Terms and Conditions

Master Services Agreement

IMPORTANT. Your use of the invoicing and payment services offered by VersaPay will be governed by this Agreement and the attached Schedules between you and VersaPay. Please read this Agreement carefully before you use the Services. By signing up for and using the Services, you agree to all the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you may not use the Services. We recommend you periodically review this Agreement and the policies referenced in it to understand the terms and conditions that apply to the Services and your use of them.

This Agreement, and important communication about this Agreement including amendments of this Agreement and Schedules that form part of this Agreement, will appear on the “Legal Agreements” page of our Website located at http://versapay.com/legal (the “Website“).

You accept responsibility for reviewing all communication about this Agreement on our Website and acknowledge you will be deemed to have agreed to the terms of amendments and Schedules communicated on our Website if you continue to use the Services.

ARTICLE 1 – SCOPE

1.1   Definitions and Interpretation.  All capitalized terms used in this Agreement will have the meanings given to them in Schedule 1 (Definitions and Interpretation). The rules of interpretation set forth in Schedule 1 (Definitions and Interpretation) will also apply to this Agreement.

1.2   Schedules and Annexed Documents.  All Schedules which are annexed or deemed to be annexed hereto from time to time will form an integral part of this Agreement and the provisions found in these Schedules will have the same legal effect as if expressly set forth in the main body of this Agreement. The following documents referred to herein form an integral part of this Agreement and are hereby incorporated into this Agreement on the same basis: the PAD Agreement, and VersaPay’s Privacy Policy and Service Level Agreement.

1.3   Amendments.  We may amend this Agreement (for greater certainty, including all documents and Schedules referred to in Section 1.2 above) or any part of it from time to time at our discretion by giving 15 days prior written notice to you, which we will deliver by email to the address designated to receive notices for your Account. We will also post such amendments on the http://versapay.com/legal website. You acknowledge that your continued use of the Services after notice of an amendment will constitute your agreement to be bound by the amendment. If you do not wish to accept the amended Agreement, you must notify us immediately that you are terminating this Agreement and you must close your Account. Unless the Agreement is terminated by you, amendments, renewals or extensions will be effective on the later of the date that is specified in the notice to you and 15 days from the date that you access your Account and the notice is presented to you, whichever is earlier.  For greater certainty, it is your responsibility to review the Website for changes to this Agreement.

ARTICLE 2 – ENROLLMENT AND YOUR ACCOUNT

2.1   VersaPay Service.  Subject to the terms of this Agreement and when offered by VersaPay, you may complete an application to use the Services to (i) send and receive invoices, (ii) make and receive payments to and from merchants and consumers who are enrolled to use the Services through a VersaPay Account, (iii) to make and receive payments to and from third parties who do not have a VersaPay Account, and (iv) to make recurring payments to third party accounts (such as payroll) on behalf of a Merchant.

2.2   Account.  Once your application to use the Services has been accepted by VersaPay, VersaPay will establish your VersaPay Account for your use of the Services. You are solely responsible for the accuracy of your application and for the information in your Account Profile, and agree to keep it current.  You represent and covenant that you have all rights and title to use and provide such information to us.  If we become aware of any change in this information, we may update your Account and we will notify you of such change either by Electronic Communication or by mail at the address provided in your Account.

2.3   Type of Account.  You may choose to open either a Merchant Account or a Consumer Account. By opening a Merchant Account and accepting the terms as outlined in this Agreement, you attest that you are not establishing the Merchant Account primarily for personal, family, or household purposes. You may only hold one Merchant Account for “business” purposes.

2.4   Eligibility.  To be eligible for a Merchant Account, you must be either (a) a corporation incorporated and qualified to carry on its business under the laws of Canada or one of its provinces or territories, (b) a partnership formed and qualified to carry on its business in Canada, or (c) a sole proprietorship qualified to carry on its business in Canada. To be eligible for a Consumer Account, you must be over 18 years of age.

2.5   Identity Authentication.  You authorize VersaPay, directly or through third parties, to make any inquiries we consider necessary to confirm your identity or any information you provide to us. You also agree to cooperate with any test or investigation of your identity and/or transactions you do to ensure compliance with Applicable Law. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report and verifying your information against third party databases or through other sources.

2.6   Merchant Eligibility for using VersaPay Credit Card Payment Services.  If you open a Merchant Account and elect to have VersaPay host the payment page for processing and collecting your credit card payments from third parties, you agree and represent that you are a party to a valid merchant cardholder acceptance agreement with each credit card issuer that you direct VersaPay to host on their payment page for processing third party payments. Each such merchant cardholder acceptance agreement permits and directs the credit card issuer to settle with VersaPay as agent for the Merchant. If your merchant cardholder acceptance agreement changes, you must notify VersaPay immediately or it may affect your ability to receive payments.

2.7   Your Merchant Account.  You have the sole responsibility to verify VersaPay’s list of merchant card processors to be used under terms of this Agreement to determine if VersaPay can properly transmit the necessary credit card information to your credit card processor. You acknowledge that this list will be modified by VersaPay from time to time and must be verified by you prior to you using the Services. You have the sole responsibility for obtaining the proper authorization from your own credit card processor and/or settlement bank to be able to use your Merchant Account for key entry transactions and transactions being processed over the internet or online. You will be solely responsible for credits, returns, disputes and all costs associated with data transmissions. You will be solely responsible to obtain accurate credit card and EFT information and authorization from your customers, and will transmit said information to VersaPay via the internet or other service originally agreed upon by all parties.  In the event you apply for and are approved for merchant account services, your use of such services will be governed by the terms of the applicable merchant account services agreement.  Merchant account services are not covered by this Agreement.

ARTICLE 3 – SENDING AND RECEIVING INVOICES THROUGH OUR EIPP SYSTEM

3.1   Invoice Template.  We will work with you to create an electronic template for your invoices to be delivered through our EIPP System. Once a template has been created for you, the EIPP system uses this template along with your Invoice Data every billing period to create electronic invoices that can be sent to your customers.

3.2   Responsibility for User Content.  You agree that you are solely responsible for the accuracy and completeness of all User Content that you provide for the EIPP System.

3.3   Invoice Receipt Notification.  We will send you notification by Electronic Communication when you receive a new invoice. It is your sole responsibility to make or schedule a payment for any such invoice.

ARTICLE 4 – MAKING PAYMENTS OR SENDING FUNDS WITH YOUR VERSAPAY ACCOUNT

4.1   Payment Limits.  We may, at our discretion, impose limits on the amount of money you can pay or send through the Services. You can view your sending limit, if any, by logging into your Account and clicking on the “View Limits” link on the “Account Overview” page. We may increase your sending limits in our sole discretion.

4.2   Refused and Refunded Transactions.  When you send money, the recipient is not required to accept it. You agree that you will not hold VersaPay liable for any damages resulting from a recipient’s decision not to accept a payment made through the Services. We will return any unclaimed, refunded or denied payment to the original Payment Method within 30 Days of the date you initiated that payment. If a payment is unclaimed, denied or refunded for any reason, we will return the money.

