PAYMENT SERVICES AGREEMENT (CANADA)
Dated: September 18, 2018. Any subsequent changes to this Payment
Services Agreement will be dated and can be found and read in the
corresponding Payment Services Agreement on the ProPay Canada website.
Information Summary Box
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Date of contract(s)
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Effective start date: the date this Agreement is signed by
ProPay (the "Effective Date").
Initial Term: 3 years
Renewal date: 3 years from the Effective Date.
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Acquirer
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ProPay Financial Solutions Canada, Inc., a
TSYS® Company; 3400 N. Ashton Blvd., Suite 200 Lehi,
Utah 84043 U.S.A. Phone: 866-573-0951. Website: http://www.propay.ca.
ProPay Financial Solutions Canada, Inc. is a registered
Independent Sales Organization (ISO) of Wells Fargo Bank,
N.A., Canadian Branch, Toronto, ON, Canada.
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Cancellation of contract(s) and any applicable
penalties
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The Agreement can be canceled without penalty at the
end of the Initial Term or any renewal term so long as
notice is given to ProPay at least 90 days prior to any
Renewal date. Details on cancelation and renewal are found
in sections X (Term and Termination) and XII(C)(6)
(Notices).
Fees for early termination will apply in the event Merchant
terminates prior to completing the first 12 months of the
Initial Term. Such early termination fees will be
calculated by taking the average monthly processing fees
incurred under the Agreement multiplied by the number of
months remaining in the first 12 months of the Initial
Term.
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Complaint handling procedures
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Please see
https://www.propay.ca/legal/codeofconduct.aspx
. In sum, if you have a complaint regarding a Code of
Conduct violation, you may contact ProPay by phone at
1-800-485-5902, email at
compliance@propay.com
or by mail at Compliance Department 3400 North Ashton
Blvd., Suite 200 Lehi, UT 84043 USA. Please include details
and copies of any supporting documentation. We will
acknowledge receipt of your complaint within five business
days, and provide our final decision in writing within
ninety days or the expected response time for the final
decision if there is a delay. If this does not resolve your
complaint, you may also contact Wells Fargo Bank, N.A.,
Canadian Branch - Merchant Services ("Bank"); 40 King
Street West, Suite 5012 Toronto, ON M5H 3Y2 CANADA Phone:
844-284-6834; and/or the Financial Consumer Agency of
Canada (FCAC) by phone at 1-866-461-3222, by email at
info@fcac-acfc.gc.ca
; or by mail at Financial Consumer Agency of Canada 6th
Floor, Enterprise Building 427 Laurier Ave. West, Ottawa,
ON K1R 1B9.
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Information about payment terminal
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Not applicable at this time.
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Contactless payments acceptance
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Not applicable at this time.
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Transaction return policy
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Card acceptance fees will not be refunded in the
event of a transaction return, and there is a $0.50 per
transaction Refund Fee for cards and $20 per transaction
ACH Return Fee.
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Independent Sales Organization
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Not applicable
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Code of Conduct
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The Canadian Code of Conduct may be accessed at:
http://www.fcac-acfc.gc.ca/Eng/forIndustry/publications/lawsReg/Pages/CodeofCo-Codedeco.aspx
.
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Statements
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Account statements may be accessed by visiting your
ProPay Account online at
www.propaycanada.ca
. There is a fee for paper statements of up to $10 per
month.
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Fee Disclosure Schedule
You will be charged the following fees unless they are waived, adjusted by
special arrangement, or changed by Affiliate Company specific pricing:
Payment Card Type
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Processing Method
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Card/Device Present
Means that the card/device was electronically read
(contact or contactless interface or mag-stripe)
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Card/Device Not-Present
Means that the card/device was not electronically read.
Generally, the card information is manually
key-entered, e.g. mail/telephone order, online,
recurring payment)
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American Express Cards
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Up to 3.75% / Up to 3.75%
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Up to 3.75% / Up to 3.75%
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American Express Corporate Purchasing Cards
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Up to 3.75% / Up to 3.75%
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Up to 3.75% / Up to 3.75%
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American Express Prepaid Cards
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Up to 3.75% / Up to 3.75%
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Up to 3.75% / Up to 3.75%
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MasterCard Business Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Business Premium Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Corporate Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Corporate Premium Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Debit Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard International Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Prepaid Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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MasterCard Standard Cards
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Up to 3.5% / Up to 3.5%
|
Up to 3.5% / Up to 3.5%
|
MasterCard World Cards
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Up to 3.5% / Up to 3.5%
|
Up to 3.5% / Up to 3.5%
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MasterCard World Elite Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Business Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Business Premium Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Corporate Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Corporate Premium Cards
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Up to 3.5% / Up to 3.5%
|
Up to 3.5% / Up to 3.5%
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Visa Debit Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Infinite Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Infinite Privilege Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa International Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Prepaid Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Visa Standard Credit Cards
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Up to 3.5% / Up to 3.5%
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Up to 3.5% / Up to 3.5%
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Other Fees (all fees are in Canadian dollars)
Annual Fee
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Up to $299.95
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Investigation Fee
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$10.00 per investigation
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Authorization Fee
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Up to $0.50 per transaction
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Intensive Investigation Fee
(for reasonable time spent responding to government
requests such as subpoenas, levies, temporary restraining
orders, or for high value chargebacks, where such time
exceeds 3 hours)
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$180 per hour
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Chargeback Fee
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Up to $25 per transaction
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Implementation Fee
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Free
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Void Fee
(before capture)
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Free
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Refund Fee
(after capture)
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Up to $0.50 per transaction
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Other transaction-related fees assessed by the Card
Brands or Bank
, including, but not limited to, assessments, pass through
fees, cross border fees, FANF, and network access fees.
|
Pass-through
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Retrieval Request Fee
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$10.00 per item
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ACH Return Fee
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$20.00 each occurrence
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Printed Monthly Statement
(if requested)
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$10.00 per month
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Processing Fee
(for unclaimed property transferred to a governmental body)
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$100
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This Payment Services Agreement ("Agreement") is a legal
agreement between you ("you", "your") and
ProPay Canada Financial Solutions Canada, Inc., a Utah corporation ("ProPay
Canada") governing your use of a ProPay Account (as defined below) and our
payment processing services (collectively, the "Services
"). You must accept all of the terms of this Agreement to use the Services.
I. CARD ACCEPTANCE.
A. Honouring Cards.
1. Without Discrimination. You will honour, without discrimination, any
valid Card properly tendered by a Cardholder. "Cardholder"
means a person possessing a Card and purporting to be the person in whose
name the Card is issued.
2. Cardholder Identification. You will identify the Cardholder when
accepting payment for products sold or services rendered. As part of the
Cardholder identification process, you will obtain the Expiry date, and
Postal Code or Zip Code from the Cardholder's billing address. It is also
highly recommended that you obtain the CVV2, CVC2 or CID information, as
applicable, from each card. You will not honour any Card if: (a) the Card
has expired; or, (b) the account number embossed on the Card is listed on a
current Electronic Warning Bulletin file.
3. Disclosure. You will properly disclose to the Cardholder, at the time of
the Card transaction, your name, return policy and any other limitation you
may have on accepting returned merchandise. Our name will appear in
conjunction with your name on Cardholder's statements.
4. You will not accept any payment from a Cardholder relating to previous
charges for merchants or services, and if you receive such payments, you
will promptly remit them to us. Provided that you give clear notice at the
point of sale and prior written notice to ProPay, you may elect to (a) not
accept Visa, MasterCard, or American Express branded debit or credit cards;
(b)accept credit cards from a specific network without accepting debit
cards from that same network; (c)accept debit cards from a specific network
without accepting credit cards from that same network (for example, you may
elect to accept only Visa debit cards, or only Visa credit cards, without
having to accept both); (d) provide discounts to customers based on any
method of payment selected by the customer (for example discounts for
payment by debit card, credit card, cash, etc.), or (e) choose any
combination of (a) through (d) above, in your discretion.
5. You have the right to provide discounts to customers based on any method
of payment selected by the customer (for example discounts for payment by
credit card, debit card, cash, network, etc.) provided that you clearly
identify such discounts at the point of sale.
6. Disputes with Cardholders. All disputes between you and any Cardholder
relating to any Card transaction will be settled between you and the
Cardholder. ProPay Canada bears no financial responsibility for any such
disputed transactions.
B. Authorization.
1. Required on all Transactions. You will obtain authorization via ProPay
Canada's web site, touch-tone phone system or other method acceptable to
ProPay Canada prior to completing any Card transaction. You will follow any
instructions received during the authorization process. Upon receipt of
authorization, you may consummate only the transaction authorized and must
note on the Sales Transmittal the authorization number. Where authorization
is obtained, you will be deemed to warrant the true identity of the
customer as the Cardholder. Transactions will be deemed invalid on Cards
that are expired, whether or not an Authorization has been obtained. You
must obtain the Card Expiry date and forward it as part of the
authorization request.
2. Effect. Authorizations are not a guarantee of acceptance or payment of a
Card transaction and does not waive any provision of this Agreement or
otherwise validate a fraudulent transaction or a transaction involving the
use of an expired Card. ProPay Canada may, in its sole discretion, refuse
to authorize any transaction. Neither ProPay Canada , nor agents acting on
its behalf will be responsible if authorization for a transaction is not
given.
