Terms of Service

Last Updated: November, 2023

IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Services (as defined below).

This Agreement creates a binding legal agreement between you (“Customer”) and VoPay International Inc. with a principal place of business at 594-1055 Dunsmuir St, Vancouver, BC, V7X 1L2 Canada (“VoPay”).

BY USING THE SERVICES, CUSTOMER IRREVOCABLY ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, CUSTOMER MUST NOT USE THE SERVICES.  Customer also agrees to ensure that anyone who uses the Services using its password or login information abides by this Agreement.

IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

By accepting this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement, as well as VoPay’s Privacy Policy located at https://vopay.com/en-ca/legal/services/privacy-policy/ (the “Privacy Policy”), as it may be amended from time to time in the future.

VoPay may update this Agreement or the Privacy Policy at any time, without notification to Customer, and Customer should review this Agreement and the Privacy Policy from time to time by accessing the Services.  Customer’s continued use of the Services will be deemed irrevocable acceptance of any such revisions.  Before Customer continues, Customer should print or save a local copy of this Agreement and the Privacy Policy for its records. 

If Customer is an individual, in order to enter into this Agreement, he or she must have reached the legal age of majority in his or her jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is Customer’s responsibility to ensure that Customer is legally eligible to enter into this Agreement under Applicable Laws.  If Customer accepts this Agreement, Customer represents that Customer has the capacity to be bound by it.

As used in this Agreement:

1. Definitions.

1.1 “Account”

means any action taken on or related to a Platform Account that Users initiate, submit or perform, either through the System or the VoPay API, including communication regarding the Services as related to that Platform Account.

1.2 “Affiliate”

means, in relation to a Party, another person or entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party, or a Party’s principal partners, shareholders, or owners of some other ownership interest.

1.3 “Anonymized Data”

means Customer Data which has been stripped of information potentially identifying Customer or which contains any Personal Information, and which has been manipulated or combined with other data to provide generalized anonymous information that cannot be reverse-engineered to identify Customer or any other person.

1.4 “Applicable Laws”

means, with respect to any Person, any domestic or foreign, federal, provincial or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, judgment, decree or other requirement of any Regulator which is legally binding and applicable to such Person or any of its Affiliates or any of their respective properties, assets, equity holders, officers, directors, members, partners, employees, consultants or agents.

1.5 “Confidential Information”

means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, client, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.  Information derived from or concerning the Services, the System, user manuals, handbooks, online materials, specifications or forms made available by VoPay that describe the features, functionality or operation of the System, and the terms of this Agreement are deemed to be the Confidential Information of VoPay.

1.6 “Customer Data”

means any data, information or information contained in any database, template or other similar document submitted by Customer through the Services or provided by Customer to VoPay as part of the Services including but not limited to Customer know-your-customer information and Customer Transaction data.

1.7 “Governmental Authority“

is any governmental or regulatory authority, agency, commission or board of any federal, state, provincial, municipal or local government, legislature or parliament, or any court or, without limitation, any other law, regulation or rule-making entity having or purporting to have jurisdiction in the relevant circumstances.

1.8 “Order Form”

means, collectively, the online or written order documents representing Customer’s initial subscription to the Services, and any subsequent modifications to the subscription or additional subscriptions agreed to between the parties in writing, that, upon execution, are incorporated in and made a part of this Agreement from time to time.

1.9 “Payment Services”

means the payment services supplied by VoPay Financial Inc. under the VoPay Financial Canada Inc. Payment Services Agreement (“VFI TOS”) and Ancillary Terms and may include: (i) the service of an Account, as discussed in Section 4 of the VFI TOS; (ii) Interac e-Transfer Service, as discussed in Section 6 of the VFI TOS; and (iii) EFT Services, as discussed in Section 7 of the VFI TOS.

1.10 “Personal Information”

means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.

1.11 “Platform Account”

means the Customer’s unique VoPay account through which the Customer may access the Services.

1.12 “Privacy Laws”

means all applicable data privacy, data protection, and cybersecurity legislation, rules and regulations governing the collection, use, processing and disclosure of Personal Information, including laws outside the jurisdictions where Customer has subscribed to use the Payment Services.

