Terms and Conditions

Merchant Payment Services Agreement

IMPORTANT. Your use of merchant payment services offered by VersaPay (“Services“) will be governed by this agreement (“Agreement“) between you and VersaPay. Read this Agreement carefully before you use the Services. By using the Services you agree to all the terms and conditions of this Agreement.

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://secure.versapay.com (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 Service.

SCOPE

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

Schedules and Paramountcy. All Schedules which are annexed or deemed to be annexed hereto from time to time shall form an integral part of this Agreement and the provisions found in Schedules shall have the same legal effect as if expressly set forth in the main body of the Agreement.

ENROLLMENT AND YOUR ACCOUNT

VersaPay Service. Subject to the terms of this Agreement and when offered by VersaPay, you may use the Service (i) to make and receive payments to and from consumers who are enrolled to use VersaPay’s EFT Service through a Consumer Account, (ii) to make and receive payments to and from merchants who are enrolled to use VersaPay’s EFT Service through a Merchant 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 a payroll function) on behalf of a Merchant.

Account. When you enroll in our Services, VersaPay will establish on its books of account a nominal account (“Account“) for your use of the Services. 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.

Your Account Profile. When you enroll in the Service you must provide an Account Profile. You agree to keep the information in your Account Profile current. If we become aware of any change to your personal information, we may update your Account Profile and we will notify you of such change either by Electronic Communication or by mail at the address provided in your Account Profile.

Eligibility. To be eligible for our Services, 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.

Eligibility for using VersaPay Credit Card Payment Services. When you enroll in the Service and elect to have VersaPay host the payment page for processing and collecting your credit card payments from a third party, 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 agreements permits and directs the credit card issuer to settle with VersaPay as agent for the Merchant. If the merchant cardholder acceptance agreement changes, you will notify VersaPay immediately. You agree that all disputes with the credit card issuer and Chargebacks are to be resolved between the Merchant and the credit card issuer.

Identity Authentication. You authorize VersaPay, directly or through third parties, to make any inquiries we consider necessary to validate your identity. 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.

MAKING PAYMENTS

Payment Limits. We may, at our discretion, impose limits on the amount of money you can send through our Service. You can view your sending limit, if any, by logging into your Merchant Account and clicking on the “View Limits” link on the “Account Overview” page. If you have a Verified Account, we may increase your sending limits.

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 Service. We will return any unclaimed, refunded or denied payment within 30 Days of the date you initiate payment. If a payment is unclaimed, denied or refunded for any reason, we will return the money to Your Balance or to the original Payment Method.

Third Party Processing Delay. When you send a payment to certain non VersaPay Accounts, you are providing authorization to the third party to process your payment and complete the transaction. The payment will be held as pending until the third party processes your payment. Some third party’s may delay processing your payment. In such an instance, your authorization will remain valid for up to 30 Days. 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.

Arranging Recurring Payments. You may request Recurring Payments by logging in to your Merchant Account and completing the required information fields.

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. Please keep in mind that Recurring Payments are sometimes referred to as subscriptions or preapproved payments. In addition, if you cancel a Recurring Payment you may still be liable to the merchant for the payment and be required to pay the merchant through alternative means.

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 such 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 notices to you by email and/or in the transaction history shown in your Merchant Account.

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. VersaPay is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.

FUNDING PAYMENTS.

Your Balance is Always Used First. Subject to Section 4.2 (Insufficient Balance), every payment you request and related charges will be funded by the Your Balance. In this case, VersaPay will make your requested payment by debiting your Merchant Account and either (a) crediting the payee’s VersaPay Account the amount of the payment, or (b) send the payment to the third party (non VersaPay Accounts), to process your payment and complete the transaction.