4.3   Third Party Processing Delay.  When you use the Services to send a payment to non VersaPay Accounts, you are providing authorization to all third parties involved in the payment to process your payment and complete the transaction. VersaPay will hold this payment as pending until the third party processes your payment. Some third parties may delay processing your payment. In such an instance, your authorization will remain valid for up to 30 Days.

4.4   Currency Conversion.  If your payment requires a currency conversion, the amount of the exchange rate (which includes a Currency Conversion Fee) will be determined by VersaPay at the time the third party processes your payment and completes the transaction.

4.5   Arranging Recurring Payments.  You may request or approve Recurring Payments by logging in to your Account, selecting “Profile”, selecting “Recurring Payments” or “Pay List”, and setting a Preferred Funding Method.

4.6   Cancelling Recurring Payments.  You may cancel a Recurring Payment at any time up to 3 Business Days prior to the date the payment is scheduled to be made. To cancel a Recurring Payment, log in to your Merchant Account, access the My Account tab, then access the Profile tab, then access the Financial Information column and click on either “Pay List” or “Recurring Payments” and follow the instructions to cancel the payment. In addition, if you cancel a Recurring Payment you may still be liable to the merchant for the payment and be required to arrange to pay the merchant another way.

4.7   Payment Review.  Payment review is a process by which VersaPay applies risk assessment criteria to certain payments. Payment transactions that are identified as potentially high-risk transactions may be delayed and held by VersaPay while VersaPay reviews the payment. In cases involving payments to a non VersaPay Account, VersaPay will provide notice to the third party of a delay in payment. VersaPay will conduct a review and either clear or cancel the payment. If the payment is cleared, VersaPay will provide notice to the third party. Otherwise, VersaPay will cancel the payment and the funds will be returned to your Merchant Account. VersaPay will provide notice of a cancelled payment to you by email and/or in the transaction history shown in your Merchant Account.

4.8   Taxes.  It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. You agree that VersaPay is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.

ARTICLE 5 – FUNDING YOUR PAYMENTS

5.1   Adding Funds to Your Balance. To authorize VersaPay to add funds to Your Balance, you must log in to your Account and complete the applicable information fields. Adding funds is a form of Recurring Payment that will be followed, on a sporadically-recurring or regularly-recurring basis as you specify, to transfer funds to VersaPay for credit to Your Balance.

5.2   Default Funding Method.  Each time you make a payment request, you will be provided with a summary of Your Balance. Unless you have specified a Preferred Funding Method in your Account Profile, VersaPay will use Your Balance as the default Payment Method for the transaction. You may select a different payment method for the transaction on the “Review Your Payment” page by clicking on the link to change your payment method and selecting from the available Payment Methods.

5.3   Your Balance Insufficient.  If Your Balance is insufficient to fund your payment request and you have not specified a Preferred Funding Method, you will be notified by secure Electronic Communication (if applicable) and prompted to select an alternate Payment Method from the ones you have provided in your Account Profile.

5.4   Preferred Funding Method.  You may also specify a Preferred Funding Method in your Account Profile to set up a Recurring Payment for all future payments to a specified payee. See Section 4.5 (Arranging Recurring Payments).

5.5   Limitations on Preferred Funding Method.  VersaPay may limit the Preferred Funding Methods available for any transaction. Any of the Preferred Funding Methods may be limited at the discretion of VersaPay from time to time. Any limitations on the Preferred Funding Methods will be removed and/or amended at the discretion of VersaPay upon verification that the issues that caused the limitations to be implemented have been resolved. You will be notified of any such limitations at the time of your transaction. In this case, you may choose to continue with the transaction with the understanding that you may have fewer avenues available for dispute resolution should the transaction turn out to be unsatisfactory.

5.6   EFT Bank Transfers.  To authorize VersaPay to use an EFT for payments from your bank account as a payment method, you must complete the “Add Bank Account” section of your Account Profile prior to the first time an EFT is requested. For each EFT transaction requested by you, VersaPay will request (by secure Electronic Communication) you to authorize VersaPay to instruct the financial institution to make the requested payment by electronic transfer from your bank account in accordance with the bank account details you have provided in your Account Profile. Once you have provided your authorization for such electronic transfer, you will not be able to cancel the electronic transfer. You give VersaPay the right to resubmit any EFT you authorized that is returned for any reason.

ARTICLE 6 – RECEIVING PAYMENTS

6.1   Receiving Money.  Funds will be credited to Your Balance upon receipt of payments from (i) consumers who have a Consumer Account and making payment for products or services invoiced by you or requested by you, and (ii) other merchants who have a Merchant Account and are making payment for products or services invoiced by you or requested by you.

6.2   Request to Collect Funds.  To notify and collect funds from a VersaPay Account or a third party, you must either:

(a)     At the time of payment, direct your customer to our Website to authorize VersaPay as agent to collect the payment from the purchaser;

(b)     Log in to your Account and complete the information fields in the prescribed form (each a “Merchant Payment Request“). On your express instructions, VersaPay will send a notice (with or without an invoice attached depending on the option selected in the Merchant Payment Request) by Electronic Communication on your behalf, to each customer noted in the Merchant Payment Request notifying that customer of a request for payment to the Merchant; or

(c)     Send a notice by Electronic Communication (with an invoice if you are using the EIPP System) to your customer notifying them of a request for payment to you; or

Upon receipt of a request to collect payment or funds above, the consumer, merchant or third party will be directed to the Website to authorize VersaPay to add funds to Your Balance by one of the methods described in 6.3 (Receiving Funds from VersaPay Accounts) or 6.4 (Receiving Funds from Other Methods).

6.3   Receiving Funds from VersaPay Accounts.  Upon receipt of a request to collect funds in 6.2, to authorize VersaPay to add funds to Your Balance from another VersaPay Account, your customer will be directed to log into their VersaPay Account and select a funding method to make a payment against the notice or the invoice received from you.

6.4   Receiving Funds from Other Methods.  Upon receipt of a request to collect funds in Section 6.2, to authorize VersaPay to add funds to Your Balance, your customer will be directed to log on to the Website to:

(a)     complete and accept the PAD request to authorize VersaPay to initiate a PAD against your customer’s bank account, in accordance with the bank account details to be provided in the PAD request, and direct payment to you; or

(b)     Complete and accept the request to charge your customer’s credit card account or Visa/MasterCard-issued debit card on the VersaPay hosted payment page.

6.5   Direct Collection System.  To authorize VersaPay to add funds to Your Balance, you must log in to your Account and submit your account receivable collection information electronically in the prescribed form (each an “Auto Collection Request“), which includes direct authorization from your customer to direct VersaPay to act as agent for you to initiate a debit against the appropriate payment method and direct payment to you. The Auto Collection Request will include your customer’s authorization in the form of either:

(a)     a PAD request to authorize VersaPay to initiate a PAD against your customer’s bank account, in accordance with the bank account details to be provided in the PAD request; or

(b)     An authorization to charge a credit card account.

ARTICLE 7 – OPERATION OF ACCOUNT

7.1   VersaPay is Limited Agent.  VersaPay acts as your agent with respect to (a) the making of payments from your Merchant Account in accordance with your instructions, and (b) the receipt of payments to your Merchant Account. VersaPay will be the holder of record of your Account on your behalf, and deal with Your Balance and execute any documents in respect of Your Balance on your behalf, in accordance with this Agreement.

