VoPay Financial Canada Inc. Payment Services Agreement

Last Updated: November, 2023

This Agreement together with the Order Form and Ancillary Terms (collectively, the “Agreement”) is a binding legal agreement between the business accepting this agreement (“Customer”) and VoPay Financial Canada Inc., with offices at 594-1055 Dunsmuir St, Vancouver, BC, V7X 1L2 Canada (“VoPay Financial”) and governs Customer’s use of the Payment Services (as defined below). 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE PAYMENT SERVICES SUPPLIED UNDER THIS AGREEMENT.

These Terms include the VoPay Financial Privacy Policy – https://vopay.com/en-ca/legal/services/privacy-policy/, which is incorporated into the Agreement by reference (“Privacy Policy”).

CUSTOMER ACKNOWLEDGES AND AGREE THAT THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 17.4 THAT AFFECTS CUSTOMER RIGHTS UNDER THESE TERMS WITH RESPECT TO THE PLATFORM.

1. Definitions.

“Account” means the Customer’s unique VoPay Financial funds account through which the Customer Transactions are processed, as discussed in Section 4.

“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.

“Aggregate 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.

“Ancillary Terms” means additional disclosure by VoPay Financial applicable to the Payment Services set out in the Platform or by other means and also preferences and selections made by Customer in relation to the Payment Services, whether in the Order Form, through the Platform Account or by other means acceptable to VoPay Financial.

“Applicable Law” 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.

“Bank Account” means the bank, Card account or other financial account of Customer that Customer has instructed VoPay Financial to integrate with the Payment Services.

“Card” means (i) a credit or debit card in the form issued under license from Visa, MasterCard or Interac or (ii) any other valid credit card, charge card or debit card accepted as a method of payment by VoPay Financial.

“Client” means a customer or supplier of a Customer.

“Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, 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. Without limitation, non-public information concerning the Payment Services and the Platform, and user manuals, handbooks, online materials, specifications or forms made available by VoPay Financial that describe the features, functionality or operation of the Platform or the Payment Services and the terms of this Agreement are Confidential Information of VoPay Financial.

“Customer” means any VoPay customer, Partner, Partner customers, and any other person using the Services in any way, provided that a Customer must be acceptable to both Partner and VoPay prior to being designated as such.

“Customer Data” means any and all Personal Information of Customers or information related to Customer Transactions or Customer use of the Payment Services including but not limited to Customer know-your-customer information and Customer Transaction data.

“Customer Device” means a computer system, tablet or phone used by Customer to access the Payment Services or manage Data or Customer business.

“Data” means Customer Data or VoPay Data.

“e-Transfer Payment Services” means those Payment Services described in Section 5.

“EFT Services” is the Payment Service of electronic funds transfers, as defined in in Section 7.

“Fees” means the fees payable by Customer for the Payment Services, as detailed in the Order Form

“Interac e-Transfer Service” is the Payment Service of Interac e-transfers, as defined in Section 6.

“Issuer” means a member of a Payment Network that is in the business of issuing Cards.

“MasterCard” means MasterCard International, Inc.

“Order Form” means, an order form, setting, preference or document executed by Customer or instruction sent by Customer through the Platform Account or other means that is acceptable to VoPay Financial, indicating Customer’s selection of Payment Services.

“Payment Network” means Visa, MasterCard, Interac or another payment network operating in support of the issuing and processing of Card Transactions.

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

“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, Regulator or government or any agency or political subdivision thereof.

“Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a specific individual or household, including but not limited to, the individual’s name, address, email address, telephone number, social security number, driver’s license number, passport number, financial account number, biometric information, and any other information that is defined as “personal information” under applicable data protection laws and regulations. 

“Platform Account” means an online digital platform account on the Platform supplied by VoPay International Inc. or another Affiliate of VoPay Financial.

“Platform Terms” means the terms of service of the Platform between Customer and VoPay International Inc.

“Platform” means the cloud-based data collection, storage, processing and disclosure platform supplied to Customer under Platform Terms by VoPay International Inc. or another Affiliate of VoPay Financial.

“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. 

“Privacy Policy” means VoPay Financials’ Privacy Policy located at https://vopay.com/en-ca/legal/services/privacy-policy/, as updated from time to time by VoPay Financial.

“Product” means a product or service of Customer or a third party for which Customer wishes to send or receive payment using the Payment Services.

“Recipient” means the Person intended to receive Transaction funds.

“Regulator” means any federal, territorial, state, provincial or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.