C. Presentment of Sales Transmittals.
1. Forms. You will transmit to ProPay Canada information about each sale in
the form as required by ProPay Canada ("Sales Transmittal") to document
each Card transaction. Each Sales Transmittal will contain: (a) Your name
and account identifier; (b) the information embossed on the Card presented
by the Cardholder (either electronically or manually); (c) the date of the
transaction (d) a brief description of the goods or services involved; (e)
the transaction authorization number; (f) the total amount of the sale
(including any applicable taxes) or credit transaction; and, (g) if
applicable, adjacent to the signature line, a notation that all sales are
final.
2. Delivery and Retention of Sales Transmittals. You will deliver a
complete and legible copy of the Sales Transmittal or credit voucher to the
Cardholder at the time of the transaction. You will retain the merchant
copy of the Sales Transmittal or credit memorandum for at least 3 years
following the date of completion of the Card transaction (or such longer
period as the Rules may require). If you retain this information, you must
do so in accordance with the applicable Association information security
and confidentiality requirements as referenced in Section XII.B.2 below.
3. Electronic Transmission. You will enter at the ProPay Canada web site,
or transmit via XML to ProPay Canada, the data related to a sales or credit
transaction no later than 72 hours from the date the transaction is
completed. Information regarding a sales or credit transaction transmitted
with a computer or magnetic stripe reading terminal will be transmitted by
you to ProPay Canada or its agent in the form ProPay Canada from time to
time specifies, or as required under the Laws or Rules. If ProPay Canada
requests a copy of a Sales Transmittal, credit voucher or other transaction
evidence, you will provide it within 3 business days following the request.
D. Deposit of Sales Transmittals.
1. Funds.
(a) Deposits. You agree that this Agreement is a contract of financial
accommodation. Subject to this Agreement, including this Section, ProPay's
sponsor bank will deposit to the ProPay's sponsor bank Operating Account
all amounts evidenced by Sales Transmittals complying with the terms of
this Agreement and the Rules. The ProPay's sponsor bank Operating Account
is maintained by ProPay's sponsor bank for the clearing and settlement of
transactions of all ProPay Canada merchants, including those to your ProPay
Account. The balance of your funds in the ProPay's sponsor bank Operating
Account and in your ProPay Account is provided by ProPay Canada to you on
periodic statements that can be accessed by you online on ProPay Canada's
website. All amounts owing under this Agreement will remain in the ProPay's
sponsor bank Operating Account until: (i) such funds are released by you at
your discretion, as evidenced on ProPay Canada's web site or (ii) you
inform ProPay's sponsor bank in accordance with ProPay Canada's
instructions, to release such funds to the Chequing Account designated by
you in accordance with the Electronic Funds Transfer Agreement, which is
incorporated herein by reference. You acknowledge that your obligation to
ProPay Canada for all amounts owed under this Agreement arise out of the
same transaction as ProPay's sponsor bank's obligation to place funds in
the ProPay's sponsor bank Operating Account with respect to transactions
processed pursuant to the terms of this Agreement for your ProPay Account.
(b) Provisional Credit. Notwithstanding the previous sentences in Section
1(a) above, under no circumstance will ProPay Canada be responsible for
processing credits or adjustments related to Sales Transmittals not
originally processed by ProPay Canada. All Sales Transmittals and deposits
are subject to audit and final verification by ProPay Canada, and may be
adjusted for inaccuracies. You acknowledge that all credits provided to you
are provisional and subject to chargebacks and adjustments in accordance
with the Rules, whether or not a transaction is charged back by the Card
issuer.
(c) Processing Limits. The processing limits on your particular type of
ProPay Account are established by ProPay Canada. At the sole discretion of
ProPay Canada, depending on your Account type and your Affiliated Company's
agreement with ProPay Canada, you will be assigned a maximum dollar amount
per sales ticket and an aggregate maximum dollar amount of Sales
Transmittals per calendar month, ranging from a maximum of $250 per sales
ticket and an aggregate maximum of $1,000 per calendar month in Sales
Transmittals to a maximum of $3,000 per sales ticket and an aggregate
maximum of $15,000 per calendar month in Sales Transmittals. These
processing limits may be waived, adjusted by special arrangement, or
changed by Affiliate Company specific limits. You may request an increase
in your Account per sales ticket limit or your monthly processing sales
volume by submitting such a request to ProPay Canada. Any such increase
shall be at the sole discretion of ProPay Canada and ProPay Canada reserves
the right to reverse and decrease any increase previously authorized. Also
any increase granted by ProPay Canada may be conditional upon and require
the establishment of a Reserve Account by you. There are no monthly
processing minimums for any ProPay Canada Account type. Further details
regarding the fees and options associated with your ProPay Canada Account
may be accessed and reviewed by clicking the "features and pricing" link at www.propay.ca.
(d) Interest. No interest shall be paid to you on funds belonging to you in
your ProPay Account that are deposited in the ProPay's sponsor bank
Operating Account.
(e) CDIC Insurance. ProPay's sponsor bank will hold funds due to you in the
ProPay's sponsor bank Operating Account together with funds from other
ProPay Canada Merchants. The funds in the ProPay's sponsor bank Operating
Account are not eligible for CDIC insurance and accordingly, not protected
by CDIC insurance.
2. Chargebacks. You are fully liable to ProPay Canada for all Card
transactions returned by your customers to ProPay Canada for whatever
reason, otherwise known as "Chargebacks." You will pay ProPay Canada on
demand for the amount of all chargebacks. You agree to accept
responsibility for all chargebacks and will be liable to ProPay Canada for
the total amount of any sale for which the Cardholder disputes the validity
of the sale. You authorize ProPay Canada to offset from incoming
transactions and to debit the ProPay's sponsor bank Operating Account, your
ProPay Canada Account, and/or the Reserve Account to recover any
chargeback. You will fully cooperate with ProPay Canada in complying with
the Rules regarding chargebacks. You are personally liable for all
chargebacks. ProPay Canada may suspend accepting Sales Transmittals or
releasing funds represented by Sales Transmittals to you until you
reimburse ProPay Canada for all unpaid chargebacks. Furthermore, if you are
an independent sales consultant you authorize ProPay Canada to report any
chargeback not reimbursed by you within 30 days ("Unpaid Chargeback") to
your Affiliated Company, as applicable.
3. Excessive Activity. Your presentation to ProPay Canada of Excessive
Activity will be a breach of this Agreement and cause for immediate
termination of this Agreement. "Excessive Activity" shall mean: chargebacks
in excess of .50% of the transaction ratio of your Card transactions; or,
chargebacks in excess of .50% of the transaction ratio of the dollar amount
of your Card transactions; or, returns in excess of 3% of the transaction
ratio of your Sales Transmittals; or, denied transactions in excess of 5%
of the transaction ratio of your Card transactions. You authorize, upon the
occurrence of Excessive Activity, ProPay Canada to take additional action
it deems necessary, including, but not limited to, suspension of processing
privileges or creation or maintenance of a Reserve Account in accordance
with this Agreement.
4. Reprocessing. Notwithstanding any authorization or request from the
Cardholder or customer, you will not reenter or reprocess any Card
transaction that has been charged back.
5. Credits.
(a) Credit Memoranda. You will issue a credit memorandum, instead of making
a cash advance, a disbursement or a refund on any Card transaction.
ProPay's sponsor bank will debit from the amounts owing you under your
ProPay Canada Account for the total face amount of each credit memorandum
submitted. You will not submit a credit relating to any Sales Transmittal
not originally submitted to ProPay Canada, nor will you submit a credit
that exceeds the amount of the original Sales Transmittal. You will, within
the time period specified by applicable law, provide ProPay Canada with a
credit memorandum or credit statement for every return of goods or
forgiveness of debt for services that were the subject of a Card
transaction.
(b) Revocation of Credit. ProPay Canada may refuse to accept any Sales
Transmittal or revoke its prior acceptance of a Sales Transmittal in the
following circumstances: (i) the transaction giving rise to the Sales
Transmittal was not made in compliance with all terms and conditions of
this Agreement, the Laws and the Rules; (ii) the Cardholder disputes
liability to ProPay Canada for any reason, including but not limited to
those chargeback rights enumerated in the Rules; or, (iii) the transaction
giving rise to the Sales Transmittal was not directly between you and the
Cardholder. You will pay ProPay Canada, as appropriate, any amount
previously credited to you for a Sales Transmittal not accepted by ProPay
Canada or, where accepted, it is subsequently revoked.
6. Fraud and Factoring. You will not present for processing or credit,
directly or indirectly, any transaction not originated as a result of a
Card transaction directly between you and a Cardholder or any transaction
you know or should know to be fraudulent or not authorized by the
Cardholder. Perpetrators of fraudulent transactions will be referred by
ProPay Canada, in its discretion, to the appropriate law enforcement
agency. You will not sell or disclose to third parties Card account
information other than in the course of performing your obligations under
this Agreement. You will not deposit any Sales Transmittal representing the
refinancing of an existing uncollectible obligation, debt or dishonoured
cheque of a Cardholder. You agree that ProPay Canada or ProPay's sponsor
bank may, within its sole discretion, suspend the disbursement of Sales
Transmittal funds for any reasonable period of time required to investigate
suspicious or unusual deposit activity. ProPay Canada shall have no
liability for any losses you may attribute to any suspension of funds
disbursement.