7.2   Trust Funds.  VersaPay confirms that it has no equitable or beneficial interest in Your Balance and that all such equitable and beneficial interest in Your Balance is exclusively yours. VersaPay confirms, and will acknowledge to any specified third parties, that it is strictly a bare trustee, agent or nominee with respect to Your Balance and has no beneficial interest in Your Balance. Other than otherwise set out in this Agreement, all benefits, income, rents, profits, advantages and other receipts of any nature or kind arising out of, or accruing from Your Balance belong legally and beneficially to you.

7.3   Balances.  Subject to Section 7.5, you do not need to maintain funds in Your Balance in order to make payments. If you do, VersaPay will hold these funds separate from its corporate funds. While your funds are in our custody, VersaPay will be entitled to and will combine your funds with the funds of other Users and place those funds in one or more Pooled Accounts, each of which will be in VersaPay’s name.

7.4   No Interest on Your Balance.  You acknowledge and agree that VersaPay will not pay you interest on Your Balance, if any, and will not allocate to you any portion of any interest earned by or accrued to VersaPay in respect of funds that you transfer to VersaPay to fund your payments which VersaPay may deposit in Pooled Accounts. Any interest or amounts earned by or accrued to VersaPay on such funds belong to VersaPay.

7.5   Negative Balances.  You are required to maintain sufficient funds in Your Balance to cover all fees, taxes and other amounts owed under Article 8. If Your Balance becomes negative for any reason, VersaPay will, without notice, set-off the negative balance against funds you receive or add into your Account.

7.5   Transaction History.  VersaPay will maintain a history of the transactions and transfers involving your Account. The information entered in the foregoing account record by VersaPay will constitute, in the absence of manifest error, prima facie evidence of the transactions, the transaction details and Your Balance.

7.6   Reconcile Transaction History.  You may view your transaction history by logging onto your Account and looking at your Transaction Details Page. VersaPay does not send paper statements by mail. You acknowledge and agree that you will review your transaction history, examine all transaction entries and, notify us within 30 Days of the date of an entry if you believe the entry is incorrect or if you believe VersaPay has not made an entry that should have been made. Transaction entries appearing in your transaction history will be finally and conclusively settled as accurate 30 Days after the date of the transaction entry.

7.7   Security Interest.  To secure your performance of this Agreement, you hereby grant to VersaPay a lien on and security interest in your Merchant Account.

7.8   Set-Off.  VersaPay may at any time and without notice apply any positive balance in Your Balance, or in any other account established by you with VersaPay or to which you are beneficially entitled, towards the payment of any obligation of yours (including any contingent obligation) to VersaPay, regardless of the currency. VersaPay may use all or any part of any such balance to buy any currencies that may be necessary to accomplish this.

7.9   Reserve.  In our sole discretion, we may place a Reserve on funds in your Account if we believe there may be a high level of risk associated with your Account. Funds that we place on Reserve in your Account will be shown as “pending”. If your Account is subject to a Reserve, we will provide you with notice specifying the terms of the Reserve, which may include that a certain percentage of any amounts received into your Account will be held for a certain period of time. We may change the terms of the Reserve at any time by providing you with notice of the new terms.

7.10       Return of Funds.

(a)     At your request – You may direct VersaPay in writing at any time to transfer unused funds in your Account to your bank account.

(b)     In our discretion – We reserve the right in our sole discretion to transfer unused funds in your Account to your bank account.

7.11       Limits on Return of Funds.  We will not return funds to you that are required by us to complete a pending payment you have requested us to make to a third party on your behalf. In addition, we may impose limits on the amount of funds returned to you in a single transfer and/or in multiple transfers within a period of time. You can view your withdrawal limits, if any, by logging into your Account and clicking on the “View Limits” link on the “Account Overview”. In addition, we may delay withdrawals of large sums of money while we screen for risk.

ARTICLE 8 – FEES

8.1   Fee Schedule.  You agree to pay us the Fees set out in Schedule 2 of this Agreement.

8.2   Fee Changes.  We may change any of the Fees on at least thirty (30) Days’ prior notice to you by posting a notice on the legal page of our Website. You will be notified of an update the next time you log in to your Account. Notwithstanding the foregoing, if our Fees change as a result of changes in pricing by any third party provider of a product or service used by you, such new prices will be applicable to you as of the effective date established by the third party provider, or as of any later date specified in our notice to you.

8.3   Taxes.  You agree to pay and are responsible for all applicable sales, use, excise, goods and services, value-added and like taxes for your use of the Services under this Agreement. All Fees are charged free and clear of, and without any deduction or withholding for and on account of, any taxes, duties or other deductions. Any such deduction or withholding, if required by the laws of any country, will be on your account and be borne by you.

8.3   Paying Fees.  You agree to allow VersaPay to debit Your Balance to collect Fees in connection with this Agreement as they are billed. All such debits will appear in your transaction history on your Account. If Your Balance is insufficient, you agree to allow us to use any other Payment Method provided in your Account.

ARTICLE 9 – YOUR CONDUCT

9.1   Conduct.  In connection with your use of our Website, your Account, or the Services, or in the course of your interactions with VersaPay, another User or a third party, you agree to comply with the following:

(a)  You will comply in all respects with any agreement that you have (or the organization on whose behalf you are using the Services or the Website has) entered into with us, including but not limited to this Agreement and the PAD Agreement;

(b)  You agree to use the Services only for lawful purposes and in accordance with Applicable Law, and you will comply with all Applicable Law including:

(i)      the privacy, collection, disclosure or use of personally identifiable information, including the  Personal Information Protection and Electronic Documents Act (Canada) and other similar legislation applicable in other jurisdictions, and

(ii)     The transmission of electronic messages, including the Canadian legislation known as Canada’s Anti-Spam Law, S.C. 2010, c. 23 (Canada), and other similar legislation applicable in other jurisdictions, and

you agree to indemnify VersaPay for any failure by you to comply therewith;

(c)  You are responsible for ensuring that your Account and the Services will only be used by you or properly authorized persons on your behalf, and you agree to be bound by any actions or omissions resulting from the use of your Account and the Services. You will not provide access to your Account to any party other than yourself and properly authorized persons. You will take reasonable precautions to safeguard your Account credentials and password and keep them confidential.  You accept all risks of unauthorized access to your Account and any other information you provide to VersaPay. You are responsible for all activity on your Account, and for all charges incurred on your Account, unless otherwise provided in this Agreement;

(d)  You will not infringe VersaPay’s or any third party’s copyright, patent, trade-mark, trade secret or other intellectual property rights, or use any of them in a manner that is disparaging to VersaPay or the Services or display them in any manner that implies VersaPay’s sponsorship or endorsement;

(e)  You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Services;

(f)  You will not allow Your Balance to have a negative Balance;

(g)  You will not carry out transactions to provide yourself with a cash advance from your credit card (or help others to do so);

(h)  You will not access, or permit to be accessed, the Services from any country other than the Permitted Countries;

(i)  You will not use the Services or the Website to facilitate, nor will you upload, post, transmit, share or otherwise make available on or through the Services or the Website any User Content that contains or consists of:

(i)      any viruses, trojan horses, spyware, malware, surreptitious code, worms or other computer programming routines that may (or are designed or intended to) damage, detrimentally interfere with, destroy, interrupt, limit the functionality of, surreptitiously intercept or expropriate any system, network or data,

(ii)     any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation not permitted under Applicable Law,

(iii)    material that is harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable,

(iv)    material that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability under or violate any Applicable Law;

(j)  except as expressly permitted by this Agreement or to the extent that this prohibition is not permitted under Applicable Law, you will not, in whole or in part,

(i)      alter, modify, copy, distribute, frame, reproduce, republish, transmit, or sell in any form or by any means,

(ii)     reverse engineer, decompile, or disassemble, translate or otherwise attempt to extract source code from, or

(iii)    make available to anyone, or permit anyone to access, or license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit (other than through your proper use of the Services),

the Services, the Website or any Content (other than User Content) available through them, or any part thereof;

(k)  You will not use any robot, spider, other automatic device, or manual process to monitor or copy our Website without our prior written permission;

(l)  You will not use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our Website, the Services or the Content, and without limiting the foregoing you will not (i) disable or circumvent any access control or related process or procedure established with respect to the Services or the Website, or (ii) use or attempt to use any other person’s Account or otherwise attempt to gain unauthorized access to the Services, the Website or any Content obtained through them;

(m)  You will not take any action that may cause us to lose any of the services from our internet service providers, payment processors, or other suppliers;

(n)  You will not access the Services or the Website (i) in order to build a competitive product or service, (ii) to copy any features, functions or Content of the Services or the Website, or (iii) in a way that that adversely affects the functionality or performance of the Services or the Website; and

(o)  In the event that you are required to download or use software in connection with the Services, you must first agree to the license agreement relating to such software.  Your use of any such software is governed by this Agreement and any such license agreement.

9.2   Notice.  You agree to notify VersaPay as soon as you become aware of any actual or threatened use of your Account and/or the Services in a manner contrary to Section 9.1.

ARTICLE 10 – CONTENT AND INTELLECTUAL PROPERTY

10.1       Our Intellectual Property.  “VersaPay” and all related logos, marks, trade dresses and other indicia relating to products and services described on our Website are either trade-marks or registered trade-marks of VersaPay or its licensors. The Services, Website and all Content are the exclusive property of VersaPay or its licensors and are protected by Canadian and international copyright laws, and all rights therein are expressly reserved. Without limiting the foregoing, all page headers, custom graphics, button icons, and scripts form part of the Content owned exclusively by VersaPay and or licensors. You may not copy, alter, modify, imitate, or use any of the above without our prior written consent.

10.2       Our License Grant to You.  Subject always to the terms of this Agreement, and only while you have a valid Account in good standing with VersaPay, VersaPay grants you a limited, non-transferable, non-sublicensable, non-exclusive, revocable (at any time with or without notice or cause) right and license to access and use the Website and the Content in the Permitted Countries solely in connection with your authorized use of the Services as described in this Agreement. To the extent that the Content includes materials that are downloaded to a computer, device or other platform, (a) the license grant includes the software and all updates, upgrades, new versions and replacement software made available by VersaPay, (b) without restricting the full applicability of Article 9 thereto, you may not rent, lease or otherwise transfer your rights in such Content to a third party, and (c) you must comply with the implementation and use requirements contained in all VersaPay documentation accompanying such Content.

10.3       Your Intellectual Property.  All User Content provided by you is your property and responsibility, subject to the license granted to us in Section 10.4 below. VersaPay has no responsibility or liability for it or for any losses or damages it may cause you or others.  VersaPay has the sole and absolute discretion to remove, screen or edit any User Content provided by you on the Services at any time. If you authorize any third party to access your User Content through the Services, you agree to permit VersaPay to provide that User Content to that third party without any responsibility or liability for their use of it.

10.4       Your License Grant to Us.  Providing the Services requires VersaPay to use your User Content.  Therefore, by providing your User Content for the Services, you:

(a)     hereby grant VersaPay and our subsidiaries and affiliates a worldwide, non-exclusive royalty-free license to use display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content in connection with the Services (the “User Content License”) on the following terms:

(i)      the User Content License is limited to the purposes of (a) offering, performing and making available the Services, (b) VersaPay’s (and its affiliates’ and subsidiaries’) performance or enforcement of this Agreement, and (c) improving, modifying, correcting, updating or otherwise altering the Services, the Website or the Content;

(ii)     the User Content License includes VersaPay’s (and its subsidiaries’ and affiliates’) right to sublicense to third party service providers in connection with such purposes; and

(iii)    the User Content License will end, and VersaPay and its subsidiaries and affiliates (except as required by Applicable Law) will cease to use the User Content, a commercially reasonable period after such User Content is removed from the Service or your Account is terminated,

(b)     represent and warrant to VersaPay that

(i)      you have all right, title and interest to grant the User License and to permit our use of the User Content in accordance with this Agreement, and

(ii)     the User Content does not infringe on any other person’s copyright, trade-mark, proprietary interests, trade secrets, privacy or other intellectual property or proprietary rights, and

(c)    hereby agree to indemnify, defend and hold harmless VersaPay, its affiliates and subsidiaries from and against any claims, losses, damages or expenses incurred in respect of any third party claims arising in connection with the User Content from your breach of this Agreement including, without restriction, the representations and warranties set out in (b) above.

10.5       Third Party Intellectual Property.  The Website may contain (or you may be presented with through the Services) links to other web sites (“Third Party Sites”) as well as Content belonging to or originating from parties other than us or our Users (the “Third Party Content”). Third Party Sites are not investigated, monitored or checked for accuracy, appropriateness, or completeness by VersaPay, and we are not responsible for any Third Party Sites, including, without limitation, the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites. If you decide to leave the Services and access Third Party Sites, you do so at your own risk and you acknowledge and agree that our terms and policies do not govern same. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site to which you navigate from the Services. The inclusion of or linking to any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by us, nor an endorsement of us by such third parties. All Third Party Content remain the property of their respective owners.

ARTICLE 11 – API USAGE

This Article contains terms and conditions applicable to the use of any application-programming interface made available through the Website or in connection with the Services (a “VersaPay API”) by any person who wishes to use a VersaPay API, including a developer or operator, for the purpose of including Content in, or linking the Services to, another website or application (such website or application, an “API Implementation”). If you are an Account holder and you procure a third-party to develop an API Implementation for you, this Article 11 applies to your and their use of all VersaPay APIs, and you are responsible for their compliance with this Article to the same extent as though you were developing the API Implementation yourself.

You may not use any VersaPay API unless you have a Merchant Account, and even then you must use it solely in connection with your proper use of the Services as set out in this Agreement.  Any other use of any VersaPay API is strictly prohibited.

Subject always to the terms of this Agreement, and only while you have a valid Merchant Account in good standing with VersaPay, VersaPay grants you a limited, revocable, non-exclusive, non-sublicensable license to use each VersaPay API as provided by VersaPay, in the manner permitted by this Agreement. Such license does not license any other Content to you, including any other User Content. If you wish to use your API Implementation to display or deliver any User Content provided to us by a User other than yourself, you must obtain the prior agreement of that User to that use by obtaining a license from the User.

