This agreement (the “Agreement”) is between you and VersaPay. It is a legal document that governs your access to, and use of, VersaPay’s online service for receiving and paying invoices from your suppliers (the “Service”). Your suppliers must subscribe to VersaPay’s services in order for you to use the Service to pay that supplier’s invoices. In this Agreement, the terms:
“VersaPay”, “we”, “us” and “our” refer to VersaPay Corporation, an Ontario corporation with its principal place of business at 210-214 King St. W, Toronto, Ontario M5H 3S6; and
“you” and “your” refer to the business entity (whether in the form of a corporation, partnership, sole proprietorship, unincorporated association or other entity that carries on business) on behalf of which you are using the Service.
By registering to use the Service you agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement you must not use or access the Service. When you register to use the Service you are asked to confirm that you have read and agree to this Agreement. Notwithstanding the foregoing, VersaPay reserves the right to reject any registration for any reason. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
- Changes to This Agreement
From time to time, it may be necessary for VersaPay to update or revise certain provisions of this Agreement. We will date and post the most current version of this Agreement on our website. Any changes will be effective upon posting the revised version of the Agreement (or such later effective date as may be indicated at the top of the revised Agreement). If in our sole discretion we deem a revision to be material, we will notify you via the Service and/or by email to the email address in your Registration Data. If you don’t agree to the changes or to any terms in this Agreement, you must cancel and stop using the Service.
- Use of the Service
(a) You agree that you will (i) be responsible for the accuracy, quality and legality of information that you provide in connection with your use of the Service, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of Service, and notify us promptly of any such unauthorized access or use, and (d) use the Service only in accordance with the terms of this Agreement and applicable law.
(b) You agree that you will not use the Service in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. You agree that you will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other web site, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service. This means, among other activities, that you agree not to engage in the practices of screen scraping, database scraping, or any other activity with the purpose of obtaining lists of users or other information. You agree that you will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use and enjoyment of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. You will not sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Service to any third party. You will not use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party.
(b) After you are registered to use the Service, a supplier may set up AutoPay on your behalf. Your continued use of the Service using AutoPay shall constitute your agreement to the AutoPay arrangements made on your behalf, and you may cancel your enrolment in AutoPay at any time. However, if one payment to a supplier (but no more) has been processed and you deny having authorized that supplier to register you for AutoPay to that supplier, we will reverse the payment by charging it back to the supplier and the corresponding invoice will continue as unpaid.
- Consent to Electronic Communications And Solicitation
(a) In this Agreement:
“Electronic Channel” means any telecommunication or electronic transmission method which may be used in connection with the our 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, agreement, consent or other communication sent, received or accepted using an Electronic Channel.
By registering to use the Service, you understand that we may communicate with you, by Electronic Communication, regarding the Service, including but not limited to: (i) notices about your use of the Service, including any notices concerning violations of use; (ii) updates; and (iii) promotional information and materials regarding VersaPay’s products and services, via electronic mail. We give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.
(b) 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 our Services, 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.
- Third Party Content
To the extent that the Service contains content and information from third party providers and/or links to their websites (“Third Party Content”), such content is not under the control of VersaPay and VersaPay is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. VersaPay is providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by VersaPay of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. VersaPay does reserve the right to remove content that, in VersaPay’s judgment, does not meet its standards, but VersaPay is not responsible for any failure or delay in removing such material. VersaPay is not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party’s background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release VersaPay (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
- Intellectual Property
“VersaPay“, “ARC”, and all related logos, marks and trade names relating to the Service are either trade-marks or registered trade-marks of VersaPay and our subsidiaries and affiliates. The Service, related software and source code and all content (other than your data and information) are the exclusive property of VersaPay, our subsidiaries, affiliates and licensors, and are protected by Canadian and international copyright and other intellectual property laws. You may not sell, rent, lease, copy, alter, reproduce, redistribute, reverse engineer, modify, decompile or otherwise derive the source code or architecture of, nor create derivative works from or use the Service or any of the content (except as set out in Section 7). We reserve all rights not granted under this Agreement. Any reproduction, modification or redistribution of the software is expressly prohibited, and may result in severe civil and criminal penalties. VersaPay’s software, its structure, sequence and organization and source code are considered trade secrets of VersaPay, its affiliates or its suppliers and are protected by trade secret laws.. Without VersaPay’s prior permission, you agree not to display or use in any manner, any of VersaPay’s trademarks, whether registered or not.
- Our License Grant to You.
If your head office is in Canada, VersaPay grants you a limited, non-exclusive, non-transferable, non-sub-licensable license to use the Service in Canada while the Agreement is in effect. If your head office is in the United States, VersaPay grants you a limited, non-exclusive, non-transferable, non-sub-licensable license to use the Service in the United States while the Agreement is in effect. Your use of the Service is subject always to the terms of this Agreement. To the extent that the Service includes materials that are downloaded to a server, computer, device or other platform, you must comply with the reasonable implementation and use requirements provided by VersaPay. This license is revocable upon termination or expiration of this Agreement and when the Service is discontinued. However, (a) such license is subject to all obligations and restrictions imposed on you in this Agreement; (b) such license extends only to your use of the Service solely to perform the functions specified and in compliance therewith; (c) such license extends only to your employees, agents and contractors, but only to the extent that such employees, agents and contractors use the Services solely for the purposes permitted under this Agreement, and (d) at all times you shall treat the Service, related software and source code and all content (other than your data) as VersaPay’s confidential information.