1.13 “Professional Services”

means any professional services described in an SOW.

1.14 “Services”

means the online software as a service offering delivered by VoPay to the Customer including without limitation the VoPay Account Portal, VoPay Dashboard functionality, the VoPay APIs, the VoPay Sandbox and other aspects of the System, as made available by VoPay from time to time and as specified in the Order Form.

1.15 “SOW”

is defined in Section 2.4.

1.16 “System”

means the technology, including hardware, software and systems, used by VoPay and its third-party suppliers to deliver the Services to Customer in accordance with this Agreement.

1.17 “Term”

is defined in Section 7.1.

1.18 “Transaction”

means any Card, e-transfer or electronic funds transfer (“EFT”) authorization, credit, debit, ticket only, capture or settlement request, or decline transaction completed or submitted by Customer via the Services.

1.19 “Users”

means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services on behalf of Customer and have been supplied user identifications and passwords for this purpose.

1.20 “VoPay API”

means VoPay’s application programming interfaces, as made available by VoPay from time to time.

1.21 “VoPay Property”

means the Services, System, Aggregate Data, and all other intellectual property created, used or provided by VoPay to Customer and/or Partner pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto.

2. Subscription to the Services.

Conditional on Customer (a) complying with the provisions of this Agreement, including but not limited to paying the fees as required by this Agreement, and (b) cooperating with reasonable requests of VoPay, VoPay hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services in accordance with this Agreement solely for Customer’s business purposes and not for resale. Customer may order the Services under this Agreement by placing written, signed orders on an Order Form.  Only the execution of an Order Form by Customer and by VoPay constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by VoPay with respect to future functionality or features.

2.1 Platform Account.

The Platform Account can help Users use the Services, which may include the Payments Services. The Platform Account may conduct Activity on Users’ behalf, as long as it does so according to the Agreement. Activity may be submitted, initiated or performed through the Platform Account or through the VoPay API, and this includes the communication of information about Transactions (if applicable), as well as other features as described in the Documentation. The Platform Account may restrict Users’ ability to (a) view, access or activate certain Services as long as in each case it does so according to the Agreement and the Order Form. Users should read the Agreement and Order Form carefully to understand the nature of the Services and the Activity that the Services may conduct on your behalf.

2.2 VoPay APIs License.

Subject to Customer’s compliance with this Agreement, VoPay grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to access and make calls to the VoPay APIs in order to provide payment services to Customer’s end users through its integration with the VoPay APIs within Customer’s website and/or mobile application (the “API License”).  Upon request, VoPay will issue access credentials to Customer to allow Customer to access the VoPay APIs (“API Credentials”).  The API License may be immediately revoked or terminated by VoPay if Customer shares its API Credentials with any third party (other than third-party service providers who need such API Credentials in order to perform services for Customer) or if Customer breaches this Agreement.

2.3 Professional Services.

VoPay and Customer may enter in to written statements of work under this Agreement for Professional Services to Customer (each, an “SOW”).  The SOW may set out fees, payment terms, description of services, performance standards and timeline for delivery. Upon execution by each Party, an SOW will be incorporated by reference in to this Agreement.  The terms and conditions of the main body of this Agreement will prevail over any provision in the SOW.  If the term of an SOW extends past the termination or expiry of the Term, then such SOW, and this Agreement, will survive until the termination or expiry of the term of that SOW.

2.4 Support.

Subject to the terms of this Agreement, including, without limitation, the payment of the fees set forth in Section 4, VoPay shall use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation, provided that VoPay will not have an obligation to provide a correction for all such nonconformities.

2.5 System Updates and Scheduled Downtime.

VoPay may update any aspect of the Services or System at any time in its sole discretion.  VoPay may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to 1) provide advance notice where practicable, and 2) conduct maintenance outside normal business hours.

2.6 Privacy Policy.

To the extent any Customer Data contains Personal Information, it will be solely used, collected, stored and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Policy.

2.7 Internet Security Disclaimer.

Customer acknowledges and agrees that VoPay exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of VoPay’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Services over the Internet.