7. High Risk Transactions/Acceptable Use Policy. ProPay Canada does not
allow its service to be used for high risk transactions or for illegal
activities. Such activities are deemed to be prohibited by ProPay Canada,
and in contravention of the following High Risk Transactions/Acceptable Use
Policy. ProPay Canada reserves the right to take preventative or corrective
actions to protect its interests and the users of its service. The ProPay
Canada High Risk Transactions/Acceptable Use Policy helps those using our
service identify activities that are illegal or may be illegal under
certain circumstances, and to identify certain types of activities for
which ProPay Canada has elected not to process payments, even if the
activities may be legal. ProPay Canada reserves the right, for any reason
and in its sole discretion, to revise its High Risk Transactions/Acceptable
Use Policy. Your presentation to ProPay Canada of high risk transactions or
transactions that otherwise violate the ProPay Canada acceptable use policy
may result in one or more of the following: (a) refusal of an Authorization
or the refusal to process a Sales Transmittal; (b) suspension of your
processing privileges; (c) creation of a reserve account in accordance with
this Agreement; (d) ProPay Canada exercising its security interest as
defined in this Agreement; (e) immediate closing of your account in
accordance with this Agreement.
(a) Prohibited Activities. Prohibited Activities of the ProPay Canada High
Risk Transactions/Acceptable Use Policy include, but are not limited to,
the following:
i. Aggregators (Sales made by a different business entity)
ii. Alcoholic Beverages
iii. Authenticity Disclaimers
iv. Artifacts, Graver-Related and First Nation Crafts
v. Bootleg Recordings
vi. Counterfeit Items
vii. Embargoed Goods, Prohibited Countries
viii. Event Tickets
ix. Faces, Names and Signatures
x. Weapons and ammunitions
xi. Government Identification, Uniforms, and Police-Related Items
xii. Illegal Drugs and Paraphernalia
xiii. Money Laundering or the Financing of Terrorist Activities
xiv. Medical Devices
xv. Multi-level marketing or Pyramid schemes
xvi. Offensive, Racially or Culturally Insensitive Material
xvii. Sexually oriented or pornographic merchants, including but not
limited to the following: adult book stores or video stores, adult
telephone conversations, adult websites and content, companion/escort
services, dating services (sexually oriented), mail order brides, massage
parlors, topless bars, miscellaneous adult entertainment
xviii. Prescription Drugs and Devices
xix. Pharmacies
xx. Pseudo pharmaceuticals (e.g., anti-aging pills, sexual stimulants,
weight loss, diet, etc.)
xxi. Unauthorized Copies
xxii. Gambling and gambling services, including but not limited to the
following: legal gambling where the cardholder is not present when the bet
is made, lotteries, illegal gambling including internet gambling, sports
forecasting or odds making, betting, casino gaming, off track betting;
gambling chips or gambling credits
xxiii. Any service providing peripheral support of illegal activities (i.e.
drugs)
xxiv. Consulting firms or firms selling "get rich quick" schemes
xxv. Real estate purchase with no money down
xxvi. Mortgage reduction services
xxvii. Credit repair or protection services
xxviii. Collection agency services recovering/collecting past due
receivable
xxix. Any illegal products/services
xxx. Timeshares
xxxi. Extended warranties
xxxii. Credit card and identity theft protection
xxxiii. Financial transactions, including but not limited to: quasi cash,
stored value foreign currency, money orders, wire transfers, securities,
cheque cashing, factoring (processing merchants own card)
xxxiv. Shipping/Forwarding Brokers
xxxv. Airlines
xxxvi. Bail bonds
xxxvii. Bankruptcy lawyers
xxxviii. Cell phones/pagers (billing for services only)
xxxix. Centralized reservation services
xl. Chain letters
xli. Cruise lines
xlii. Flea markets (defined as firms/individuals operating from a booth, on
a part time basis with no lease or telephone availability, whether or not
indoors)
xliii. Fortune tellers
xliv. Security brokers
xlv. Telemarketing companies involved with the following methods of
operations: offering a free gift, prize or sweepstakes, contest entry as an
inducement to purchase their product or service; inbound telemarketing
companies that receive calls as the result of post cards or similar
mailings (as opposed to catalog or media advertising); selling
products/services as an agent for a third party
xlvi. Business physically located outside of Canada
xlvii. Merchants offering substantial rebates or special incentives that
are awarded to the cardholder subsequent to the original purchase
xlviii. Negative response marketing techniques by any type of merchant
(i.e. customer is automatically charged if they do not return the
merchandise at the end of a free trail period)
xlix. Vacation rentals/Lodging
l. Tour Operators
li. Travel agencies
lii. Real Estate Agents and Brokers
liii. Past Due Accounts Receivable
liv. Payment of last resort where prior method of payment has been
difficult to collect or has been uncollectible
lv. Lottery tickets
lvi. Substances made to closely resemble or look like illegal substances
lvii. Substances marketed as producing effects similar to effects of
illegal substances
lviii. Loan payment and loan underwriting
E. Other Types of Transactions.
1. Recurring Transactions. For recurring transactions, you must obtain a
written request from the Cardholder for such goods and services to be
charged to the Cardholder's account, the frequency of the recurring charge
and the duration of time during which such charges may be made. You must
obtain such written consent before the first recurring transaction and you
must notify the Cardholder that he/she is able to discontinue consent for
recurring billing charges at any time. You must retain evidence of such
written consent for recurring transactions for twenty-four months (24) from
the date you submit the last recurring billing charge. In the event that
the Agreement is terminated for any reason, then you will, at your own
cost, advise all individuals and/or establishments to whom you submit
recurring billing charges that you no longer accept the Card and will not
be able to pay for amounts payable at such establishments or by such
individual. The termination of a Cardholders' Card or of your ProPay Canada
Account constitutes immediate cancellation of the Cardholder's consent for
recurring billing charges. ProPay Canada shall hereby assume no obligation
to notify you of such cancellation, nor shall ProPay Canada have any
liability to you arising from any such cancellation. You will not complete
any recurring transaction after receiving: (a) a cancellation notice from
the Cardholder; (b) notice from ProPay Canada or ProPay's sponsor bank; or,
(c) a response that the Card is not to be honoured. You must print legibly
on the Sales Transmittal the words "Recurring Transaction."
2. Multiple Sales Transmittals. You will include a description and total
amount of goods and services purchased in a single sales transaction on a
single Sales Transmittal, unless: (a) partial payment is entered on the
Sales Transmittal or transaction record and the balance of the transaction
amount is paid in cash or by cheque at the time of transaction; or, (b) a
Sales Transmittal represents an advance deposit in a Card transaction
completed in accordance with this Agreement and the Rules.
3. Future Delivery. You will not present any Sales Transmittal to ProPay
Canada for processing which relates to the sale of goods or services for
future delivery. If, however, you have clearly disclosed your intentions to
the Cardholder and the Cardholder agrees, you may submit the following
types of charges to ProPay Canada before you deliver the goods purchased to
the Cardholder: (a) charges representing deposits on (i) custom and/or
special orders (provided that in doing so you are in compliance with
applicable law) and (ii) mail orders for items not in inventory at the time
the order is placed; and (b) charges representing advance, partial or full
payment for items the Cardholder requests you to deliver at a later date.
If a Cardholder disputes any of these charges, we will have the right to
Full Recourse for such charge. You represent and warrant to ProPay Canada
that you will not rely on any proceeds or credit resulting from such
transactions to purchase or furnish goods or services. You will maintain
sufficient capital to provide for the delivery of goods or services at the
agreed upon future date, independent of any credit or proceeds resulting
from Sales Transmittals taken in connection with future delivery
transactions.
4. Electronic Commerce Transactions.
(a) Electronic Commerce. You may process electronic commerce ("EC")
transactions only if the transactions have been encrypted by a third party
vendor acceptable to ProPay Canada. You are liable for all chargebacks and
losses related to EC transactions, whether or not EC transactions have been
encrypted. Encryption is not a guarantee of payment and will not waive any
provision of this Agreement or otherwise validate a fraudulent transaction.
(b) Requirements. For goods to be shipped on EC transactions, you may
obtain authorization up to 7 calendar days prior to the shipment date. You
need not obtain a second authorization if the Sales Transmittal amount is
within 15% of the authorized amount, provided that the additional amount
represents shipping costs. Further, your web site must contain all of the
following information: (i) complete description of the goods or services
offered, (ii) returned merchandise and refund policy, (iii) customer
service contact, including electronic mail address and/or telephone number,
(iv) transaction currency (such as U.S. or Canadian dollars), (v) export or
legal restrictions, if known, and, (vi) delivery policy
(c) Information Security and Confidentiality. If you store Cardholder
account numbers, Expiry dates, and other personal Cardholder data in a
database, you must follow Visa and MasterCard guidelines on securing such
data. You must, at all times, remain in compliance with the Cardholder
information security and confidentiality requirements of Payment Card
Industry Data Security Standards (hereinafter referred to as "PCIDSS") as
applicable, as mandated by the Associations and ProPay's sponsor bank.
These requirements are more fully set forth in Section XII.B.4 below. An
abridged version of the MasterCard rules may be viewed at
www.mastercard.com/ca/merchant/en/getstarted/rules.html.
II. Chequing Account.
A. Establishment and Authority. You may establish and maintain a chequing
account at the financial institution of your choice to facilitate payment
for Card transactions and the transfer of amounts due you from your ProPay
Canada Account in accordance with the ProPay Canada Electronic Funds
Transfer Agreement. You irrevocably authorize ProPay's sponsor bank and
ProPay Canada to immediately debit the Chequing Account associated with
your ProPay Canada Account for the transfer of your funds as established
pursuant to the Electronic Funds Transfer Agreement for any and all
fraudulent transactions, any negative balance in your ProPay Canada Account
and for fees and any other penalties or payments you owe ProPay's sponsor
bank and ProPay Canada under this Agreement, unless other terms have been
agreed upon between ProPay Canada and your Affiliated Company. You agree
that ProPay's sponsor bank and ProPay Canada shall not incur any liability
for any loss, costs or fees incurred by you that are the result of such
debits by ProPay Canada.