Insufficient Balance. If Your Balance is insufficient to make the full amount of your requested payment and

(a) if payment is to another VersaPay Account, you will be notified by secure Electronic Communication and if agreed by VersaPay in VersaPay’s sole and absolute discretion, on your express instructions VersaPay will extend sufficient credit to your Merchant Account to increase Your Balance to an amount sufficient to make the requested payment and will request payment (by PAD) from your financial institution to repay VersaPay the amount of credit extended. VersaPay will request (by secure Electronic Communication) you to authorize VersaPay to initiate a pre-authorized debit against your bank account, in accordance with the bank account details you indicated to us on your application form, or from time to time; or

(b) if payment is to a third party and not another VersaPay Account, you will be notified by secure Electronic Communication and your requested payment will be funded by one of the following methods, which shall be used in the order listed, if applicable:

(i) a charge on your credit card account, your Visa-issued debit card or your MasterCard-issued debit card, in accordance with the preferences you indicated to us on your Application form or from time to time; and

(ii) VersaPay EFT completed in accordance with Section 4.6 (VersaPay EFT Bank Transfers).

Preferred Funding Method. Each time you make your payment request, you will be provided with a summary of (i) the Your Balance, and (ii) if the Your Balance is insufficient to fund your payment request, the amount required to be funded by you by one of the methods set out in Section 4.2 (Insufficient Balance). We always use Your Balance first. If you don’t want to use Your Balance, you can withdraw it before making a payment. You may specify a Preferred Funding Method that will be will be used to fund the payments you specify, provided you do not have a Balance. A Preferred Funding Method may be specified as follows:

(a) Each time you make a payment – Each time you make a payment, you may select a Preferred Funding Method for that transaction. You may do so on the “Review Your Payment” page by clicking on the link to change your payment method and selecting from the available payment options.

(b) In your Account Profile.  If you have set up a Recurring Payment, you may select a Preferred Funding Method for all future payments to a specified payee. You may do so by logging in to your Merchant Account, selecting “Profile”, selecting “Recurring Payments” or “Pay List”, and then by selecting the links to set a Preferred Funding Method.

(c) Limitations. If you have a Your Balance, VersaPay will use Your Balance instead of your Preferred Funding Method, unless your payment is EFT or payment is being made to another VersaPay Account.

Funding Method Limitations. VersaPay may limit the Preferred Funding Method available for a transaction. Any of the Preferred Funding Methods may be limited for a period of time at the discretion of VersaPay from time to time and may include the credit card and the instant payment option (request by PAD). Such limitations may occur as a result of a chargeback issued on your credit card or an amount is returned from your bank account by your financial institution. 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 such a 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.

Requests to Add Funds to Account. To authorize VersaPay to add funds to your account balance, you must log in to your Merchant Account and complete the information fields. An Add Funds arrangement 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 Merchant Account.

VersaPay EFT Bank Transfers. To authorize VersaPay to use an electronic transfer from your bank account as a payment method, you must complete the Application form 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 indicated to us on your Application form, or from time to time. 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 insufficient or uncollected funds.

RECEIVING FUNDS FROM EXTERNAL SOURCES

Receiving Money. In addition to the funding methods in Article 4 (Funding Payments) by which you are permitted to add funds to your Merchant Account, funds may be credited to your Merchant Account upon receipt of payments from (i) consumers who are enrolled to use VersaPay’s EFT Service and making payment for products or services invoiced by you or requested by you, (ii) other merchants who are enrolled to use VersaPay’s EFT Service and making payment for products or services invoiced by you or requested by you, (iii) other merchants that are reversing or refunding any part of a payment that originated from your Merchant Account to you, and (iv) consumers or merchants without VersaPay Accounts and making payment for products or services invoiced by your or requested by you.

Request to Collect Funds. To notify and collect funds from consumers, merchants or third parties, you must either:

at the time of payment by the consumer, merchant or third party to the Merchant to complete the transaction, the Merchant will direct the consumer, merchant or third party to the VersaPay Website to direct VersaPay as agent to collect the payment from the consumer, merchant or third party;

send a notice (with or without an invoice attached) to your consumer or merchant notifying the recipient of a request for payment to the Merchant by Electronic Communication; or

log in to your Merchant 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 behalf of the Merchant, to each recipient noted in the Merchant Payment Request notifying the recipient of a request for payment to the Merchant.

Upon receipt of a request to collect payment or funds above, the consumer, merchant or third party will be directed to the VersaPay Website to authorize VersaPay to add funds to your account balance by one of the methods described in 5.3 (Receiving Funds from VersaPay Accounts) or 5.4 (Receiving Funds from Other Methods).