2.8 Limitation, Suspension or Termination of Access.

In addition to VoPay’s other rights and remedies under this Agreement, VoPay may suspend, terminate or limit (in VoPay’s sole discretion) Customer’s access to or use of the Services, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other Governmental Authority request or order; or (c) otherwise protect VoPay from harm to its reputation or business.  VoPay will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable.  In the event of a limitation or suspension, VoPay will restore Customer’s access to the Services when VoPay determines the event has been resolved.  Nothing in this Agreement will limit VoPay’s right to take any action or invoke remedies, or will act as a waiver of VoPay’s rights in any way with respect to any of the foregoing activities.  VoPay will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Services under this Section 2.8. In the event VoPay imposes a limitation, suspension or termination action which is not a result of Customer’s negligence or wrongdoing, Customer will have the right to terminate this Agreement for convenience by providing written notice to VoPay within 30 days following Customers’ receipt of notice of such action.  Any such termination will take effect immediately following the date VoPay receives Customer’s notice of termination.

2.9 Subcontractors.

Customer acknowledges and agrees that VoPay may retain the services of independent contractors (“Subcontractors”) from time to time to provide or to assist VoPay in providing the Services.  Any Subcontractors used by VoPay to provide the Services shall remain under the direction and control of VoPay, and VoPay shall be fully and personally liable for all acts or omissions of the Subcontractors.

3. Customer’s Use Of The Services.

3.1 Access and Security Guidelines.

Subject to any limitations associated with Customer’s Platform Account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to VoPay for each User.  Users may only access and use the Services with their specific UserID.  Customer is responsible for ensuring that UserIDs are not shared and that Users retain the confidentiality of their UserIDs.  Customer is responsible for any and all activity occurring under the UserIDs associated with Customer’s Platform Account.  Customer will promptly notify VoPay of any actual or suspected unauthorized use of the Services. VoPay may require that a UserID be replaced at any time.

3.2 Customer Responsibilities and Restrictions.

Customer will, at all times, comply with all Applicable Laws in using the Services.  Customer agrees that it will not, and will not permit any person, including without limitation the Users, to:

(a) use the Services other than as permitted by this Agreement;

(b) breach this Agreement (including any applicableTerms in VoPay Financial Canada Inc.’s Terms Of Service), or any applicable terms or policies of VoPay;

(c) provide false or inaccurate information to VoPay, including false or inaccurate information about Customer’s or the Users’ identity;

(d) use the Services in a manner or for any purpose that violates, infringes or appropriates any person’s privacy rights, publicity rights, intellectual property rights, proprietary rights, contractual rights or any other legal rights;

(e) use the Services to upload, collect, transmit, store, use or process, or ask VoPay to obtain from third parties, any data: (i) that Customer does not have the lawful right to copy, transmit, distribute and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); or (ii) for which Customer does not have the consent or permission from the owner of any Personal Information contained therein;

(f) use the Services in a manner or for any purpose that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other Personal Information in a misleading manner or for fraudulent or misleading purposes;

(g) initiate, submit, complete or otherwise engage in Transactions involving illegal goods, including without limitation counterfeit goods, stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety;

(h) initiate, submit, complete or otherwise engage in Transactions involving illegal services, including without limitation counterfeit services, any internet or online gambling transaction (whether or not gambling is legal in any applicable jurisdiction), Ponzi and/or pyramid schemes, and money laundering;

(i) use the Services in a manner or for any purpose that is libellous or defamatory, harmful to minors in any way, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;

(j) use the Services in a manner or for any purpose that is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by VoPay;

(k) use the Services to impersonate a VoPay employee, or any other person, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity;

(l) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise permitted in this Agreement, or otherwise use the Services for the benefit of a third party or to operate a service bureau;

(m) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services;

(n) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services; or

(o) interfere with, or attempt to interfere with, the Services, the System or any other networks or services connected to the Services, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.

3.3 Customer Data.

Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights or Applicable Laws; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or Personal Information.  VoPay may take remedial action if Customer Data violates this Section 3.3, however, VoPay is under no obligation to review Customer Data for accuracy or potential liability.