B. Electronic Funds Transfer Agreement. The transfer of funds by you into
and out of your ProPay Canada Account is governed by the terms and
conditions of the ProPay Canada Electronic Funds Transfer Agreement
referenced herein. You hereby agree to the terms and conditions of the
ProPay Canada Electronic Funds Transfer Agreement as amended from time to
time, and which is incorporated into this Agreement by reference as if
fully set forth herein.
III. Security Interests, Reserve Account, Recoupment and Set Off.
A. Security Interest.
1. Security Agreement. This Agreement will constitute a security agreement
under the relevant provincial personal property security (or similar)
legislation of the province of your residence. You grant to ProPay's
sponsor bank and ProPay Canada a security interest in and lien upon: (a)
all funds representing amounts owing you under this Agreement at any time
in the ProPay's sponsor bank Operating Account, regardless of the source of
such funds; (b) all funds at any time in the Reserve Account (as defined
below), regardless of the source of such funds; (c) present and future
Sales Transmittals; and, (d) any amount which may be due to you under this
Agreement, including, without limitation, all rights to receive any
payments or credits under this Agreement (collectively, the "Secured
Assets"). You agree to provide other security to ProPay's sponsor bank and
ProPay Canada upon request to secure your obligations under this Agreement.
These security interests and liens will secure all of your obligations
under this Agreement and any other agreements now existing or later entered
into between you, ProPay's sponsor bank and ProPay Canada including, but
not limited to, your obligation to pay any amounts due and owing to ProPay
Canada. This security interest may be exercised by ProPay's sponsor bank
and/or ProPay Canada without notice or demand of any kind by making an
immediate withdrawal or freezing of your Secured Assets.
2. Perfection. Upon request of ProPay's sponsor bank or ProPay Canada, you
will execute one or more financing statements or other documents to
evidence this security interest. You authorize ProPay Canada and appoint
ProPay Canada your attorney in fact to sign your name to any financing
statement used for the perfection of any security interest or lien granted
hereunder. You represent and warrant that no other person or entity has a
security interest in the Secured Assets. With respect to such security
interests and liens, ProPay's sponsor bank and ProPay Canada will have all
rights afforded under the relevant provincial personal property security
(or similar) legislation of the province of your residence and any other
applicable law and in equity. You will obtain from ProPay Canada written
consent prior to granting a security interest of any kind in the Secured
Assets to a third party. You agree that ProPay's sponsor bank or ProPay
Canada are not required to file a motion for relief from a bankruptcy
action automatic stay to realize on any of the Secured Assets.
Nevertheless, you agree not to contest or object to any motion for relief
from the automatic stay filed by ProPay's sponsor bank or ProPay Canada.
B. Reserve Account.
1. Establishment. For the purpose of providing a deposit and a source of
funds to pay ProPay's sponsor bank and ProPay Canada for amounts owed by
you, you shall deposit into a ProPay's sponsor bank titled account
maintained by ProPay Canada initially or at any time in the future as
requested in good faith by ProPay Canada, sums sufficient to satisfy your
current and/or future obligations as determined by ProPay Canada. Funds, if
any, in the Reserve Account shall remain in the Reserve Account until each
of the following has occurred: (a) this Agreement has been terminated; and,
(b) you have paid in full all amounts owing or that could ever be owed
under this Agreement, including, without limitation, all
outstanding/uncollected amounts and potential chargebacks. ProPay's sponsor
bank shall have sole control of the Reserve Account. ProPay's sponsor bank
or ProPay Canada may, at any time, require that the amount on deposit in
the Reserve Account be increased and shall have sole discretion as to the
amount thereof from time to time. In no event shall you be entitled to a
return of any sums remaining in the Reserve Account for 270 days following
the effective date of termination of this Agreement.
2. Funding. ProPay's sponsor bank and ProPay Canada have the right to debit
your funds in the ProPay's sponsor bank Operating Account to establish,
increase or maintain funds in the Reserve Account. ProPay Canada may
deposit into the Reserve Account funds it would otherwise be obligated to
pay you, for the purpose of establishing, increasing or maintaining the
Reserve Account in accordance with this Section III, if it determines such
action is reasonably necessary to protect its interests, or its ProPay's
sponsor bank's interests. You understand and agree that if you are required
to establish a Reserve Account, you have an obligation under this Agreement
to maintain at all times a balance in the Reserve Account sufficient to
protect ProPay's sponsor bank and ProPay Canada against losses resulting
from transactions initiated by you.
3. Authorizations. ProPay's sponsor bank or ProPay Canada may, without
notice to you, apply funds deposited in your Reserve Account against any
outstanding amounts you owe ProPay's sponsor bank or ProPay Canada under
this Agreement or any other agreement between you and ProPay Canada. Also,
ProPay Canada may debit your Reserve Account to exercise its rights or
those of the ProPay's sponsor bank under this Agreement to collect any
amounts due to ProPay's sponsor bank or ProPay Canada including, without
limitation, rights of set-off and recoupment.
C. Recoupment and Set Off.
1. Right to Recoupment. ProPay's sponsor bank and ProPay Canada have the
right of recoupment and set-off. This means that they may offset any
outstanding/uncollected amounts owed to them from: (a) any amounts owed to
you that they would otherwise be obligated to deposit into the ProPay's
sponsor bank Operating Account, (b) any other amounts ProPay Canada may owe
you under this Agreement or any other agreement, and (c) the Chequing
Account which you may have associated with your ProPay Canada Account in
accordance with the Electronic Funds Transfer Agreement. You acknowledge
that in the event of a bankruptcy proceeding, in order for you to provide
adequate protection to ProPay's sponsor bank and ProPay Canada, you must
create or maintain the Reserve Account as required by ProPay's sponsor bank
and ProPay Canada, and ProPay's sponsor bank and/or ProPay Canada will have
the right to offset against the Reserve Account for any and all obligations
which you may owe to ProPay's sponsor bank and/or ProPay Canada, without
regard to whether the obligations relate to Sales Transmittals initiated or
created before or after the filing of the bankruptcy petition.
2. Remedies Cumulative. The rights conferred upon the ProPay's sponsor bank
and ProPay Canada in this Section III are not intended to be exclusive of
each other or of any other rights and remedies of the ProPay's sponsor bank
and ProPay Canada under this Agreement, at law or in equity. Rather, each
and every right of ProPay's sponsor bank and ProPay Canada at law or in
equity will be cumulative and concurrent and in addition to every other
right.
IV. FEES, OTHER AMOUNTS OWED, AND ACCOUNT INACTIVITY
A. Fees. You will pay to ProPay Canada fees for services in accordance with
the Fee Disclosure Schedule above. Such fees will be calculated and debited
from amounts due to you under the ProPay Canada Account concurrently with
transaction activity or will be netted out from the funds due you under
this Agreement.
B. Other Amounts Owed. You will immediately pay ProPay Canada any amount
incurred by ProPay Canada attributable to this Agreement, including but not
limited to chargebacks, credits, fines imposed by Visa, MasterCard, or
American Express, as applicable, and non-sufficient fund fees and ACSS
debits that overdraws amounts due to you under the ProPay Canada Account,
Reserve Account, or at any other financial institution for any amount you
owe ProPay Canada under this Agreement or under any contract now existing
or later entered into between you and ProPay Canada.
C. Taxes. You are also obligated to pay all taxes and other charges imposed
by any governmental authority on the services provided under this
Agreement. You understand that the aforementioned does not obviate your
responsibility for your tax liability incurred with the sale of goods or
services regarding transaction activity associated with your ProPay
Account.
D. Annual Fee. On the Effective Date of your respective Account, you will
be assessed the Annual Fee for specifically arranging and providing
financial services for you, corresponding to the Account type you select on
the date of your initial order and in the month prior to each anniversary
date thereafter (11 months after the Effective Date). You will have the
option to renew your Account type or to select another Account type with
its associated fee and discount rate at the time of renewal. You have 30
days from the Effective Date of your respective Account or from the
anniversary date in the event you renew your Account type to update your
Account to a higher priced Account type paying the difference between the
two Account types. If you elect to purchase a higher priced Account type
after this 30 day period you will pay the full price for the new Account
type. You may cancel your Account at any time by providing ProPay Canada
notice of the cancellation. If you cancel within 30 days of the date of
your payment of your Annual Fee, ProPay Canada will refund some, but not
all, of your Annual Fee to you. If you cancel your Account 30 days or more
after the date of your payment of your Annual Fee, your Annual Fee will not
be refunded and your Account will be cancelled. If you have not cancelled
your Account and if the Annual Fee is not paid by midnight on the
anniversary date, the Annual Fee will be assessed on a monthly basis
(starting at noon on the day after your anniversary date, equal to the
previous annual fee divided by 6) for the respective Renewal Term (six
months). In the event any Annual Fee is not paid for any reason, this
Agreement may be terminated and your Account closed. To reopen the Account
or renew any service, an application may be required and all fees,
including an Annual Fee and/or Reactivation Fee may apply.
E. Acceptable Methods of Payments. The Annual Fee, Monthly Maintenance
Fees, and other fees will be charged to your credit card or deducted from
any amounts due you in your ProPay's sponsor bank Operating Account.
F. Processing Credit. You may be granted processing credit. This processing
credit may only be used by you to offset processing fees you may owe to
ProPay Canada. The processing credit is limited to paying for processing
fees, as shown in the Fee Disclosure Schedule or Exhibit 1 of the
Electronic Transfer Agreement, and cannot be converted to cash. If not used
within the period of time specified by ProPay Canada or prior to the
termination or Expiry of your Account, the processing credit shall expire.