Receiving Funds from VersaPay Accounts. Upon receipt of a request to collect funds in 5.2 (Request to Collect Funds), to authorize VersaPay to add funds to your account balance and withdrawing from another VersaPay Account, the consumer or merchant will be direct to log into their VersaPay Account and select a funding method to make a payment against the notice or the invoice received from the merchant to the Merchant’s Account.

Receiving Funds from Other Methods. Upon receipt of a request to collect funds in 5.2 (Request to Collect Funds), to authorize VersaPay to add funds to your account balance, the third party will be directed to log on to the VersaPay Website to:

complete and accept the auto-debit request for payment (by PAD) to authorize VersaPay to initiate a pre-authorized debit against the third party’s bank account, in accordance with the bank account details to be provided in the acceptance form and direct payment to the Merchant; or

complete and accept the request to charge the credit card account, the Visa-issued debit card the MasterCard-issued debit card on the VersaPay hosted payment page for processing and collecting your credit card payments.

Direct Collection System. To authorize VersaPay to add funds to your account balance, you must log in to your Merchant Account and submit your account receivable collection information electronically in the prescribed form (each a “Auto Collection Request“), which includes direct authorization from the payor to direct VersaPay to act as agent for the Merchant, to initiate a debit against the appropriate funding source and direct payment to the Merchant. The Auto Collection Request shall include payor authorization in the form of either:

an auto-debit request for payment (by PAD) to authorize VersaPay to initiate a pre-authorized debit against the third party’s bank account, in accordance with the bank account details to be provided in the acceptance form; or

an authorization to charge a credit card account.

OPERATION OF ACCOUNT

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 for credit to your Merchant Account. VersaPay will be the holder of record of your Merchant 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.

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.

Balances. You do not need to maintain a Balance in order to make payments.If you do hold a Balance, VersaPay will hold your 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.

No Interest on Your Balance. You acknowledge and agree that VersaPay will not pay you interest on Your Balance from time to time, if any, and will not allocate to you any portion of interest earned by or accrued to VersaPay in respect of funds that you transfer to VersaPay to fund your payments and VersaPay deposits in its name in deposit accounts at deposit-taking financial institutions. All interest or amounts earned by or accrued to VersaPay shall belong to VersaPay.

Negative Balances. If the Your Balance is negative for any reason, VersaPay may set-off the negative Balance by deducting amounts you owe VersaPay from money you receive into your Merchant Account, or money you attempt to withdraw or send from your Merchant Account.

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

Transaction History. You may view your transaction history by logging onto your Merchant Account and looking at your Account History. You agree to review your transactions through your Account History instead of receiving periodic 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 shall be finally and conclusively settled as accurate 30 Days after the date of the transaction entry.

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

Set-Off. VersaPay may at any time and without notice apply any credit balance (whether due or not) in your Merchant Account, or in any other Account established by you with Versapay, or to which you are beneficially entitled, towards the payment of any obligation (including any contingent obligation) of the you to VersaPay, whether in the same or other currency. VersaPay may use all or any part of any such credit balance to buy any currencies that may be necessary to effect that application.

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

Return of Funds.

(a) At your request. Subject to Section 6.10 (Return of Funds), you may direct VersaPay at any time, in writing, to transfer to your bank account unused funds standing to your credit in your Merchant Account. You may not direct the return to you of funds that are required by VersaPay to complete a pending payment you have requested us to make to a third party on your behalf.

(b) In our discretion. We reserve the right, exercisable in our discretion to transfer to your bank account unused funds standing to your credit in your Merchant Account.

Limits on Return of Funds. We will not return to you funds 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 Merchant 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.

Closing Your Account. You may instruct us to close your Merchant Account, at any time, by logging in to your Merchant Account, clicking on the “Profile” tab, clicking on the “Close Account” link, and then following the instructions. Upon closure of your Merchant Account, we will cancel any pending transactions, unless otherwise legally prohibited. You must reduce Your Balance to zero prior to closing your Merchant Account or alternatively you may elect to have VersaPay return Your Balance during the “Close Account” process noted above. Your Balance will be returned by the method selected in the instructions you provide during the “Close Account” process.