“Rules” means the rules and regulations of Payment Networks including those of Visa available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf, MasterCard (available here https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html) as well as the PCI Security Standards Council (PCI SSC) available here https://www.pcisecuritystandards.org. 

“Term”, “Initial Term” and “Renewal Term” are defined in Section 11.

“Third Party Servicer Agreement” means an agreement between Partner or Customer and a Third Party Servicer concerning the supply of Third Party Servicer Services to Partner. By exception, the Payment Services Agreement between Partner and VoPay Financial is a Third Party Servicer Agreement for the purposes of this Agreement.

“Third Party Servicer Services” means the services of a Third Party Servicer provided pursuant to the Third Party Servicer Agreement.

“Third Party Servicer” means a third party that has entered into a Third Party Servicer Agreement with a Partner or Customer pursuant to which the Third Party Servicer provides Third Party Servicer Services to the Partner or Customer. VoPay International Inc. is a Third Party Servicer. 

“Transaction” means an actual or attempted payment transaction to or from Customer or a third party initiated through the Payment Services.

“Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Payment Services on behalf of Customer.

“Visa” means Visa U.S.A., Inc. or Visa International, Inc.

“VoPay Data” means data of VoPay Financial or one of its Affiliates and includes the terms of this Agreement and information concerning the Services and VoPay Financial and its Affiliates made available through the Services.

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

2. Regulatory Status of VoPay Financial

VoPay Financial is a money services business that is duly registered as such with the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”).  VoPay Financial operates in compliance with applicable Canadian anti-money laundering laws including but not limited to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and its regulations.

3.Payment Services.

3.1 Supply of Payment 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 requests of VoPay Financial, VoPay Financial hereby grants to Customer a limited, non-transferable, non-exclusive right to access and use the Payment Services during the Term in accordance with this Agreement solely for Customer’s business purposes and not for resale.

3.2 VoPay Platform Integration.

Customer wishes to use the Platform to store, send, and receive information to, from and among VoPay Financial, VoPay International Inc. and third parties.  Customer hereby instructs VoPay Financial to provide Customer Data to the Platform.  Customer hereby instructs VoPay Financial to accept Customer instructions received through the Platform as if they were provided to VoPay Financial by Customer directly.  Customer must have a Platform Account to access the Payment Services.

3.3 Third-Party Servicer Integration.

The Services may be integrated with various Third Party Servicers other than VoPay International Inc.  As and when such third-party Servicer integrations are available, as disclosed to Customer in the Platform Account, and where Customer has opted to activate the integration, Customer hereby instructs VoPay Financial to send, receive and communicate Customer Data to, from and among the Third Party Servicer, Customer and VoPay International Inc.  VoPay Financial is not party to Third Party Servicer Agreements and shall have no liability to Customer in respect thereof.

3.4 Support.

VoPay Financial shall use commercially reasonable efforts to provide customer support to Customer with respect to the Payment Services.  VoPay Financial may provide such support using VoPay International Inc. or another Affiliate or other third party provided that in any case such third party is bound by obligations of confidentiality that are no less stringent than those set out herein.

3.5 Ancillary Terms

Each Payment Service may be subject to additional specific terms and conditions disclosed in this Agreement, Ancillary Terms, the Order Form or otherwise through the Platform Account, all of which are incorporated herein by reference.

4. Payment Service – Account

Subject to the terms of this Agreement and risk and underwriting approval of Customer by VoPay Financial, as a Payment Service, VoPay Financial shall provide an Account to Customer for the Term of this Agreement.  The Account is not a bank account and no interest shall be paid on Customer Account funds.

4.1 Account Load

As indicated on the Order Form or through the Platform Account one or more of the following methods will be available to load funds into the Account:

(a) Pre-Authorized Direct Debit

If Customer chooses to load their Account using the pre-authorized direct debit feature to directly debit Customer Bank Account, Customer will need to provide, or VoPay Financial will receive through bank log-in information provided by Customer, Customer Bank Account details, including Customer Bank Account number and routing number. When Customer chooses to upload money using the pre-authorized direct debit feature and provides Customer Bank Account details, Customer confirms that Customer Bank Account details are correct, that Customer authorizes VoPay Financial to access and transmit funds from Customer Bank Account, that Customer has sufficient funds in Customer account for the upload, that Customer Bank Account is in good standing with the account-holding financial institution, and that Customer has the authority to initiate an electronic funds transfer in the amount at issue to or from Customer Bank Account. Customer authorization shall remain in effect for each Transaction (of any kind requiring Customer funds) unless cancelled in accordance with this Customer Agreement, in which case, VoPay Financial will promptly return the funds supplied by Customer to the Bank Account from which it originated, assuming the money is not yet received by VoPay Financial, less any applicable Fees. In the event that VoPay Financial is unable to return the funds, then VoPay Financial will promptly contact Customer using the most current contact information provided to VoPay Financial through the Platform Account.