3.4 VoPay’s Responsibilities.

VoPay will, at all times, comply with all Applicable Laws in the provision of the Services. VoPay agrees that it will not, and will not permit any person, including its representatives, to use Confidential Information of the Customer for any purpose other than as expressly permitted under this Agreement or in a manner that violates, infringes or appropriates any person’s privacy rights, publicity rights, intellectual property rights, proprietary rights, contractual rights or any other legal rights.

4. Fees, Payment And Suspension.

4.1 Order Form.

The Order Form shall set out the principal commercial terms applicable between the Parties.  The Order Form shall also contain certain precisions as to the rights and obligations of the Parties all of which specific stipulations shall supersede the terms of this Agreement where applicable.

4.2 Services Fee.

As consideration for the subscription to the Services, Customer will pay VoPay the fees set forth in and in accordance with the Order Form (“Services Fees”). VoPay may, at its discretion, modify the Service Fees at any time by providing not less than 15 days prior written notice (via email) to Customer. In the event the increase in Service Fees is greater than the increase in the annual consumer price index applicable in Canada, Customer shall have the right to immediately terminate this Agreement upon the receipt of such notice at its sole discretion.

4.3 Fees for Professional Services.

Customer will pay all fees set forth in a SOW and invoiced by VoPay for the performance of Professional Services (“Professional Services Fees”), including any fees set out in an SOW for additional work beyond the original scope that may be requested by Customer.

4.4 Payment and Late Charges.

4.4.1 Payment

Services Fees will be billed as described in the applicable Order Form and Professional Services Fees will be billed as described in the applicable SOW.  Unless otherwise agreed to in the Order Form or SOW, invoiced amounts are due within 30 days following the date of invoice.   In the event the Customer disputes fees invoiced to it by VoPay, VoPay does not waive Customers requirement to pay the affected invoice in full but does commit to make all reasonable efforts to resolve such disputes in good faith in a timely manner.

4.4.2 Late Charges.

Any amount not paid by Customer when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by Applicable Law, whichever is greater, determined and compounded daily from the date due until the date paid. Customer will also reimburse all reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by VoPay to collect any amounts not paid when due. VoPay may, upon thirty (30) days prior notice, in its sole and absolute discretion, suspend access to or availability of the Services when payment has not been paid despite the aforementioned notice to Customer.

4.5 Tax.

All fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on VoPay’s net income. Customer acknowledges that VoPay may have reporting requirements to the Canada Revenue Agency in connection with payments for goods or services under this Agreement.

4.6 Suspension.

VoPay reserves the right (in addition to any other rights or remedies VoPay may have) to discontinue the Services and suspend all UserIDs and Customer’s access to the Services if any Fees set forth in the Order Form are more than ten days overdue until such amounts are paid in full.  Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.

4.7 Security Deposit.

Where indicated in the Order Form or on request by VoPay, Partner shall supply a security deposit amount to be held by VoPay for the Term and for at least 180 days thereafter or until such time as VoPay determines that it is no longer exposed to risk associated with credit risk arising hereunder or under the Payment Services Agreement (the “Security Deposit”).  The Security Deposit shall not bear interest and shall be funded within two (2) days of the Effective Date or of a demand by VoPay for the same.

4.8 Set-Off

VoPay may set-off from any amount owing to Partner the amount of any liability of Partner to VoPay.

5. Confidential Information.

5.1 Obligation.

Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to such Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use the Confidential Information for any purpose except as expressly permitted hereunder.  Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other Governmental Authority, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.

5.2 Exceptions.

The restrictions on the use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or a portion thereof, which (a) is or becomes a part of the public without breach of this agreement by the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, without restriction on disclosure, (c) is independently developed by the receiving party without reference to the Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.

6. Ownership.

6.1 Branding of Services.

All Payment Services supplied by VoPay to Partner or Customers will include disclosure of the identity of VoPay and its Payment Services Agreement, as required by Applicable Law.  Customer may brand Customer Services under its own brand provided that such branding does not interfere in any mandatory disclosure of VoPay’s name, terms or other disclosure required in respect of Payment Services, all as determined by VoPay.

6.2 System and Technology.

VoPay expressly reserves all Intellectual Property Rights in the Services and all materials provided by VoPay hereunder. All rights, titles and interests in the Services and all other materials provided by VoPay hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with VoPay or its licensors. VoPay reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services without prior notice to or consent from Customer and/or Partner. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“VoPay Materials”), are protected by Intellectual Property Rights Laws of the United States, Canada, and other jurisdictions.