- Your License Grant to Us.
VersaPay and our subsidiaries and affiliates require the use of your Registration Data to provide the Service. Therefore, by providing your Registration Data to VersaPay, you grant VersaPay and our subsidiaries and affiliates a worldwide, non-exclusive, transferable and sublicensable, fully paid up, royalty-free license, while the Agreement is in effect, to use, transmit, communicate by telecommunication, display, publish, reproduce, distribute, modify, and create derivative works from your Registration Data solely in connection with providing and to the extent necessary to provide the Service to you.
- Limitation of Liability and Disclaimer of Warranties
(a) Under no circumstances shall VersaPay’s total liability to you or any third party arising out of or related to this agreement exceed a maximum of one thousand dollars ($1,000.00) regardless of whether any action or claim is based on warranty, contract, tort or otherwise.
(b) Neither party shall be liable to the other party or to any third party for any consequential, indirect, special, incidental, reliance, or exemplary damages arising out of or relating to this agreement or the service, 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 labour claims), even if such party has been advised of the possibility of such damages.
You agree to indemnify, defend, and hold harmless VersaPay, its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any claim by you for reimbursement of a pre-authorized debit initiated by VersaPay pursuant an AutoPay arrangement made by a supplier on your behalf if you have not given us notice that you do not agree to use AutoPay, (ii) any failure by you or any of your employees, agents or subcontractors to comply with the terms of this Agreement; (iii) any warranty or representation made by you being false or misleading; (iv) any representation or warranty made by you or any of your employees, agents or subcontractors to any third person other than as specifically authorized by this Agreement, (v) negligence of you or any of your employees, agents or subcontractors, or (vi) any alleged or actual violations by you or any of your employees, agents or subcontractors of any payment card association rules, governmental laws, regulations or rules.
- Updates to the Service
VersaPay reserves the right at anytime and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that VersaPay shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
- Termination and Cancellation
(a) You may cancel your use of the Service at any time. Your cancellation does not affect any in progress payments or your obligation to pay outstanding invoices from any of your suppliers.
Except as set out in section 12(b), the rights, remedies, and powers provided to a party under 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.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim.
(b) Conflict of terms
If you wish to arrange direct payment from a Canadian bank account to pay invoices from a Canadian supplier you will be required to agree to VersaPay’s form of pre-authorized debit agreement (“PAD Agreement”) which will be presented to you within the Service. If there is any inconsistency between the terms of this Agreement and those in the Pad Agreement or in any document entered into or delivered under this Agreement, the terms of this Agreement will prevail.
(c) No partnership, etc.
Nothing contained in this Agreement will create a partnership, joint venture, principal-and-agent relationship, or any similar relationship between the parties.
The invalidity or unenforceability of any particular term of this Agreement will not affect or limit the validity or enforceability of the remaining provisions.
No term or condition of this Agreement may be waived unless both parties sign a written waiver.
(f) Force Majeure
“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, power or equipment failures, labour strife, civil unrest, non-performance of our vendors or our suppliers and acts of God, but not including general economic conditions. 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 is suspended by reason of Force Majeure, that party must give notice to the other party, providing all necessary details. That party must give a similar notice as promptly as reasonably practicable when Force Majeure has ended.
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 Section 2 (Use of the Service), 3 (Registration), 4 (Consent to Electronic Communications and Solicitation), 5 (Third Party Content), 6 (VersaPay Software Licenses), 7 (Copyright and Trademark Notices), 8 (Intellectual Property), 9 (Limitation of Liability and Disclaimer of Warranties), 10 (Indemnification), 13 (Remedies), 14 (General) and 15 (Governing Law; Waiver of Jury Trial) and all additional terms and conditions necessary for the correct interpretation of the foregoing. Further, all monetary and non-monetary obligations of the parties owing and/or to be performed or discharged prior to the date of termination will survive termination until they have been performed or discharged.
No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein.
Either party shall be permitted to assign this Agreement to an affiliate or to a purchaser of all or substantially all of the shares or assets of the party upon written notice to the other party.
(j) Headings, Etc.
The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
This Agreement enures to the benefit of and binds the parties and their respective successors and permitted assigns.
- Governing Law; Waiver of Jury Trial; Language
(a) When New York law governs.
(i) If your business offices are in the United States of America, the laws of the State of New York and the federal laws of the United States applicable in New York, excluding any rule or principle of conflicts of law that may provide otherwise, govern this Agreement.
(ii) When New York law governs, any action or proceeding relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes New York.
(iii) 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.
(b) When Ontario law governs.
(i) If your business offices are in Canada, the laws of Ontario and the laws of Canada applicable in that province, excluding any rule or principle of conflicts of law that may provide otherwise, govern this Agreement.
(ii) When Ontario law governs, 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.
It is the express wish of the parties that this agreement and any related documents 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.