The foregoing notwithstanding, ProPay Canada may, at its sole discretion,
cancel any processing credit granted to you.
G. Other Fees. You may also be subject to a different Discount and
Authorization Fees than those set forth on the Fee Disclosure Schedule if
authorizations are submitted to your ProPay Canada Account, on your behalf,
by an approved affiliate utilizing ProPay Canada's XML interface. These
fees are published by the affiliate that submitted the transactions on your
behalf and are therefore binding upon you. H. Processing Fee. You agree to
pay a processing fee of $100.00 (Canadian) to ProPay Canada in the event it
is determined that ProPay Canada and/or the ProPay's sponsor bank must
return funds to any provincial or other governmental body as a result of
any unclaimed property or similar laws owing to you under this Agreement
that remain in the ProPay's sponsor bank Operating Account or Reserve
Account or otherwise in the possession of ProPay Canada attributable to
you, to reimburse ProPay Canada for the cost of making such a determination
and for processing any attendant documentation.
V. APPLICATION, INDEMNIFICATION, LIMITATION OF LIABILITY.
A. Application. You represent and warrant to ProPay Canada that all
information in the Application is correct and complete. You warrant to
ProPay Canada that the information contained in your Application accurately
and fully describes and details the nature, type and scope of the business
in which you are engaged, including but not limited to the products and/or
services you intend to sell, the URL and website associated with your
business, and for which you contemplate using your ProPay Account. You
acknowledge and covenant that you will only use your ProPay Account for the
business purpose set forth by you in your Application. You understand that
the aforementioned information is essential for ProPay Canada to receive in
order to satisfy the applicable federal, provincial, Association and/or
banking regulatory requirements with which ProPay Canada must comply. You
must notify ProPay Canada via e-mail of any changes to the information in
the Application, including but not limited to a change of your email
address, URL and/or website associated with your business. The notice must
be received by ProPay Canada within 10 business days of the change.
Further, you warrant that you will provide ProPay Canada with notice, via
email in the eventuality you intend to sell products and/or services
different than those delineated in your Application, or otherwise intend to
alter the nature, type and scope of the business in which you are engaged.
This notice must be received by ProPay Canada prior to your implementation
of any contemplated changes to your business. ProPay Canada reserves the
right to terminate this Agreement in the event the contemplated changes to
your business violate the terms and conditions of this Agreement or are in
violation of the applicable federal, provincial, Association and/or banking
regulatory requirements with which ProPay Canada must comply or if such
changes would, in the sole discretion of ProPay Canada, increase our risk
exposure to an unacceptable level. Also, you will provide updated
information to ProPay Canada within a reasonable time upon request. You are
liable to ProPay Canada for all losses and expenses incurred by ProPay
Canada arising out of your failure to report changes to them. ProPay Canada
may immediately terminate this Agreement upon notification of a material
change to the information in the Application.
B. Indemnification. You shall indemnify and hold the ProPay's sponsor bank
and ProPay Canada harmless for any action it takes with respect to your
ProPay Account, including funds in the ProPay's sponsor bank Operating
Account, and/or Reserve Account. You will also indemnify and hold harmless
the ProPay's sponsor bank for acting in accordance with any instruction
from you or ProPay Canada regarding your ProPay Account. Further, you shall
indemnify and hold harmless ProPay's sponsor bank and ProPay Canada, its
employees, officers, directors, shareholders and agents from any and all
loss, cost, expense, claim, damage and liability (including attorneys' fees
and costs) paid or incurred by any one or more of them, arising from,
caused by, or attributable to, any of the following:
1. Any and all claims or damages made by third parties arising out of this
Agreement, including but not limited to all attorneys' fees and costs paid
or incurred by ProPay Canada in the enforcement of the Agreement and those
resulting from any transaction processed under this Agreement, or any
breach by you of this Agreement and those related to any bankruptcy
proceeding;
2. Willful misconduct, fraud, intentional tort or negligence by you or that
of your employees, agents or representatives;
3. Any and all claims or damages by you which are the result of theft,
embezzlement, or unauthorized use with respect to your ProPay Account.
C. Unauthorized Use. You assume any and all risk of loss and/or damages
which arise out of or are the result of the theft, embezzlement, or
unauthorized use with respect to your ProPay Account and hold harmless
ProPay Canada and ProPay's sponsor bank from any and all claims, demands or
causes of action, including attorneys' fees and costs which arise out of or
are the result of the theft, embezzlement, unauthorized use regarding your
ProPay Account and the prepaid debit or stored value card attached to your
ProPay Account.
D. Password. If you share your ProPay Canada Account password with any
third party, ProPay Canada has the right to assume that the action taken by
the third party regarding your ProPay Canada Account was authorized by you
and shall be deemed to have been authorized by you, whether or not such
authority actually exists.
E. Limitation of Liability. Any liability of the ProPay's sponsor bank and
ProPay Canada under this Agreement, whether to you or any other party,
whatever the basis of the liability, will not exceed in the aggregate the
difference between the amount of fees ProPay Canada received from you
during the month in which the transaction out of which the liability arose
accrued and any assessments, chargebacks, and offsets against such fees
which arose during that month. If more than one month is involved, the
aggregate amount of ProPay's sponsor bank or ProPay Canada's liability will
not exceed the lowest amount determined in accordance with the previous
sentence for any one month involved. In no event shall ProPay's sponsor
bank or ProPay Canada, its agents, officers, directors or employees be
liable for indirect, special or consequential damages.
F. Performance. ProPay Canada and ProPay's sponsor bank will perform all
services in accordance with this Agreement. No party will be liable to the
other parties for any failure or delay in its performance of this Agreement
if such failure or delay arises out of causes beyond the control and
without the fault or negligence of such party.
G. No Warranties.
NEITHER PROPAY CANADA NOR PROPAY'S SPONSOR BANK MAKES ANY OTHER
WARRANTY, EXPRESS OR IMPLIED, REGARDING ITS SERVICES, AND NOTHING
CONTAINED IN THIS AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. PROPAY
CANADA AND PROPAY'S SPONSOR BANK DISCLAIM ALL IMPLIED WARRANTIES AND
CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION
THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, THE
IMPLIED WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT. PROPAY CANADA DOES
NOT WARRANT THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR
DO PROPAY'S SPONSOR BANK OR PROPAY CANADA MAKE ANY WARRANTY AS TO THE
PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY THE USE OF SERVICES.
Further, ProPay Canada shall make reasonable efforts to ensure that all
transaction requests are processed in a timely manner. However, ProPay
Canada makes no representations or warranties regarding the amount of time
needed to complete processing because our service is largely dependent upon
many factors outside of our control, such as delays in the banking system
or mail service. Some provinces may not allow the disclaimer of implied
warranties, so the foregoing disclaimer may not apply to you. This warranty
gives you specific legal rights and you may also have other legal rights
that vary from province to province.
EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN
RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY
SET FORTH HEREIN.
H. Liability for Violations of High Risk Transactions/Acceptable Use
Policy. If you engage in the behavior set forth and proscribed above in
ProPay Canada's High Risk Transaction/Acceptable Use Policy (Section
I.7(a)), ProPay Canada may fine you in accordance with the terms set forth
below.
1. Damages. You and ProPay Canada agree that the damages that ProPay Canada
will sustain as a result of the behavior prohibited in the ProPay Canada
High Risk Transactions/Acceptable Use Policy will be substantial,
including, without limitation, fines and other related expenses from Visa,
MasterCard, or American Express,, its sponsor banks, payment processors and
service providers, but may be extremely difficult and impracticable to
ascertain. In the event that you engage in the aforementioned prohibited
behavior set forth in Section I.D. 7(a) above, then ProPay Canada may
require you to pay $500.00 in damages and/or ProPay Canada may take legal
action against you to recover losses that are in excess of the amount
fined. You acknowledge and hereby agree that $500.00 is reasonable minimum
estimate of ProPay Canada's damages, considering all currently existing
circumstances, including, without limitation, the relationship of the sum
to the range of harm to ProPay Canada that reasonably could be anticipated
and the anticipation that proof of actual damages may be impractical or
extremely difficult to ascertain. You agree that ProPay Canada is entitled
to invoke the security interest it has, as set forth in Section III.A.1.,
pursuant to a violation of the High Risk Transaction/Acceptable Use Policy
of this Agreement, in order to collect the damages payable by you, or other
losses incurred by ProPay Canada, as set forth in this Section.
2. Liability. You understand that, if you use the ProPay Canada service in
contravention of the High Risk Transactions/Acceptable Use Policy set forth
in this Agreement, ProPay Canada may incur substantial liability and/or
suffer significant damages, including, without limitation, fines and other
related expenses from Visa, MasterCard, or American Express, its sponsor
banks, payment processors and service providers. By selling goods or
services, including access to content, in violation of the High Risk
Transactions/Acceptable Use Policy of this Agreement, you hereby
acknowledge liability to ProPay Canada for any and all damages suffered by
ProPay Canada, without limitation, despite other language in this Agreement
to the contrary. Without limiting the foregoing, you agree to reimburse
ProPay Canada for any and all costs, expenses, and fines levied on ProPay
Canada by Visa, MasterCard, or American Express, its sponsor banks, payment
processors or service providers as a result of your activities.
3. Attorney's Fees. Further, you agree that if either you or ProPay Canada
commence litigation or arbitration in connection with this paragraph, the
prevailing party is entitled to recover reasonable attorneys' fees and any
other costs incurred in such proceeding, in addition to any other relief to
which the prevailing party may be entitled.