In addition to the restrictions set out in this Article 9 (which, for greater certainty, apply fully to each VersaPay API as Services or Content made available through the Website or Services), your use of any VersaPay API is also subject to the following restrictions. You may not directly or indirectly:

  • interfere or attempt to interfere in any manner with the proper workings of any VersaPay API, or create or distribute any API Implementation that adversely affects the functionality or performance of the Services or adversely impacts the behavior of other applications using any VersaPay API;
  • misrepresent your identity or intentions when communicating with us or any other person in relation to VersaPay API, your Account, or any API Implementation, nor mask your usage of any VersaPay API;
  • include in your VersaPay API Implementation a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between VersaPay and your API Implementation among Users;
  • disparage or otherwise negatively represent VersaPay in your API Implementation;
  • use the VersaPay API for any application that attempts to replace or replicate the essential user experience or functionality of the Services; or
  • build conversion functionality that converts Content from the Services to a competing product or service.

You agree to carefully monitor your use of each VersaPay API and ensure that it remains within reasonable operational limits for both your own server capacity and for ours. You acknowledge and agree that we may impose or adjust the limit on the number of transactions you may send or receive through the Services; such upper limits may be set by us at any time, at our discretion.

VersaPay has no responsibility to any person for any use or misuse of any Content or Services obtained through the VersaPay API.

VersaPay may, but has no obligation to, monitor your use of the VersaPay APIs for any reason, including but not limited to: quality assurance, the improvement of products and services, and for verification of your compliance with this Agreement. You acknowledge that any use by us of your API Implementation for such purpose will not constitute our agreement to any terms of use you purport to require us to comply with in such use.

ARTICLE 12 – VERSAPAY DATA HOSTING OBLIGATIONS

12.1       Service Availability.  VersaPay will use commercially reasonable efforts to provide continuous and consistent Service to you as set out in the Service Level Agreement available on our Website (the “SLA”). In connection with the SLA, the availability of the Services may be subject to interruption and delay due to causes beyond VersaPay’s reasonable control or where VersaPay, acting in a manner consistent with the standards of IT professionals, determines it reasonable or necessary, including:

(a)         VersaPay may perform network or facility maintenance, and will provide you with no less than forty-eight (48) hours’ advance notice of such work;

(b)         VersaPay may suspend or limit Services where necessary to prevent or limit the improper or unlawful use of the Services by you or any third party or for emergency maintenance to prevent an unscheduled outage or prevent a breach of security or other deleterious effects, and will provide you with notice following such an emergency service suspension or limitation to communicate the reasons for the suspension; and

(c) as no system is perfectly secure or reliable, and the Internet is an inherently insecure medium, the reliability of hosted Services, Internet intermediaries, your Internet service provider, and other service providers, or the networks in between them cannot be assured.

You acknowledge and agree that, except as otherwise set out in this Agreement, your only remedy for any error, omission, defect, deficiency, delay or other failure of the Services in such circumstances is to discontinue using it.

12.2       Data Backups, Storage and Archiving.  VersaPay will use commercially reasonable efforts and industry accepted methods to ensure the reliability of its backup and archiving services, and will provide you with logs of all backup processes indicating what was backed up. However, due to the technical limitations regarding backups on live servers and the possibility of data corruption on backup or restore, VersaPay cannot guarantee all or any data can be restored from any particular backup.

VersaPay is a PCI Level 1 Service Provider that encrypts all stored credit card numbers, has advanced intrusion detection / prevention systems in place, uses restrictive firewalls to protect stored data and uses enhanced 256 bit SSL certificates to encrypt data transferred between you and the Service.

As set out above, VersaPay provides VersaPay APIs to facilitate the use of the Services with API Implementations. If a third party API Implementation, or any third party software, is authorized through your Account to have access to your User Content through a VersaPay API, we cannot control, and are not responsible or liable for, such third party use of your User Content.

ARTICLE 13 – SECURITY AND ELECTRONIC COMMUNICATION

13.1       Security.  VersaPay will at all times have in place appropriate policies and procedures to protect the security and confidentiality of the Services, Confidential Information, Electronic Channels and Electronic Communication, including those that are set out in this Agreement and the SLA.

13.2       VersaPay’s Procedures.  You will comply with all security procedures, standards and other requirements prescribed by VersaPay for the Services and Electronic Channels. You will take any other steps reasonably necessary to protect against anticipated threats and hazards to the Services and Electronic Channels, and to prevent unauthorized access to and use of the Services and Electronic Channels. You agree to notify us immediately of any failure or inability to do so.

13.3       Advertisements and Promotions.  VersaPay may run advertisements and promotions from third parties on the Website. Your business dealings or correspondence with, or participation in promotions of, such advertisers, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. VersaPay is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Website.

13.4       All Electronic Communication.  All Electronic Communication between VersaPay and you will take place in accordance with this Agreement.

13.5       Binding Effect of Electronic Communication.  Any Electronic Communication that we receive from you, or in your name, or purporting to be from you or in your name or any other person on your behalf in connection with the Services and/or your Account, will be considered to be duly authorized by, and enforceable against, you. VersaPay will be authorized to rely and act on any such Electronic Communication.

13.6       Unsecure Electronic Channels.  You acknowledge and agree that if you use, or authorize and direct VersaPay to use, any unencrypted Electronic Channel including unencrypted email or facsimile, any Electronic Communication sent, received and/or accepted using such Electronic Channel is not secure, reliable, private or confidential. Any such Electronic Communication could be subject to interception, loss or alteration, and may not be received by the intended recipient in a timely manner or at all. You assume full responsibility for the risks associated with such Electronic Channels and Electronic Communication.

13.7       Notice of Unauthorized Use.  You agree to notify VersaPay immediately if you know or reasonably ought to know that an unauthorized person may have access to your Account and/or the Services, or if you become aware of any actual or threatened use of your Account and/or the Services in a manner contrary to this Agreement.

13.8       Use of Electronic Communication.  You agree that VersaPay may provide any notice or other communication or agreement by Electronic Channel. Any requirement in this Agreement for a party to agree in writing may be satisfied by Electronic Communication so long as such Electronic Communication can be retained by you and us.

13.9       Evidence.  Electronic records and other information maintained by VersaPay regarding any Electronic Communication will be admissible in any legal, administrative or other proceedings as conclusive evidence of the contents of those communications in the same manner as an original paper document, and you waive any right to object to the introduction of any such record or other information into evidence on that basis.

ARTICLE 14 – CONFIDENTIALITY AND PRIVACY

14.1       VersaPay’s Confidentiality Obligations.  VersaPay agrees to use any Confidential Information solely for the purpose of the Services (in accordance with its license to your User Content set out in Section 10.4), and will not disclose such Confidential Information to any Person except in the following circumstances:

(a)     to our employees and agents who need to know such Confidential Information for the purpose of the Services, provided that such persons are informed of the confidential nature of such Confidential Information and agree to keep it in confidence;

(b)    to the extent permitted or required under Applicable Law (including, without limitation, through questions, interrogatories, requests, subpoenas, civil demands or similar processes of lawful authorities);

(c)     if agreed in writing by you or between you and VersaPay, in connection with any dispute resolution process or legal proceeding between you and VersaPay; or

(d)     necessary for your use of the Services or our proper performance of the Services (including, but not limited to, situations where you use the Services to communicate to a third party, or permit third party access to, Confidential Information).