Limitations on Closing Your Account. You may not close your Merchant Account to evade an investigation. If you attempt to close your Merchant 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 Merchant Account even after the Merchant Account is closed.

FEES

Fee Schedule. You agree to pay us the fees and charges for the Services in accordance with Schedule A (Pricing) in your Application or, if there is no written agreement with VersaPay for the fees and charges corresponding to a Service, VersaPay’s standard fees and charges for the Service together with applicable taxes.

Standard Fees.  $1.50 per transaction is charged to the party which initiates the transaction.  For all transactions returned to Versapay as NSF, a $25 fee will apply to the account which defaulted on the payment.

Fee Changes. We may change any of the standard fees and charges, including the fees and charges set out in Schedule A (Pricing) that are VersaPay’s standard fees and charges, 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 such update when it becomes available on the Website the next time you log in to your Merchant Account. In addition, by giving written notice to you we may change our fees, charges and discounts resulting from 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.

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 Services under this Agreement. All fees related to the Service, are made 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, shall be on your account and be borne by you.

Payment Method. VersaPay may debit your Merchant Account to collect fees and charges, taxes and other amounts owing to VersaPay in connection with this Agreement. All such debits will appear in the Transaction History maintained by VersaPay in respect of your account.

YOUR CONDUCT

Conduct. In connection with your use of our Website, your Merchant Account, or the Services, or in the course of your interactions with VersaPay, a User or a third party, you agree as follows:

(a) You will comply in all respects with this Agreement, the Acceptable Use Policy or any other agreement that you have entered into with us;

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

(c) You will not infringe VersaPay’s or any third party’s copyright, patent, trade-mark, trade secret or other intellectual property rights, or rights of publicity or privacy;

(d) On our reasonable request, you will provide confirmation of your identity or any Information you provide to us and otherwise cooperate with any investigation of your identity and/or transactions; you agree to cooperate with VersaPay in connection with its tests and investigations, and otherwise to ensure compliance with Applicable Law.

(e) You will not allow your Merchant Account to have a negative Balance;

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

(g) You will not access the Services from a country that is not included on VersaPay’s permitted countries list;

(h) You will not facilitate any viruses, trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;

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

(j) You will not use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our Website or the Services; and

(k) 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.

INTELLECTUAL PROPERTY

Intellectual Property. “VersaPay” and all related logos, products and services described in our Website are either trade-marks or registered trade-marks of VersaPay or its licensors. You may not copy, imitate or use them without VersaPay’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trade-marks, and/or trade dress of VersaPay. You may not copy, imitate, or use them without our prior written consent. You may use HTML logos provided by VersaPay through our merchant services, auction tools features or affiliate programs without prior written consent for the purpose of directing web traffic to the Service. You may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to VersaPay or the Service or display them in any manner that implies VersaPay’s sponsorship or endorsement. All right, title and interest in and to the VersaPay Website and any content thereon is the exclusive property of VersaPay and its licensors.

License Grant VersaPay grants you a revocable, non-exclusive, non-transferable license to use VersaPay software applications that you download to your computer, device, or other platform pursuant to your use of the Services. This license grant includes the software and all updates, upgrades, new versions and replacement software, as described herein for your personal use only. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all VersaPay documentation accompanying the Services. If you do not comply with VersaPay’s implementation and use requirements you will be liable for all resulting damages suffered by you, VersaPay and third parties. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the software. You acknowledge that all rights, title and interest to VersaPay’s software are owned by VersaPay. If you are using the VersaPay services on the VersaPay Website, or other Website or platform hosted by VersaPay, or a third part, and are not downloading VersaPay’s software, then this section does not apply to your use of the hosted VersaPay services.

SECURITY AND ELECTRONIC COMMUNICATION

Security. VersaPay shall 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.

VersaPay’s Procedures, Etc. 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.

Access to Account. You are responsible for ensuring that the Services and your Merchant Account will only be used by properly authorized persons on your behalf, and you agree to be bound by any actions or omissions resulting from the use of the Services and your Merchant Account, including any Electronic Communication. Without limiting the generality of the foregoing, you acknowledge and agree that use of your Merchant Account, including any Electronic Communication made by you or purporting to have been made on your behalf will be binding on you.