VI. Representations and Warranties.
A. You Represent. You represent and warrant to ProPay Canada at the time of
execution and during this term of this Agreement the following:
1. Information. All information contained on the Application or any other
document submitted to ProPay Canada is true and complete.
(a) If an Individual Account: (i) you are at least the age of majority in
the province of your residence; (ii) have provided ProPay Canada all
information required for financial account holder identification and
verification; and, (iii) you are a sole proprietorship validly existing in
Canada or its territories.
(b) If an Entity Account: (i) the entity was validly formed, registered and
is in good standing in at least one of the provinces of Canada or under
applicable federal law; (ii) you have provided the complete name of the
entity described in (b)(i) or its registered dba; (iii) you have provided
ProPay Canada with the entity's Business number (Corporate or Partnership
number) and/or GST number; and, (iv) you warrant that you are an authorized
representative of the entity.
2. No Litigation. There is no action, suit or proceeding pending or to your
knowledge threatened which if decided adversely would impair your ability
to carry on your business substantially as now conducted or which would
adversely affect your financial condition or operations. You have never
been placed on the MasterCard MATCH system or the Combined Terminated
Merchant File, and if so, you have disclosed this to ProPay Canada.
3. Transactions. All transactions are bona fide. No transaction involves
the use of a card for any purpose other than the purchase of goods or
services from you and does not involve a Cardholder obtaining cash from you
unless allowed by the Rules and agreed in writing with ProPay Canada.
B. Authority. You have the authority to execute and perform the terms and
conditions of this Agreement and you represent and warrant that you will be
bound by all provisions of this Agreement, and that you are authorized to
execute any documents and to take any action which may be required by
ProPay Canada now or in the future. By checking the box on the account
application and thereby submitting the application, or upon your first
account transaction, you hereby acknowledge that you have read and
understand the terms and conditions of the Agreement, Electronic Funds
Transfer Agreement, the Electronic Communications Agreement, Privacy
Policy, Terms of Use, Disclosure, and other Policies, as applicable, which
have been set forth above, and that you agree to be bound by the terms and
conditions of these documents. Further, you understand that your act of
checking the box on the account application and submitting the application
represents your electronic signature and represents your authorization to
be bound by the aforementioned Agreement, Electronic Funds Transfer
Agreement, the Electronic Communications Agreement, Privacy Policy, Error
Resolution Policy, Terms of Use, Disclosure, and other policies, as
applicable, and your intent that these documents have legal and binding
effect. You also hereby represent and warrant that this Agreement will not
violate any law, or conflict with any other agreement to which you are
subject.
VII. INFORMATION AUTHORIZATION.
A. Authorization. You authorize ProPay Canada to make, from time to time,
any business and personal credit and other inquiries considered necessary
to review the acceptance and continuation of this Agreement. You also
authorize any person or credit reporting agency to compile information to
answer those credit inquiries and to furnish that information to them.
B. Documents. You will provide ProPay Canada financial statements and other
financial, customer and personal information as requested from time to
time.
C. Verification of Personal Information. Pursuant to applicable provincial,
state, and Canadian and U.S. federal law, the identity of each applicant
will be verified. You expressly consent to ProPay Canada's collection and
use of personal information as part of ProPay Canada's identity
verification and credit investigation, and acknowledge that the social
insurance number (the submission of which is entirely OPTIONAL and will not
affect the status of services provided by ProPay Canada to you), date of
birth, and driver's license (if applicable) you provide will be used for
credit matching and identity verification. You agree to give ProPay Canada
any information and/or documentation ProPay Canada may reasonably request
to verify your identity. You also authorize us to exchange your personal
information with or receive personal information from financial
institutions and associations for the purpose of providing you with a
ProPay Canada Account and for security measures in relation to your
Account. ProPay Canada reserves the right to decline your application if
ProPay Canada is unable to fully verify your personal information.
D.
ELECTRONIC COMMUNICATIONS AGREEMENT. YOU AGREE TO TERMS OF THE PROPAY
CANADA ELECTRONIC COMMUNICATIONS AGREEMENT AS AMENDED FROM TIME TO TIME
("E-COMMUNICATIONS AGREEMENT"), WHICH MAY BE OBTAINED UPON REQUEST OR
AT:
www.propay.ca/legal/epolicy.aspx
, AND WHICH IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE AS IF
FULLY SET FORTH HEREIN.
E. Privacy Policy. You agree to the terms of the ProPay Canada Privacy
Policy as amended from time to time ("Privacy Policy") , which may be
obtained upon request or at:
www.propay.ca/legal/privacy.aspx
, and which is incorporated into this Agreement by reference as if fully
set forth herein.
VIII. PERSONAL GUARANTEE.
A. Inducement. Except in the Province of Alberta, Canada, as a primary
inducement to ProPay Canada to enter into this Agreement, by electronically
signing the Application, you jointly and severally, unconditionally and
irrevocably, guarantee the continuing full and faithful performance and
payment by you of each of its duties and obligations to ProPay Canada
pursuant to this Agreement, as it now exists or amended from time to time,
with or without notice. Guarantor understands further that ProPay Canada
may proceed directly against the Guarantor without first exhausting its
remedies against any other person or entity responsible therefore to it or
any security held by ProPay Canada. This guarantee will not be discharged
or affected by the death of the Guarantor, will bind all heirs,
administrators, representatives and assigns and may be enforced by or for
the benefit of any successor of ProPay Canada. Guarantor understands that
the inducement to ProPay Canada to enter into this Agreement is
consideration for the guaranty, and that this guaranty remains in full
force and affect even if the Guarantor receives no additional benefit from
the guaranty.
IX. THIRD PARTIES, HARDWARE AND SOFTWARE REQUIREMENTS.
A. Responsibility for Third Party Compliance. You may be using special
services or software provided by a third party to assist you in processing
transactions, including authorizations and settlements, or accounting
functions. You are responsible for ensuring compliance with the
requirements of any third party in using their products. This includes
making sure you have and comply with any software updates. ProPay Canada
has no responsibility for any transaction until that point in time ProPay
Canada receives data about the transaction.
B. Responsibility for Hardware and Software. You are required to provide
and maintain your own hardware and software. For access to ProPay Canada's
website via the internet, at a minimum, you must provide: (1) An Internet
browser that supports 128-bit encryption, such as Netscape Navigator
version 4.0 or above or Internet Explorer version 4.0 or above, (2) a
personal computer, operating system, and telecommunications connections to
the Internet capable of supporting the foregoing, (3) Sufficient electronic
storage capacity on your computer's hard drive or other data storage unit
and (4) a printer that is capable of printing from the applicant's browser
and e-mail software. It is highly recommended that you use a firewall and
frequently updated anti-virus software.
X. TERM AND TERMINATION.
A. Term. The Agreement will become effective on the date the ProPay's
sponsor bank accepts this Agreement ("Effective Date"). The Agreement will
remain in effect for 1 year ("Initial Term") and is renewable for
successive 1 year terms ("Renewal Term"), as set forth herein, unless
terminated as set forth below. The Initial Term as referenced above shall
expire one calendar year from the Effective Date or Renewal Term of the
Agreement, pursuant to Mountain Time (e.g. if the Effective Date on an
Agreement is April 12, the Account shall expire at 12:00 a.m. MT on April
13 of the following year).
B. Termination. This Agreement may be terminated by any party effective at
the end of the Initial or any Renewal Term by providing notice of intent
not to renew at least 90 days prior to the Expiry of the then current term.
Fees for early termination will apply in the event Merchant terminates
prior to completing the first 12 months of the Initial Term. Such early
termination fees will be calculated by taking the average monthly
processing fees incurred under the Agreement multiplied by the number of
months remaining in the first 12 months of the Initial Term. Additionally:
(a) this Agreement may be terminated at any time by ProPay Canada with or
without cause, and without prior notice; and, (b) this Agreement may be
terminated by you in the event of a material breach of the terms of this
Agreement by ProPay Canada, provided you give ProPay Canada written notice
of any alleged breach and such breach remains uncured for a period of 30
days following receipt of written notice by the breaching party. ProPay
Canada's rights of termination under this Agreement are cumulative. A
specific right of termination shall not limit any other right of ProPay
Canada to terminate this Agreement expressed elsewhere. Notice of
termination may be given orally or in writing, but if given orally shall be
confirmed in writing. Termination shall be effective on the date specified
by the written notice.
1. Independent Sales Consultants - Affiliated Company (As Applicable).
Termination of this Agreement shall coincide with the termination of your
Independent Consultant Agreement with your Affiliated Company, as
applicable. If you continue to utilize the payment services provided
pursuant to this Agreement beyond the termination of your relationship with
your Affiliated Company, you hereby agree to be bound by the terms and
conditions of the Agreement, as well as the Policies referenced and
incorporated herein, as it is currently posted at the ProPay Canada
website.
C. ProPay's sponsor bank Termination of Merchant Account. The ProPay's
sponsor bank hereby reserves the right for the immediate termination of
your merchant account and relationship due to significant circumstances
and/or activities by you which create harm or loss to the goodwill of the
attendant Association system. Circumstances under which the ProPay's
sponsor bank may invoke this right include, but are not limited to, when
your practices and exception item activity are such that they create a
substantial risk of loss and/or harm to the payment system, including
illegal activity, high risk transactions and activities in contravention of
the High Risk Transactions/ Acceptable Use Policy described in this
Agreement herein.