14.2       Personal Information.  Protecting privacy of Personal Information is very important to VersaPay. Please review our Privacy Policy located on our Website in order to better understand our commitment to maintaining privacy, as well as our use and disclosure of any Personal Information. Our Privacy Policy is incorporated in full into this Agreement by this reference.

14.3       Privacy of Others.  If you receive any Personal Information through the Services, you must comply with all Applicable Laws with respect thereto. Without restricting that, any Personal Information disclosed by another User to you is disclosed pursuant to consent given by that other User for the express purpose of completing a transaction using the Services under our Privacy Policy and the terms of such consent do not permit you to collect, retain, use or disclose the Personal Information for any other purpose.

14.4       Additional Assurance.  From time to time, VersaPay may require you to take steps, including the entering into of additional agreements, to ensure compliance with all Applicable Law regarding privacy. You will, and will cause your representatives, to comply with VersaPay’s requests in this regard.

ARTICLE 15 – WARRANTIES AND INDEMNITIES

15.1       Indemnity.  You are responsible for all Reversals, Chargebacks, claims, fees, fines, penalties and other liability incurred by the Released Parties, other users of the Services or any third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. Except to the extent caused directly by negligence or willful misconduct on the part of VersaPay, its subsidiaries or affiliates and their respective officers, directors, agents, employees, contractors, advertisers, sponsors, vendors or other partners, and any of their successors or assigns (the “Indemnified Parties”), you agree to indemnify, defend and hold harmless the Indemnified Parties for all Reversals, Chargebacks, claims, loss, damages, liabilities, costs, reasonable attorney fees, expenses, claims, demands and proceedings incurred by the Indemnified Parties or any third party due to or arising out of (a) any failure by you or any employee, agent or affiliate of you to comply with the terms of this Agreement, (b) if you are a Merchant, your customers’ use of the Website, the Services, and the Content or the User Content, and (c) any alleged or actual violations by you or your subcontractors, employees or agents of any card association rules or Applicable Laws

15.2       Temporary Holds for Disputed Transactions.  If a customer of yours files a claim, or seeks a Reversal, or if a payment is subject to Chargeback, VersaPay will place a temporary hold on the funds in your Merchant Account to cover the amount of the claim or liability. If you are successful in whole or in part in resolving the disputed transaction, VersaPay will lift the temporary hold to a degree commensurate with your success. If you are unsuccessful in resolving the disputed transaction, VersaPay will remove the funds from your Merchant Account.

15.3       Exclusion of Liability.  NEITHER YOUR NOR VERSAPAY WILL BE LIABLE TO THE OTHER OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.4       Limit of Liability.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, VERSAPAY’S (AND ALL OF THE OTHER INDEMNIFIED PARTIES’) CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY WILL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THE AGREEMENT FOR SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR LIABILITY FOR ANY DELAY IN FUNDING TRANSACTIONS TO YOU FOR ANY REASON WILL BE LIMITED TO INTEREST COMPUTED FROM THE DATE THAT YOU SUBMIT THE TRANSACTION TO THE DATE THAT WE FUND THE TRANSACTION AT THE ANNUAL INTEREST RATE ANNOUNCED FROM TIME TO TIME BY THE ROYAL BANK OF CANADA AS A REFRENCE RATE THEN IN EFFECT FOR DETERMINING INTEREST RATES ON CANADIAN DOLLAR COMMERCIAL LOANS IN CANADA.

15.5       Exceptions and Limitations.  The exclusions and limitations set out in Sections 15.3 and 15.4 will not apply to the extent (a) prohibited by Applicable Law (in such case, only to the strict extent of such restriction, and such exclusions and limitations will be read as if replaced by the most exclusive or limiting exclusions or limitations permitted under such Applicable Law), and (b) resulting from VersaPay’s (or its affiliates’ or subsidiaries) willful misconduct, fraud or gross negligence.

15.6       No Warranty.  THE SERVICES, WEBSITE AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY WHATSOEVER EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT. WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO YOU AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY OR RELIABILITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WHETHER ARISING BY USAGE OF TRADE, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE HOWSOEVER, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR EMPLOYEES OR REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS. VersaPay will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and cheque issuances are processed in a timely manner but VersaPay makes no representations or warranties regarding the amount of time needed to complete processing because our Services are dependent upon many factors outside of our control.

15.7       Reimbursement for Your Liability.  In the event that you are liable for any amounts owed to VersaPay, Section 7.8 (Set Off) fully applies and VersaPay may immediately remove such amounts from Your Balance. If Your Balance is not sufficient to cover your liability, your Merchant Account will have a negative balance and you will be required to immediately add funds to Your Balance to eliminate the negative balance. If you do not do so, VersaPay may engage in collection efforts to recover such amounts from you.

15.8       Subrogation.  If VersaPay pays out a claim, Reversal or Chargeback that you file against a recipient of your payment, you agree that VersaPay assumes your rights against the recipient and third parties related to the payment, and may pursue those rights directly or on your behalf, in VersaPay’s discretion.

15.9      Release of VersaPay.  If you have a dispute with one or more Users, you hereby release VersaPay (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.

ARTICLE 16 – TERMINATION

16.1       Termination Generally.  Any termination of this Agreement will automatically end your right to use the Services, as your use of the Services is contingent upon your full agreement to these terms and conditions.

16.2       Termination by You.  You may terminate this Agreement at any time without any penalty by contacting our Customer Support.

16.3       Termination for Cause.  Either party may terminate this Agreement upon written notice to the other party, effective immediately or at such later date as specified, and without any penalty:

(a)     In the event that the other party commits a material breach of this Agreement and does not cure such material breach within ten (10) Days of a written notice thereof; or

(b)     in the event of either the other party’s insolvency or the institution of any insolvency, receivership or conservatorship, assignment for the benefit of creditors, bankruptcy or similar proceedings by or against the other party.

16.4       Limitations on Closing Your Account.  Notwithstanding Section 16.2, you may not close your Account to evade an investigation. If you attempt to close your Account while we are conducting an investigation, we may hold your funds for up to 180 Days to protect VersaPay or a third party against the risk of Reversals, Chargebacks, claims, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after your Account is closed.

16.5       Termination or Restriction by VersaPay.  Notwithstanding any provision of this Agreement, VersaPay reserves the right in its sole discretion, without any notice or liability to you, to (a) terminate your Account, this Agreement and your license to use the Services or any portion thereof and the rights of any third party or API Implementation to which you have granted access to Content through a VersaPay API; (b) block or prevent your future access to and use of all or any portion of the Services or Content and the rights of any third party or API Implementation to which you have granted access to Content through a VersaPay API; (c) change, suspend or discontinue any aspect of the Services or Content; and (d) impose limits on the Services or Content.

16.6       Account Closure, Termination of Service, or Limited Account Access.  If we close your Account or terminate your use of our Services for any reason, we will provide you with notice that we have done so. If we limit access to your Account, we will provide you with notice of our actions and the opportunity to request restoration of access if appropriate.