6.3 Customer Data.

Customer retains all rights, title and interest in and to the Customer Data.  Customer grants to VoPay a worldwide, royalty-free, non-exclusive license to use, host, copy, transmit, display, modify and create derivative works of the Customer Data for the purposes of providing the Services to Customer during the Term and for VoPay’s internal business purposes in perpetuity, including training and improving VoPay’s systems and proprietary technology, products and services. Customer acknowledges and agrees that VoPay may disclose relevant Customer Data to third-party service providers to ensure compliance with applicable laws, regulations and rules, including without limitation know your client, anti-money laundering and anti-terrorist financing rules. Customer also grants VoPay a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, display, modify and process the Customer Data to generate Anonymized Data and acknowledges and agrees that VoPay may utilize and disclose to third parties the Anonymized Data for any purpose.

7. Term And Termination.

7.1 Term.

Unless otherwise agreed to in the Order Form, the initial term of this Agreement will commence on the effective date set forth in the Order Form and continue for two (2) years (the “Initial Term”). Thereafter, this Agreement will be automatically renewed for additional and successive one (1)-year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 60 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement.

7.2 Termination for Default.

Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within 30 days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy. VoPay may terminate this Agreement on notice to Partner in the event that continued performance hereunder exposes VoPay or any of its Affiliates, processors or banks to excessive security, financial or reputational risk, as determined by VoPay in its discretion.

7.3 Effect of Termination.

Upon the termination of this Agreement for any reason, (a) Customer will cease using the API and all associated Services and VoPay will be relieved from any further obligation to provide the Services, (b) any amounts owed to VoPay under this Agreement before such termination will become immediately due and payable; (c) VoPay shall have the right to withhold transfers of funds from your Platform Account if VoPay reasonably determines that it may incur losses resulting from credit, fraud or other legal risks associated with your Platform Account or the transactions you have recently conducted through your Platform Account, until such time as VoPay reasonably determines that such losses will not be incurred; (d) VoPay will continue to hold data and maintain records as required by Applicable Law. and (e) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control.  If this Agreement is terminated without cause by VoPay, then the amounts owing between the Parties shall be those amounts that accrued as owing up to termination.  If this Agreement is terminated by VoPay for breach by Partner or terminated by Partner prior to the end of the then current Term, then Partner shall be liable for all Fees that would otherwise be payable hereunder during the remainder of the then current Term notwithstanding the termination.  If this Agreement is terminated, VoPay may, but is not obligated to, terminate each Payment Services Agreement with Customer. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3 and 8 through 14 will survive the termination or expiration of this Agreement. 

8. Financial Responsibility For Payment Activity

Customer is responsible for all payments initiated using the Services, including without limitation any fraudulent activity that occurs through the Platform Account or otherwise in connection with Customer’s use of the Services. Any payment Customer sends or receives using the Services may be reversed (each, a “Reversal”) according to VoPay’s policies and Applicable Laws. In the event of any Reversal, it is the Customer’s sole responsibility to make VoPay whole for the full amount of any losses resulting from such Reversal upon request from VoPay. Customer acknowledges and agrees that Customer’s Platform Account or Bank Account may be automatically debited by VoPay for the aggregate amount owed by Customer due to a Reversal.

9. Individual Guarantee Of Financial Obligations.

As a condition to the provision of Services to Customer, VoPay may require, prior to commencing the Services or at any time during the Term, one or more director(s), officer(s) and/or senior member(s) of management of Customer to provide an individual guarantee, in the form provided by VoPay, of Customer’s present and future obligations, liabilities, indemnities, covenants and agreements under this Agreement.

10. Compliance RESPONSIBILITIES.

10.1 Ensuring Compliance.

For purposes of ensuring that Customer is performing its compliance responsibilities as required under this Agreement and Applicable Laws, using the Services for the purposes described in this Agreement, and not introducing excessive risk into the System:

(a) VoPay reserves the right to perform any of Customer’s obligations under this Agreement on Customer’s behalf if Customer does not or is unable to do so for any reason and such failure may result in a violation of Applicable Laws by VoPay.