D. Action Upon Termination and Unclaimed Property. You acknowledge that
ProPay Canada is required to report your name to Visa, MasterCard, and
American Express when your Account is terminated due to the reasons listed
in the Rules and Regulations issued by the applicable Association. You will
waive and hold harmless ProPay Canada for all claims and liabilities you
may raise as a result of such reporting. Upon the Expiry of the applicable
time period regarding account inactivity as mandated by applicable federal
or provincial law, your ProPay Account will be formally terminated. Thirty
(30) days after the termination of your ProPay Canada Account, funds due to
you from a province or other governmental body as a result of any unclaimed
property or similar laws, subject to the Processing Fee described in
Section IV.I above. Failure to present any transaction for clearing and
settlement or failure to add funds or access funds in your ProPay Canada
Account by means of a prepaid debit or stored value card, as applicable, or
by means of an electronic transfer as defined in the Electronic Funds
Transfer Agreement, for the applicable time period as mandated by
applicable federal or provincial may result in your ProPay Account being
terminated.
E. Terminated Merchant Account. All your obligations regarding accepted
Sales Transmittals will survive termination of this Agreement. You must
maintain a sufficient amount with respect to your ProPay Canada Account in
the ProPay's sponsor bank Operating Account and the Reserve Account to
cover all chargebacks, deposit charges, refunds and fees incurred by you
for a reasonable time, but in any event not less than the time specified in
this Agreement. Any balance remaining after chargeback rights have expired
and all other amounts owed have been paid will be disbursed to you. . If
the amounts, as set forth above, are not adequate you will pay ProPay
Canada the amount you owe ProPay Canada upon demand, together with all
costs and expenses incurred to collect that amount, including attendant
collection costs and reasonable attorneys' fees.
F. Liquidated Damages. If this Agreement is terminated by ProPay Canada
because ProPay Canada reasonably determines that you have misrepresented
your true identity or that you have provided false information to ProPay
Canada, you will owe ProPay Canada, as liquidated damages and not a
penalty, a misrepresentation fee equal to your maximum monthly processing
limit multiplied by 2. You agree that this amount is reasonable in light of
the anticipated harm caused by your false information.
XI. COMPLIANCE; LAWS AND RULES.
A. Operating Rules. You agree to comply with all rules and operating
regulations issued from time to time by MasterCard, Visa, and American
Express, and any policies and procedures provided by ProPay Canada,
including those set forth in the Operating Guide ("Rules"). The Rules are
incorporated into this Agreement by reference as if they were fully set
forth in this Agreement herein. An abridged version of the MasterCard rules
may be viewed at
www.mastercardmerchant.com
.
B. Canadian, Provincial, and Local Laws. You represent and warrant that you
are not a person or entity listed on the List of Names made subject to the
Regulations Establishing a List of Entities pursuant to subsection 83.05(1)
of the Criminal Code of Canada and/or the United Nations Suppression of
Terrorism Regulations, and/or any other such list or regulation that may
exist now or in the future (Prohibited Lists). The Prohibited Lists under
this section may be subject to change from time to time, with or without
notice to you. Our acceptance of you as a merchant that is permitted to
accept the Card is conditional upon the truthfulness of such representation
and warranty. If such representation and warranty becomes untrue at any
time, we may immediately terminate this Agreement. You further agree to
comply with all applicable Canadian, provincial, local laws, rules and
regulations ("Laws"), as amended from time to time affecting acceptance of
the cards, processing of card transactions, and the transactions
contemplated by this Agreement. You will assist ProPay Canada in complying
in a complete and timely manner with all Laws and Rules now or hereafter
applicable to any Card transaction or this Agreement. You will execute and
deliver to ProPay Canada all such instruments they may from time to time
reasonably deem necessary.
XII. GENERAL PROVISIONS.
A. Use of Trademarks. Your use of Visa, MasterCard, and American Express
marks will fully comply with the Rules. Your right to use the Visa,
MasterCard, and American Express marks will cease upon termination of this
Agreement. Your use of Visa, MasterCard, and American Express or other
cards' promotional materials will not indicate, directly or indirectly,
that Visa, MasterCard, or American Express endorse any goods or services
other than their own and you may not refer to Visa, MasterCard, or American
Express in stating eligibility for your products or services.
B. Confidentiality.
1. Cardholder Information. You will not disclose to any third party
Cardholders' account information or other personal information, except to
an agent of yours assisting in completing a Card transaction, or as
required by law. You must keep all systems and media containing account,
Cardholder or transaction information (physical or electronic, including
but not limited to account numbers, and card imprints,) in a secure manner,
to prevent access by or disclosure to anyone other than your authorized
personnel. You must destroy in a manner that will render the data
unreadable all such media that you no longer deem necessary or appropriate
to store (except for Sales Transmittals maintained in accordance with this
Agreement, Laws, and the Rules). Further, you must take all steps
reasonably necessary to ensure Cardholder information is not disclosed or
otherwise misused. You may not retain or store magnetic stripe or CVV2,
CVC2, or CID data after authorization.
2. ProPay's sponsor bank Notification. You must notify the ProPay's sponsor
bank in the event you invoke the services and/or use of any agent which
will have access to Cardholder data. Association regulations mandate that
all agents that access, store, transmit, or process Cardholder data must be
registered and comply with the established data security standards of PCI,
as further set forth below. ProPay's sponsor banks must ensure only agents
that have been properly registered with the Association are utilized by
you.
3. Prohibitions. You will not use for your own purposes, will not disclose
to any third party, and will retain in strictest confidence all information
and data belonging to or relating to the business of ProPay Canada
(including without limitation the terms of this Agreement), and will
safeguard such information and data by using the same degree of care that
you use to protect your own confidential information. You authorize and
consent to the disclosure of your name and address to the following third
parties: Wells Fargo Merchant Services; Wells Fargo Bank; Wells Fargo
Financial Corporation Canada, Laurentian Bank of Canada; Visa Canada, Inc.;
MasterCard Worldwide, Inc.; AMEX Bank of Canada; and, TransUnion Canada for
the purposes of processing the transactions provided for under this
Agreement.
4. PCIDSS and Confidentiality Requirements. In addition to the security and
confidentiality requirements of this Agreement as set forth above, you
shall, at all times, with respect to Cardholder data, transaction
information, and storage and disclosure of said data and information,
comply with the Cardholder information security and confidentiality
requirements of Payment Card Industry Data Security Standards (hereinafter
referred to as "PCIDSS") as applicable, as mandated by the Associations and
sponsor banks with whom ProPay Canada is affiliated through its regular
course of business.
(a) Compromise Notification. In the event of breach or intrusion of,
compromise or otherwise unauthorized access to Cardholder account
information which is stored and in the possession of you, you shall
immediately notify ProPay Canada, and provide ProPay Canada with
information relating and pertaining to the type, nature and extent of
Cardholder account information which has been compromised. Further, you
shall cooperate with ProPay Canada regarding reasonable requests for
information and details regarding the compromise of Cardholder account
information. You shall make all reasonable, good faith efforts to remedy
and address the cause of said breach, intrusion, compromise or otherwise
unauthorized access to Cardholder account information.
(b) Continuity Procedures. You shall maintain industry "best practices"
regarding continuity procedures and systems to ensure security of
Cardholder account information in the event of a disruption, disaster, or
failure of your respective data storage system and/or facility.
C. Miscellaneous Provisions.
1. Entire Agreement. This Agreement, including the Fee Disclosure Schedule,
Policies, the completed Application, the Rules, and any amendment or
supplement to this Agreement or other referenced agreements, made in
accordance with the procedures set forth in Section XII.C.10 below, all of
which are incorporated into this Agreement, constitutes the entire
agreement between the parties, and all prior or other agreements or
representations, written or oral, are superseded by this Agreement.
2. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Utah, except where Federal law is
applicable.
3. Jurisdiction/Waiver of Jury Trial.
THE PARTIES AGREE THAT ALL PERFORMANCES AND TRANSACTIONS UNDER THIS
AGREEMENT WILL BE DEEMED TO HAVE OCCURRED IN UTAH AND THAT YOUR ENTRY
INTO AND PERFORMANCE OF THIS AGREEMENT WILL BE DEEMED TO BE THE
TRANSACTION OF BUSINESS WITHIN THE STATE OF UTAH. YOU AND PROPAY CANADA
CONSENT TO AND AGREE THAT, THE EXCLUSIVE JURISDICTION AND VENUE FOR ANY
DISPUTES HEREUNDER SHALL BE AN APPROPRIATE FEDERAL OR STATE COURT
LOCATED IN SALT LAKE CITY, UTAH. YOU AND PROPAY CANADA WAIVE ANY RIGHT
TO TRIAL BY JURY IN ANY ACTION CONCERNING ANY RIGHTS OR DISPUTES UNDER
THIS AGREEMENT.
4. Construction. The headings used in this Agreement are inserted for
convenience only and will not affect the interpretation of any provision.
The language used will be deemed to be the language chosen by the parties
to express their mutual intent, and no rule of strict construction will be
applied against any party.
5. Assignability. This Agreement may be assigned by ProPay Canada, but may
not be assigned by you directly or by operation of law, without the prior
written consent of ProPay Canada. If you nevertheless assign this Agreement
without ProPay Canada's consent, the Agreement will be binding on the
assignee. If you sell your business, and the new owners incur chargebacks,
the original owner and all original guarantors will be held personally
liable for all chargebacks and any other liabilities of the new owners.