16.7       Restricted Activity.  Without restricting Section 16.5, if you engage in or we have reason to believe that you have engaged in any Restricted Activities, we may take various actions to protect VersaPay, other users of the Services and/or third parties from Reversals, Chargebacks, claims, fees, fines, penalties and any other liability. In such circumstances, the actions we may take include that (i) we may close, suspend, or limit your access to your Account or our Services, (ii) we may take legal action against you, and (iii) if reasonably needed to protect against the risk of liability we may limit your access to Your Balance for up to 180 Days.

16.8       Post-Termination Transition.

(a)     All monetary and non-monetary obligations of the parties owing and/or to be performed or discharged prior to the date of termination or expiration will survive termination until such obligations have been performed or discharged. If this Agreement is terminated, our rights pursuant to your PAD Agreement will survive termination until such time as all credits and debits that are permitted by this Agreement and the PAD Agreement and related to outstanding transactions have been made.

(b)     Upon notice by either party of termination of this Agreement, we may notify you of the estimated aggregate dollar amount of Chargebacks, Reversals and other obligations and liabilities that we reasonably anticipate subsequent to termination, and you agree to immediately deposit such amount, or we may withhold such amounts from your credits, in order to establish a Reserve pursuant to this Agreement.

16.9       Inactive Accounts.  If your Account is inactive for at least two months, we may deactivate it.  Deactivated accounts are placed in storage and can be restored.  We will notify you by email if we decide to deactivate your account.  If you know in advance that your Account will be inactive for two months or more and don’t want us to deactivate it, please contact our Customer Support.  If after your account has been deactivated it stays inactive and we don’t hear from you, we may terminate your Services and delete it at any time without notice.

ARTICLE 17 – MISCELLANEOUS

17.1       Relationship.  VersaPay is an independent contractor. Subject to Section 7.1 (VersaPay is Limited Agent), nothing contained in this Agreement will create a partnership, joint venture, principal-and-agent relationship, or any similar relationship, between you and VersaPay.

17.2       Entire Agreement.  This Agreement, the Privacy Policy, the SLA, the Application and the PAD Agreement as each may be amended from time to time, constitute the entire agreement between the parties relating to the subject matter of this agreement; it supersedes any previous agreements, understandings and discussions between you and VersaPay, whether verbal or in writing.  Neither you nor VersaPay has relied on any representations, agreements, statements or understandings other than as set out in this Agreement. In connection with that, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Schedule, policy, agreement exhibit or document appended hereto or incorporated by reference, the terms of such Schedule, policy, agreement exhibit or document will prevail.

17.3       Representation and Warranty.  If you are a Merchant, you represent and warrant that your execution of and performance under this Agreement (i) in no way breaches, contravenes, violates or in any manner conflicts with any of your other legal obligations, including, without limitation, your corporate charter or similar document or any agreement between you and any third party; and (ii) has been duly authorized by all necessary action and does not require any consent or other action by or in respect of any third party and that the person signing this Agreement on your behalf is duly authorized to do so. Each of you and VersaPay agrees that the other may publicly disclose, through press releases or otherwise, the existence of the business relationship that is the subject of this Agreement. Any such disclosure may identify the parties by name but will not, without the prior written consent of the non-disclosing party, include any of the terms of this Agreement.

17.4       Notice.  In order to be effective, any notice must be in writing and given in accordance with this Section 17.4.

(a)     Notice is effective if it is given (i) by personal delivery, either to the individual designated below for such party, or to an individual having apparent authority to accept deliveries on behalf of such individual at its address set out below; or (ii) by first class mail, postage prepaid, at or to street address listed in your Account Profile. Effective notice to you may also be given by electronic mail to the email address listed in your Account Profile. At any time you may designate another address or email address, as the case may be, as your address for notice. In addition, you agree that VersaPay may provide effective notice by posting it on our Website if the notice is addressed to all Users of the Services

(b)     Except as otherwise stated in this Agreement, notice to VersaPay must be sent by postal mail to: VersaPay Corporation, Attention: EFT Department, Suite 600 – 170 University Avenue, Toronto, Ontario, Canada, M5H 3B3.

Notice under this Section 17.4, (i) if given by personal delivery, is effective on the day of delivery if delivered before 5:00 p.m. local time on a Business Day and otherwise on the next Business Day; or (ii) if sent by mail, on the fourth Business Day following the day on which it is mailed; or (iii) if sent by electronic mail, on the day the sender receives confirmation of receipt by return electronic mail from the recipient, if that day is a Business Day, and if the confirmation was received prior to 5:00 p.m. local time in the place of delivery or receipt, and otherwise, on the next Business Day. VersaPay reserves the right to close your Account if you withdraw your consent to receive Electronic Communications.

17.5       Severability.  The invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability of the remaining provisions.

17.6       Remedies cumulative.  Except as otherwise provided in this Agreement, the rights and remedies provided to a party in this Agreement are cumulative and in addition to, and are not exclusive of or in substitution for, any rights, remedies and powers otherwise available to that party.

17.7       Disputes.  If a dispute arises between you and VersaPay, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and VersaPay regarding our Services may be reported to Customer Support online through the VersaPay Help Centre at any time, or by calling (866) 999-VPAY from 6 AM to 8 PM Eastern Time.

17.8       Governing Law; Waiver of Jury Trial; Arbitration.  This Agreement will be governed by and construed in accordance with the laws of Canada and the Province of Ontario, without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the provincial judicial district that includes Toronto, Ontario. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Any claim, dispute or controversy (“Claim“) by either you or us against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, if applicable, arising from or relating in any way to this Agreement or to our relationship, including Claims regarding the applicability of this Section 17.8 or the validity of this Agreement, will be resolved exclusively and finally by binding arbitration administered by the ADR Institute of Ontario (the “Authority”), under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law. Claims and remedies sought as part of a class action, private attorney general, private right of action or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and us. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the Authority in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement will be construed to prevent any party’s use of (or advancement of any Claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or other property interests for contractual debts now or hereafter owed by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND VERSAPAY MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT, EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.

17.9       Binding Effect; Assignment.  This Agreement enures to the benefit of and binds the parties’ respective heirs, executors, administrators and other legal representatives, successors and permitted assigns. You may not assign this Agreement without our prior written consent. We may assign this Agreement to a third party upon notice to you.

17.10     Force Majeure.  Neither party is responsible for damages caused by delay or the failure to perform any of its obligations under this Agreement when the delay or failure is the result of Force Majeure. If a party contends that any of its obligations are suspended by reason of Force Majeure, that party must give Notice to the other parties, providing all necessary details. That party must give a similar Notice as promptly as reasonably practicable when Force Majeure has ended. “Force Majeure” means any act, occurrence, condition, or event beyond the control of a party that materially affects the performance of that party’s obligations under this agreement that could not reasonably have been foreseen or provided against, including such events as fires, telecommunications or utility or power failures, equipment failures, labor strife, riots, war, non-performance of our vendors or suppliers, acts of God, but not including general economic conditions.