Web Links. There may be links in the Services from VersaPay’s websites to websites not owned or operated by VersaPay. VersaPay makes no representations about, does not endorse, is not responsible for the content, products, services, privacy policies or practices relating to such other websites and is not responsible for any losses realized by you or claims made against you relating to your use of such other websites.

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

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 Merchant 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.

Unsecure Electronic Channels. The Merchant acknowledges and agrees that if it uses, or if it authorizes and directs 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. The Merchant assumes full responsibility for the risks associated with such Electronic Channels and Electronic Communication.

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 Merchant Account and/or the Services, or if you become aware of any actual or threatened use of your Merchant Account and/or the Services in a manner contrary to this Agreement.

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.

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.

CONFIDENTIALITY AND PRIVACY

Confidentiality Obligations. VersaPay agrees to use the Confidential Information provided by the other party solely for the purpose of the Services, and will not disclose such Confidential Information to any Person except in the following circumstances:

to its 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;

to the extent permitted or required under Applicable Law;

unless otherwise agreed in writing by the parties, in connection with any dispute resolution process or legal proceeding between the parties; or

otherwise if agreed in writing by the other party.

Personal Information. Protecting your privacy is very important to VersaPay. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your Information.

Privacy of Others. If you receive Information or Personal Information about another VersaPay User through the Service, you must keep the Information or Personal Information confidential and only use it in connection with the Service. Any Information or Personal Information disclosed by another VersaPay User to you is disclosed pursuant to consent given by that other User for the express purpose of completing a transaction using the Service and the terms of such consent do not permit you to collect, retain, use or disclose the Information or Personal Information for any other purpose. Furthermore, you may not disclose or distribute a VersaPay User’s Information or Personal Information to a third party or use the Information or Personal Information for marketing purposes unless you receive the User’s express consent to do so.

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

DISPUTES AND LIABILITY

Your Responsibility. You are responsible for all Reversals, Chargebacks, Claims, fees, fines, penalties and other liability incurred by VersaPay, other users of the Services or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. Subject to Section 11.2 (Personal Information), and except to the extent caused directly by negligence or willful misconduct on the part of VersaPay, you agree to indemnify and hold harmless VersaPay for all Reversals, Chargebacks, Claims, fees, fines, penalties and other liability incurred by VersaPay or any third party due to or arising out of your breach of this Agreement and/or your use of the Services.

Damages and Exclusion. A party’s liability in any circumstance pursuant to this Agreement is limited to the actual amount of direct damages. In no event, regardless of the cause of action, and even where there is negligence or willful misconduct by a party, will either party (and, in respect of VersaPay, our parent, directors, officers and employees) be responsible to the other party for any indirect or exemplary damages, including lost profits.

Temporary Holds for Disputed Transactions. If a buyer of services from you files a Claim, or seeks a Reversal, or if the payment is subject to Chargeback, VersaPay will place a temporary hold on the funds in your Merchant Account to cover the amount of the 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 the Merchant’s success. If you are unsuccessful in resolving the disputed transaction, VersaPay will remove the funds from your Merchant Account.

Disputes with VersaPay. 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 Service online through the VersaPay Help Centre at any time, or by calling (866) 999-VPAY from 6 AM to 8 PM Eastern Time.

Optional Arbitration. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000,

(i) if you are the party requesting relief, you may elect to resolve the dispute through binding nonappearance-based arbitration, and

(ii) if VersaPay is the party requesting relief, we may request but you must consent to resolve the dispute through binding nonappearance-based arbitration.

Such arbitration will be conducted through an established alternative dispute resolution (“ADR“) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

No Warranty. We provide our Services “as is” and without any express, implied or statutory warranty.VersaPay does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. 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 Service is dependent upon many factors outside of our control.

Reimbursement for Your Liability. In the event that you are liable for any amounts owed to VersaPay, VersaPay may immediately remove such amounts from Your Balance. If you do not have a Balance that is 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.

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.

Release of VersaPay. If you have a dispute with one or more Users, you 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.