6. Notices and Marketing messages. Any written notice under this Agreement
will be deemed given and delivered upon the earlier of: (a) actual receipt
or (b) five days after being deposited in the Canadian mail, and addressed,
if to ProPay Canada, to: ProPay Canada, Inc., 3400 N Ashton Blvd, Suite
200, Lehi, UT 84043 USA, and if to the other parties: to the last address
shown on the records of the sender or (c) one (1) business day after being
sent by email or other electronic communication if to you at the last email
address provided by you to ProPay Canada and if to ProPay Canada at
www.propay.ca/customerservice
. From time to time ProPay Canada will use the last email address provided
by you to ProPay Canada to send you information about the Services. Such
messages may contain updates and/or marketing messages about (i) Services
you have already enrolled in or (ii) other Services that you have not
enrolled in or that may be available at a future date. You expressly
consent to ProPay Canada sending such marketing messages to your email
account on file regarding the Services. If you wish to opt out of marketing
messages that do not relate to Services you are currently enrolled in,
please either (1) email
customerservices@propay.com
and indicate your desire to opt out of such marketing messages, or (2)
click the unsubscribe link found at the bottom of each marketing message.
Unsubscribe requests will be honored within ten (10) business days of
receipt. For the avoidance of doubt, you will not be able to opt out of
messages that provide information about Services you are enrolled in, as
such messages are necessary to keep you apprised of updates to such
Services.
7. Bankruptcy. You will immediately notify ProPay Canada of any bankruptcy,
receivership, insolvency or similar action or proceeding initiated by or
against you. You will include ProPay Canada on the list of creditors
whether or not a claim may exist at the time of filing, and failure to do
so will be cause for immediate termination or any other action available to
ProPay Canada under applicable Rules or Law. You acknowledge that this
Agreement constitutes an executory contract to make a loan, or extend other
debt financing or financial accommodations to or for the benefit of you,
and, as such, cannot be assumed or assigned in the event of your
bankruptcy.
8. Attorneys' Fees. You will be liable for and will indemnify and reimburse
ProPay Canada for all attorneys' fees, with our without suit, court costs,
collection agency fees not to exceed 50% of the amount owed, and other
costs and expenses paid or incurred by ProPay Canada in the enforcement of
this Agreement, or in collecting any amounts due from you to ProPay Canada
or resulting from any breach by you of this Agreement.
9. Customer Contact. You authorize ProPay Canada to contact your customers
or their bank if they determine that such contact is necessary to find out
information about any payment transaction between you and the customer.
Also, you will provide to ProPay Canada, upon ProPay Canada's request,
contact information for your customers as deemed necessary and reasonable
by ProPay Canada.
10. Amendments. This Agreement and the Policies referenced and incorporated
herein may be amended, modified or revised at any time, without notice.
While ProPay Canada may notify you as the Agreement and/or Policies
referenced herein are modified, it is your sole responsibility to review
and maintain familiarity with the Agreement and Policies, including any
changes that may be made to these documents, respectively, from time to
time thereto. The amendments to the Agreement and/or Policies referenced
herein will become effective and binding upon you immediately and
contemporaneously as the amendments are published to the ProPay Canada
website (www.propay.ca). In the
event you do not agree to the aforementioned amendments and do not wish to
be bound the terms and conditions thereto, you shall provide written notice
to ProPay Canada (including by submitting to ProPay Canada Customer Service
at (
www.propay.ca/customerservice
) by providing your name, your current email address on file with ProPay
Canada, the last four (4) digits of your Social Insurance Number (OPTIONAL)
and/or other information reasonably necessary to verify your identity so
that ProPay Canada may process your request, and a statement that you do
not agree to the terms. If you do not agree to the terms of the amendment,
your account will be terminated and closed. Notwithstanding the foregoing,
(a) changes to fees authorized by this Agreement or in the Pricing
Disclosure Statement will be effective 90 days after giving of notice to
you and (b) any fee increase, change in Rules or other requirement imposed
by Visa, MasterCard, or American Express may be passed on to you and will
be effective 90 days after giving of notice to you. You may cancel this
Agreement without penalty if (a) there is a fee increase not included in
the original agreement; (b) there is a new fee related to debit or credit
transactions; or (c) ProPay does not pass along savings received from the
Card Brands. You must provide notice of such termination in writing in
accordance with section 6 (Notices).
11. Severability and Waiver. If any provision of this Agreement (including
the Pricing Disclosure Statement) is held invalid, illegal, void or
unenforceable by reason of any judicial decision, all other provisions of
this Agreement shall nevertheless remain in full force and effect. No
course of dealing, delay or failure to enforce any provision or exercise
any right under this Agreement, by ProPay Canada or ProPay's sponsor bank
shall be construed as a waiver or estoppel of such provision or right, nor
shall it amend this Agreement or affect the validity of this Agreement or
curtain the ability of any party to enforce such provision or exercise such
right in the future. All waivers must be signed by ProPay Canada.
12. Independent Contractors. ProPay Canada, ProPay's sponsor bank, and You
are and will remain independent contractors and none will be considered an
employee, joint venturer, or partner of the other.
13. Survival. All Sections of the Agreement (I through XII hereof),
Policies and the applicable Pricing Disclosure Statement in effect upon the
date of termination shall survive termination of this Agreement.
14. Arbitration. Disputes involving American Express are governed by the
American Express Addendum below. With respect to all other disputes, ProPay
Canada, ProPay's sponsor bank and you agree that any one of them may
require that any claim or dispute ("Dispute") under this Agreement shall be
resolved exclusively and finally by binding arbitration, administered by
the National Arbitration Forum ("NAF") and conducted under its rules,
except as otherwise provided below. For the purposes of this paragraph,
"Dispute" means any dispute, controversy, or claim arising out of or
relating to this Agreement, negotiations leading to the Agreement, its
interpretation, any act of any party related to the Agreement, or the
breach, termination, applicability or validity thereof. The arbitration
will be conducted before a single arbitrator, and will be limited to your
Dispute. You may not bring a Dispute on behalf of others or join others in
any similar claims (you may not bring or participate in a class action). As
the parties to the Dispute agree, the arbitration shall be held in Utah by
submission of documents, by telephone, online or in person. Any decision
rendered in such arbitration proceedings shall be final and binding on each
of the parties, to the Dispute and judgment may be entered thereon in any
court of competent jurisdiction. Should any party bring a Dispute in a
forum other than NAF, the arbitrator may award the other party or parties
their reasonable costs and expenses, including actual attorneys' fees,
incurred in staying or dismissing such other proceedings or in otherwise
enforcing compliance with this dispute resolution provision. Each party
understands that it would have had a right to litigate disputes through a
court, and that each has expressly and knowingly waived that right and
agreed to resolve any Dispute through binding arbitration. The parties
intend that the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.)
shall govern this arbitration provision. Information on arbitration
procedure may be obtained from the NAF on-line at www.arb-forum.com,
by calling 800-474-2371 or by writing to P.O. Box 50191, Minneapolis, MN,
55405.
American Express® Card Acceptance Addendum
This Addendum applies only if you accept American Express Cards. If there
is a conflict between any of the following sections and any other section
of the Terms and Conditions as they apply to American Express Cards, the
following sections will govern. Bank is not a party to the following
sections.
1.
American Express Compliance
. You agree to comply with all Applicable laws, rules and regulations,
including the American Express Merchant Operating Guide requirements, which
are incorporated into this Agreement by reference as if they were fully set
forth in the Agreement. The American Express Merchant Operating Guide may
be viewed at:
www.americanexpress.com/merchantopguide
.
2.
High Charge Volume Sponsored Merchants.
In the event that your Estimated Annual Charge Volume becomes $1,000,000
USD or greater, Sponsored Merchant may, in the discretion of Propay, become
a direct Card-accepting merchant under the standard American Express
acceptance program and cease to be a Sponsored Merchant under Payment
Service Provider. As a direct Card-accepting merchant, you will be bound by
the then-current American Express Card acceptance agreement and American
Express's Discount and other fees and assessments shall apply.
3.
Processing Restrictions.
You are prohibited from processing Transactions or receiving payments on
behalf of, or (unless required by law) re-directing payments to any other
party.
4.
Third Party Beneficiary Rights.
a. You confer on American Express the beneficiary rights, but not
obligations, to your Agreement and subsequent addendums (collectively the
"Agreement") between you and Payment Service Provider and, as such,
American Express has the express right to enforce the terms of the
Agreement against you.
b. You warrant that you do not hold third party beneficiary rights to any
agreements between Payment Service Provider and American Express and at no
time will attempt to enforce any such agreements against American Express.
5.
American Express Liability.
YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS
AFFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO SPONSORED MERCHANT
FOR ANY DAMAGES, LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT,
SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY
KIND (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT
LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER
THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
6.
Merchant Website Display Requirements.
You will adhere to the following website information display guidelines in
the event you have a website and/or operate an e-commerce business (" Merchant Website"). The Merchant Website must display the
following:
a. An accurate description of the goods/services offered, including the
currency type for the Transaction (e.g., U.S. Dollars). Note: Transaction
currency must be in U.S. Dollars.
b. Yours physical address in the U.S.
c. An email address or telephone number for customer service disputes.
d. Return/refund policy.
e. A description of your delivery policy (e.g., no overnight delivery).
f. A description of your security practices (e.g., information highlighting
security practices you use to secure Transactions on your systems,
including Transactions conducted on the Internet).
g. A statement of known export restrictions, tariffs, and any other
regulations.
h. A privacy statement regarding the type of personal information collected
and how the information is used. Additionally, you must provide to
customers the option to decline being included in marketing campaigns or
having their personal information included on lists sold to third parties.
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