(b) VoPay may request, and Customer agrees to provide, information about its business, operations, funds flow, or integration with the Services. VoPay reserves the right, in its discretion, to reassess Customer’s eligibility for the Services at any time.

(c) VoPay will have the right to audit, examine and otherwise monitor Customer’s compliance with this Agreement, and Customer agrees to cooperate fully with any such audit to the extent permitted under Applicable Laws. Upon notice from VoPay, Customer will use commercially reasonable efforts to promptly provide to VoPay or its third-party auditor (either, a “VoPay Auditor”) access to and assistance with, except where prohibited by law: documents, records, reports or other data, information or materials compiled, maintained or otherwise available to the extent related to Customer’s compliance with this Agreement. If a VoPay Auditor determines that Customer is not in compliance with this Agreement, Customer will promptly take appropriate action to remedy the non-compliance and will provide VoPay with evidence of the steps taken to achieve compliance within a reasonable time frame.

(d) VoPay may terminate this Agreement and/or suspend Customer’s use of the Services immediately in the event that VoPay reasonably determines that Customer has become ineligible to use the Services.

11. Disclaimer of Warranties.

THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY VOPAY TO CUSTOMER ARE PROVIDED “AS IS”, AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND.  VOPAY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE.  VOPAY DOES NOT WARRANT THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE.  WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, VOPAY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

VOPAY IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY VOPAY, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY VOPAY.

THE SERVICES ARE OFFERED AND CONTROLLED BY VOPAY FROM ITS FACILITIES IN CANADA.  VOPAY MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.  THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO OF THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

12. Indemnity.

12.1 Indemnity by Customer.

If any action is instituted by a third party against VoPay arising out of or relating to: (a) Customer’s use of the Services or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by VoPay pursuant to this Agreement, infringes any third party intellectual property right or other right of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of VoPay and shall pay all damages attributable to such claim which are finally awarded against VoPay or paid in settlement of such claim, provided that Customer shall not be required to indemnify VoPay for such damages and costs attributable to the negligence, willful misconduct or breach of this Agreement by VoPay.

12.2 Indemnity by VoPay.

If any action is instituted by a third party against Customer arising out of or relating to: (a) VoPay’s provision of the Services or its System (including claims by any customer, supplier, competitor or business partner of VoPay); (b) VoPay’s breach of any of its obligations, representations or warranties under this Agreement; or (c) an allegation that the Services, or the use of the Services or System by Customer pursuant to this Agreement, infringes any third party intellectual property right or other rights of a third party, or otherwise causes harm to a third party, VoPay will defend Customer against such action at its own expense and shall pay all damages and costs attributable to such claim which are finally awarded against Customer or paid in settlement of such claim, provided that VoPay shall not be required to indemnify Customer for such damages and costs attributable to the negligence, willful misconduct or breach of this Agreement by Customer. Customer will promptly notify VoPay of the claim for which indemnity is being sought and will reasonably cooperate with VoPay in the defence and/or settlement thereof. VoPay will have the right to conduct the defence of any such claim, provided that VoPay may not settle any claim without Customer’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Customer from all liability without prejudice, does not require any admission by Customer, and does not place restrictions upon Customer’s business, products or services). Customer may participate in the defence or settlement of any such claim at its own expense and with its own choice of counsel or, if VoPay refuses to fulfill its obligation of defence, Customer may defend itself and seek reimbursement from VoPay.

13. Limitations.

13.1 Limitation Of Liability.

The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

13.2 Amount.

VOPAY’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT, EXCEPT IN THE CASE OF FRAUD, GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY,  IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO VOPAY UNDER THIS AGREEMENT FOR THE SPECIFIC SERVICES GIVING RISE TO A CLAIM IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE.  FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT SHALL VOPAY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

13.3 Type.

BOTH PARTIES HEREBY ACKNOWLEDGE AND AGREE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.  IN NO EVENT SHALL VOPAY BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

13.4 No Jury Trial.

EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

13.5 Limitation of Time.

Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.