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 of our actions. If we limit access to your Merchant Account, we will provide you with notice of our actions and the opportunity to request restoration of access if appropriate.

TERMINATION

By You. You may terminate this Agreement at any time, without any penalty.

By Either Party. 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 written notice thereof; or

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

By VersaPay.

(a) VersaPay may terminate this Agreement, upon written notice to you, effective immediately or at such later date as specified, and without any penalty,

(i) in the event that a decision or action of a court, governmental authority, regulatory body, other public authority or payment card association declares, renders or otherwise determines that this Agreement or Versapay’s participation in this Agreement is illegal or in conflict with the law or rules enforced by such authority or credit card association; or

(ii) in the event that VersaPay deems you to be financially insecure;

(iii) if you do not establish alternative payment arrangements acceptable to VersaPay after revoking your consent to debit your account under the PAD Agreement.

(b) VersaPay, in its sole discretion, may terminate this Agreement, your access to its Website, and/or your access to the Services for any reason and at any time upon notice to you and payment to you of any unrestricted funds in Your Balance.

Restricted Activity. 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 Merchant 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.

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 shall 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 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.

MISCELLANEOUS

Relationship. VersaPay is an independent contractor. Subject to Section 6.1 (VersaPay is Limited Agent), nothing contained in this Agreement will create a partnership, joint venture, principal-and-agent relationship, or any similar relationship, between the parties.

Entire Agreement. This Agreement, the Privacy Policy, Acceptable Use Policy, 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 and discussions between the parties.

Representation and Warranty. All statements made on your Merchant Agreement for this Agreement are true as of the date of your execution of this Agreement. 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. Except as expressly provided in this Agreement, in providing services to you, we will not be acting in the capacity of your agent, partner, or joint venturer, and we are acting as an independent contractor. Each party agrees that the other party 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 shall not, without the prior written consent of the non-disclosing party, include any of the terms of this Agreement.

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

(a) Notice to you 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 Merchant Account. Effective notice to you may also be given by electronic mail to the email address listed in your Merchant Account. 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 Merchant 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: Legal Department, #1150, 1500 West Georgia Street, Vancouver, British Columbia, Canada V6G 2Z6.

Notice given as permitted by this section (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 Merchant Account if you withdraw your consent to receive Electronic Communications.

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.

Remedies cumulative. Except as otherwise provided in this Agreement, the rights and remedies provided in this Agreement to a party 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.

Governing Law. This Agreement is governed by, and is to be interpreted, construed and enforced in accordance with, the laws of Ontario and the laws of Canada applicable in Ontario, excluding any rule or principle of conflicts of law that may provide otherwise.

Jurisdiction. The parties irrevocably attorn to the jurisdiction of the courts of Ontario, which will have non-exclusive jurisdiction over any matter arising out of this Agreement.

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.

Amendments. We may amend this Agreement from time to time at our discretion by giving 60 Days prior written notice to you. For greater certainty, notice of an amended Agreement may be given to you by posting the amended Agreement on our Website on the secure.versapay.com page. You will be notified of any such update when it becomes available on the Website the next time you log in to your Merchant Account. You acknowledge that your continued use of the Services after notice of an amendment shall constitute your agreement to be bound by the amended Agreement. 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 Merchant 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 or 30 days from the date that you access your Merchant Account and the notice is presented to you. Any notice of termination given pursuant to this clause must be in accordance with Article 12 (Termination) and Section 14.4 (Notice). 

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

Survival. The provisions of Articles 1, 6, 11, 12 and Schedule 1 of this agreement survive the termination of this agreement.

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, labour strife, riots, war, non-performance of our vendors or suppliers, acts of God, but not including general economic conditions.

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

Definitions.

“Acceptable Use Policy” means the Policy in connection with the use of the service, available on the Website, as may be amended from time to time at our discretion by giving 60 Days prior written notice to you by posting the amended Acceptable Use Policy on our Website. You will be notified of any such update when it becomes available on the Website the next time you log in to your Merchant Account.

“Account” or “VersaPay Account” means a Merchant Account or Consumer Account established on the books of VersaPay used for VersaPay’s EMT Service.

“Add Funds” means your ability to add money into your Merchant Account.