17.11     Waivers.  No term or condition of this Agreement may be waived unless both parties sign a written waiver.

17.12     Survival. Without limiting the applicability of other terms and conditions of this Agreement, the terms of this Agreement that, by their nature, are intended to survive any purported or actual termination or expiry of this Agreement will so survive, including but not limited to Articles 1, 10, 14, 15 and 16 and Sections 4.7, 4.8, 7.2, 7.7, 7.8, 7.9, 7.10, 7.11, 8.3, 9.2, 13.3, and 13.8, and all additional terms and conditions necessary for the correct interpretation of the foregoing.

17.13           Language.  It is the express wish of the parties that this agreement and any related documentation be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.


SCHEDULE 1 – Definitions and Interpretation

1.      Definitions.

“Account” or “VersaPay Account” means a Merchant Account or Consumer Account established on the books of VersaPay used for the Services.

“Account Profile” means section of the Website that contains the information pertaining to your Account.

“Agreement” means this agreement and all attached Schedules, including all subsequent amendments.

“Applicable Law” means with respect to any person, property, transaction, event or other matter, any law, rule, statute, regulation, instrument, order, judgment, decree, treaty or other requirement (collectively, the “Law“) having the force of law in any jurisdiction relating or applicable to such person, property, transaction, event or other matter. Applicable Law also includes, where appropriate, any interpretation of the Law (or any part thereof) by any person having jurisdiction over it, or charged with its administration or interpretation.

“Business Days” means Monday through Friday, excluding ”holidays” as defined n the Interpretation Act (Ontario), R.S.O. 1990, Ch. I.11.

“Chargeback” means a request that a purchaser files directly with its credit card company or credit card issuing bank to invalidate a payment.

Confidential Information” of a person includes all information, whether provided in written, oral, or electronic form, whether or not identified as confidential at the time of disclosure, disclosed by such person. For greater certainty,

(a) your Confidential Information includes User Content, including Personal Information, provided by you through the Services,

(b) notwithstanding any of the foregoing, Confidential Information does not include any information that (i) was already, or becomes, known to a party without a duty of confidentiality and without direct or indirect use whatsoever of the disclosing person’s Confidential Information, or (ii) is, or becomes, generally available to the public rightfully without restrictions of confidentiality.

Consumer Account” means an Account used primarily for personal, family, or household purposes that is not a Merchant Account.

“Content” means all information, data, logos, marks, designs, graphics, pictures, sound files, applications, software and other files or electronic materials on the Website or available through the Services.

“Currency Conversion Fee” means the fee, determined by VersaPay, whenever VersaPay performs a currency conversion on a User’s behalf. The Currency Conversion Fee is determined as a percentage added to the applicable exchange rate and set out in Schedule 2 to this Agreement. The exchange rate is determined by a financial institution and is adjusted regularly based on market conditions, where such adjustments may be applied immediately and without notice to you. The Currency Conversion Fee is subject to change or amended in accordance with this Agreement.

“Customer Support” is VersaPay’s customer support which can be accessed online through the VersaPay Help Centre at any time, or by calling (866) 999-VPAY from 6 AM to 8 PM Eastern Time.

“Days” means calendar days.

“EFT” means electronic funds transfer as defined by the Canadian Payments Act, operating on the ACSS (Automated Clearing Settlement Service).

“EIPP System” means VersaPay’s proprietary Electronic Invoice Presentment and Payment software as a service platform.

Electronic Channel” means any telecommunication or electronic transmission method which may be used in connection with the Services, including computer, internet, network, telephone, mobile phone, smart phone, SWIFT, email, facsimile or bank wire.

Electronic Communication” means any statement, information, disclosure, notice, request, consent or other communication or agreement sent, received or accepted using an Electronic Channel.

“Fees” means the fees, taxes and other amounts for the Services stated in Article 8 (Fees) of this Agreement.

“Invoice Data” means all data provided by a User to our EIPP System for the creation of invoices.

Merchant” means any person with a VersaPay Account who is selling goods and/or services and using the Services to make and receive payments.

Merchant Account” means an Account opened by a Merchant pursuant to this Agreement that is not a Consumer Account.

“PAD” means pre-authorized debit, and the “PAD Agreement” means the pre-authorized debit agreement between you and VersaPay with respect to the authorization to issue pre-authorized debits against a designated deposit account.

“Payment Method” means the method used to fund a payment. The Services allow for the following Payment Methods: Your Balance, EFT, credit card, and debit cards issued by Visa or MasterCard.

Permitted Countries” means Canada and the United States.

Personal Information” means information that can be used on its own or with other information to identify an individual.

“Policy” or “Policies” means any policy or other agreement between you and VersaPay on the Website which you are subject to in connection with your use of the Services.

“Pooled Accounts” means deposit accounts at one or more financial institutions in which VersaPay will place funds held by Users in their Accounts.

“Preferred Funding Method” means the Payment Method that you select to fund a payment instead of using Your Balance.

“Recurring Payments” means a payment in which you provide an advance authorization to a Merchant to charge your Account directly on a regular or sporadic basis in accordance with your agreement with the Merchant. Recurring Payments are sometimes called “subscriptions”, “automatic payments” or “preapproved payments”.

“Reserve” means a percentage of the funds received into your Account that we hold in order to protect against the risk of Reversals, Chargebacks, claims or any other liability related to your Account and/or use of the Services.

“Restricted Activities” means those activities or conduct which a User is precluded from doing under Article 9 (Your Conduct) of this Agreement.

“Reversal” means a payment that you received has been removed from Your Balance based on a request that an account holder filed directly with his or her bank, or directly with VersaPay (for a fraudulent transaction) to invalidate a payment, or because VersaPay believes it is a fraudulent payment.

“seller” and “merchant” are used interchangeably and mean a User who is selling goods and/or services and using the Services to receive payment.

“Services” means the EIPP System, payment services and all related products available through  http://secure.VersaPay.com.

“Transaction Details Page” means the page on the Services website titled “Transaction Details” that displays information about the transaction. This page is accessible from the “Details” link on the “overview” and “History” sub tabs of the “My Account” tab on the Website.

“User”, “you” or “your” means you and any other person or entity using the Service.

“User Content” means all Content that is provided by a User, including Invoice Data, User or Account information and the contents of your Account Profile.

“VersaPay,” “we,” “us” or “our” means VersaPay Corporation and its subsidiaries and affiliates.

“Website” means VersaPay’s website at www.versapay.com and secure.versapay.com.

“Your Balance” or “Balance” means the balance of funds that you have in your Account. The terms “money” and “funds” are used interchangeably in this Agreement.

2.      Interpretation.

In this Agreement:

  1. all references to this Agreement, including any Schedule, or to any law, statute, regulation, guideline, policy, rule, standard, or otherwise include same as may be amended, restated, supplemented or otherwise modified from time to time;
  2. the division of this Agreement into articles, sections and other subdivisions and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation hereof;
  3. words denoting the singular number only will include the plural and vice versa, words denoting the masculine gender shall include the feminine and neuter genders and vice versa, as the context otherwise permits;
  4. the word “including” means “including without limitation” and the word “includes” means “includes without limitation”;
  5. the words “hereto,” “herein,” “hereof,” “hereunder,” “this Agreement” and similar expressions mean this Agreement as a whole and not any particular article, section or subsection unless the context otherwise requires; and
  6. unless otherwise specified, all dollar amounts referred to in this Agreement are in lawful money of Canada.