a material obligation that is not specified in this Agreement.
14.16 Interpretation and Construction
The division of this Agreement into articles, sections, subsections and paragraphs and the insertion of headings are for convenience and reference only and do not constitute a limitation of terms hereof and shall not affect the meaning, construction or interpretation of any provision in this Agreement. Each party acknowledges that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiations between the parties and represent the parties’ voluntary agreement. In this Agreement, words importing the singular include the plural and vice versa; and words importing gender include all genders. All references to “herein,” “hereunder,” “hereof,” or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
14.17 Currency
All monetary amounts referred to in this Agreement are in Canadian dollars or US dollars unless otherwise indicated.
14.18 Language
The parties confirm that it is their express wish that this Agreement and all related documents be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que la présente convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais seulement.
14.19 Counterparts
This Agreement, and any amendment hereof, may be executed and then delivered via facsimile transmission, via the sending of PDF or other copies thereof via email and in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument.
14.20 Facsimile and Electronic Signatures
The parties agree that electronic signatures will have the same legal effect as original (i.e. ink) signatures and that an electronic, scanned, facsimile, or duplicate copy of any signatures will be deemed an original and may be used as evidence of execution.
EXHIBIT “A” – SETTLEMENT TERMS
| A.1 Interpretation | All capitalized terms used but not otherwise defined in this Exhibit have the meanings given to them in the Order Form and these Standard Terms. |
| A.2 Settlement Method | AlphaPay shall, after deducting all agreed Fees payable to AlphaPay from the corresponding Transaction, remit the balance to Client by way of electronic fund transfer to Client’s Nominated Bank Account in Canadian dollars (CAD) or U.S. dollars (USD). AlphaPay shall not be liable to Client for any loss resulting from the failure to notify AlphaPay of changes in the Nominated Bank Account information as required by this Agreement, except for sole proprietors in Quebec where such events result from AlphaPay’s acts or those of its representatives. |
| A.3 Settlement Terms |
Settlement Cycle: subject to the applicable payment method, settlement rail and banking system, AlphaPay’s standard settlement target is T+2, and funds are generally expected to be settled within three (3) Business Days after the date a Transaction occurred. Settlement Amount Calculation: the Client’s settlement amount will be calculated in accordance with the pricing configuration selected in the Order Form or otherwise agreed in writing between the parties.
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| A.4 Refund Process | Any authorization-only, non-delivery, dispute, defect, warranty or similar issue arising from Client’s goods or services may incur refunds in the normal course of business after a Transaction has been completed. Client shall be solely responsible for investigating and initiating refunds to its customers. If the related refund amount has already been settled to Client by AlphaPay, Client shall be solely responsible for processing the refund amount in accordance with Client’s refund policy with its customers, and AlphaPay may debit or set off such amounts where permitted under this Agreement. |