“Agreement” means this agreement 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 having the force of law in any jurisdiction (collectively, the “Law“) 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.

“Application” means the VersaPay EMT Application for Merchant Payment Services.

“Authorize” or “Authorization” means you authorize a merchant or other consumer with a VersaPay Account to collect a payment from your Merchant Account.

“Business Days” means Monday through Friday, excluding Holidays.

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

“Claim” means a claim filed directly with VersaPay in the Online Resolution Center pursuant to Section 12.4 (Disputes with VersaPay) of this Agreement.

“Confirmed Address” means an address that has been reviewed by VersaPay and found highly likely to be that of the User to which it is associated.

Confidential Information” includes all non-public, confidential information, whether provided in written, oral, or electronic form, whether or not identified as confidential at the time of disclosure, relating to the disclosing party’s, or its affiliates, businesses, operations, and assets or the business of its suppliers and customers, whether provided by the disclosing party or its representatives, at any time before or after the date of this Agreement. For greater certainty, Confidential Information includes Personal Information provided by the disclosing party.

Consumer Account” means an Account used for non-business purposes and used primarily for personal, family, or household purposes.

“Currency Conversion Fee” means the fee whenever VersaPay performs a currency conversion, determined by VersaPay. The Currency Conversion Fee is determined as a percentage added to the exchange rate and set out in Schedule A to your Application. Such 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 Section 14.10 (Amendments) of this Agreement.

“Customer Service” 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.

“Default Funding Methods” means the order in which VersaPay uses your payment methods to fund a transaction if you do not select a Preferred Payment Method.

“Dispute” means a dispute filed directly with VersaPay in the Online Resolution Center pursuant to Section 12.4 (Disputes with VersaPay) of this Agreement.

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

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 those amounts stated in Article 7 (Fees) of this Agreement.

“Information” means any confidential and/or personally identifiable information or other information related to an Account or User, including but not limited to the following: name, email address, billing/shipping address, phone number and financial information.

“Instant Transfer” means a payment funded from the sender’s bank account in which VersaPay credits the recipient instantly.

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

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

“Merchant Processing Delay” means a delay between the time you Authorize a payment and the merchant processes your payment.

“PAD” means pre-authorized debit.

“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 payment method used to fund a transaction. The following payment methods may be used to fund a transaction: Your Balance, Instant Transfer, EFT, credit card, debit card issued by Visa or MasterCard.

“Payment Review” means the process described in Section 3.6 (Payment Review) of this Agreement.

Personal Information” has the meaning given to it in PIPEDA.

“Personal Payment” means an amount sent between two recurring individuals (not to or from a business) without a purchase.

PIPEDA” means the Personal Information Protection and Electronic Documents Act (Canada).

“Policy” or “Policies” means any Policy or other agreement between you and VersaPay that you entered into on the VersaPay Website, or in connection with your use of the Services.

“Pooled Accounts” means Accounts at one or more banks in which VersaPay will place User Balances.

“Preferred Funding Method” means a payment method that you select to fund a payment instead of using the Default Funding Method.

“Recurring Payments” means a payment in which you provide an advance Authorization to a merchant to charge your Merchant 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 Merchant Account that we hold in order to protect against the risk of Reversals, Chargebacks, Claims or any other liability related to your Merchant Account and/or use of the Services.

“Restricted Activities” means those activities or conduct described in Article 8 (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.

“Send Money” means your ability to send money though the Service.

“Service” or “Services” means all payment services and related products available through www.VersaPay.com

“Substantial Change” means a change to the terms of this Agreement that reduces your rights or increases your responsibilities.

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

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

“Verified” means that you have completed our verification process to establish your identity with VersaPay. Verification does not constitute an endorsement of a User, or guarantee a User’s business practices.

VersaEFT” means the VersaPay product/service that electronically transfers funds and accepts payments.

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

“VersaPay Debit Card” means a VersaPay branded debit card that is accepted anywhere that accepts Visa and/or MasterCard Debit Card.

“Your Balance” means any money that you have in your Merchant 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 shall not affect the construction or interpretation hereof;
  3. words denoting the singular number only shall 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.