13.6 API Restrictions.

Customer and/or Partner will not directly itself, and will not permit or authorize third parties, including Customers of Partner, employees, agents, or officers to: (a) rent, lease, sublet, resell, convert, license, exploit, use, modify, or otherwise permit unauthorized third parties to access or use any aspect of the API; (b) reverse engineer, reverse assemble or otherwise attempt to discover the source code for the API; (c) circumvent or disable any security or other technological features or measures of the API; (d) alter, modify, convert or attempt to, modify, convert or otherwise manipulate the API, software or code; or (e) clone or otherwise copy, replicate or duplicate in any fashion any part of the API design, workflow, features or methodology, all of which Customer and/or Partner acknowledges are proprietary intellectual property wholly owned by VoPay. Customer and/or Partner shall supervise the use of the Service and API by its Customers and immediately notify VoPay of any breach of this Agreement.

14. General Provisions

14.1 Publicity.

VoPay may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties.  Customer agrees to allow VoPay to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of VoPay and a user of the Services.

14.2 Assignment.

Customer may not assign this Agreement to a third party without VoPay’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer.  VoPay may assign this Agreement or any rights hereunder to any third party without Customer’s consent, provided that there is no  degradation in services to the Customer and VoPay continues to be responsible for the services of such third party.   Any assignment in violation of this Section 14.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.

14.3 Force Majeure.

If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labour strikes and other labour disturbances, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance.

14.4 Binding Arbitration.

(a) Any and all Disputes (as defined below) involving Customer and VoPay will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This arbitration provision (the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in this Agreement, this Arbitration Provision does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.

(b) The term “Dispute” means any claim or controversy related to the Services, including but not limited to any and all: (a) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (b) claims that arose before this Agreement or any prior agreement; (c) claims that arise after the expiration or termination of this Agreement; and (d) claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class.

(c) The party initiating the arbitration proceeding may open a case with JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to VoPay by mail to Four Bentall Centre, VoPay International Inc. 1055 Dunsmuir Street, Suite 594, Box 49263, Vancouver, BC V7X 1L2 Canada, Attention: Legal Department.

(d) Notwithstanding anything in this Arbitration Provision to the contrary, either Customer nor VoPay may bring an individual action in a small claims court in the area where Customer accesses the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.

(e) This Arbitration Provision shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when Customer notifies VoPay about Customers Dispute. Customer can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless Customer and VoPay agree otherwise, any arbitration hearing will take place in Vancouver, BC, Canada. The arbitrator will honour claims of privilege recognized by law and will take reasonable steps to protect Platform Content and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.

(f) THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.

(g) The payment of the JAMS’s fees and costs will be governed by the JAMS Rules. However, if the arbitrator finds that the Dispute was frivolous or brought for an improper purpose, the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and Customer shall reimburse VoPay for all fees and costs that were its obligation to pay under the JAMS Rules. Customer may hire an attorney to represent it in arbitration. Customer is responsible for its attorneys’ fees and additional costs and may only recover its attorneys’ fees and costs in the arbitration to the extent that it could in court if the arbitration is decided in its favor.(h) This Section 13.4 survives termination or expiration of the Terms for any reason.

14.5 Choice of Law.

This Agreement and any dispute arising out of or related to this Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and applicable federal laws, without regard to conflicts of law principles.  All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by courts of competent jurisdiction in Vancouver, British Columbia, Canada, and each party consents to the exclusive jurisdiction of those courts. Further, VoPay only may obtain injunctive or other equitable relief in any court of competent jurisdiction in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

14.6 Notices.

Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to VoPay, by email at [email protected] or by certified mail at 594-1055 Dunsmuir St, Vancouver, BC, V7X 1L2, Canada; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form.  Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address.  Notices will be deemed to have been given upon receipt, or when delivery is refused.

14.7 Entire Agreement.

This Agreement, including the Order Form and applicable Ancillary Terms, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.  Only a written amendment signed by both parties may modify it except VoPay may amend this Agreement on notice to Customer in the event that such an amendment is deemed necessary by VoPay.

14.8 Severability and Waiver.

In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.9 Relationship of the Parties.

The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any individual or entity other than the parties and their respective successors and assigns.