(b) Debit or Credit Card

In order to load funds into the Account by debit or credit card, Customer shall supply Customer Card details, including Customer Card number and cardholder name. When Customer chooses to load funds into the Account by debit or credit card, Customer confirms that Customer Card details are correct, that Customer is authorized to access and transmit funds from the Customer card account, that Customer card account is in good standing with the account-holding financial institution, and that Customer has the authority to initiate a debit or credit Card payment in the amount at issue to or from Customer Card account.

(c) Interac

When Customer wishes to load funds to the Account by Interac, Customer states that Customer is authorized to access and transmit funds from Customer Bank Account via Interac, and that Customer has the authority to initiate an Interac e-transfer or approve an Interac request payment in the amount at issue to or from Customer Bank Account.

(d) Wire or Electronic Funds Transfer From Customer Bank Account

If Customer wishes to load funds to the Account using an electronic funds transfer from Customer Bank Account, or the wire transfer, then Customer must complete such load transaction using the financial institution holding their funds and the funds must be sent to an account designated for incoming Customer funds by VoPay Financial in the Platform Account.

4.2 Withdrawal or Sending of Funds

If there are funds in the Customer Account, Customer may be subject to limitations discussed in this Agreement and payment of applicable Fees, withdraw those funds by:

(a) sending Account funds to Customer Bank Account through electronic funds transfer or other method indicated as available in the Platform Account;

(b) sending Account funds to another VoPay Financial customer’s account; or

(c) sending Account funds to the bank account of a third party designated by Customer through electronic funds transfer or other method indicated as available in the Platform Account.

4.3 Safety of Funds

Customer Account funds are maintained by VoPay Financial at a Canadian bank in an account designated for the benefit of VoPay Financial customers.  VoPay Financial will not co-mingle Customer Account funds with its own operating funds and will not grant creditors of VoPay Financial any lien, security interest, hypothec or other interest in Customer Account funds.  To the extent permissible under Applicable Law, VoPay Financial shall pass through to Customer all available Canadian Deposit Insurance Corporation (“CDIC”) insurance to Customer for Account funds. 

4.4 Account Statements

VoPay Financial shall make available to the Customer reporting with respect to Transactions in the Account via the Platform Account of the Customer.

5. Payment Service – Interac e-Transfer Payment Services

One of the Payment Services is VoPay Financial’s supply of Transactions facilitated by Interac’s e-transfer technology and services, which allows users to send and receive Canadian dollar electronic funds transfers over the Internet (“e-Transfer Payment Services”). Fund transfers facilitated by the e-Transfer Payment Services are performed by VoPay Financial’s financial institution partner(s) based on instructions provided by Customer to VoPay Financial through the Platform Account.

5.1 Definitions E-Transfer Payment Services.

The following defined terms apply to the e-Transfer Payment Services:

“Autodeposit Recipient” means a Recipient that has registered for auto-deposit of Interact e-Transfers, and to whom Interac e-Transfers do not require a Security Question.

“Interac e-Transfer” means a money transfer sent or received using the e-Transfer Payment Services.

“Interac e-Transfer Rules” means the Interac rules applicable to Interac e-Transfers available here and incorporated herein by reference: https://www.interac.ca/en/interac-e-transfer-terms-of-use .

“Participating Financial Institution” means a financial institution participating in the system for sending and receiving Interac e-Transfers.

“Recipient” means a person who claims an Interac e-Transfer, including if applicable, an Autodeposit Recipient.

“Request Money” means a request for an Interac e-Transfer in a specified amount sent by a person from a Participating Financial Institution.

“Requestor” means a person who sends a Request Money from a Participating Financial Institution.

“Security Question” means a unique question chosen by the Sender, whereby the Recipient must provide the correct answer (as chosen by the Sender) to gain access to Interac e-Transfer funds.

“Sender” means a person who instructs a Participating Financial Institution to send an Interac e-Transfer.

5.2 Sending An Interac e-Transfer.

Customer shall comply with the Interac e-Transfer Rules.  All Interac e-Transfer transactions initiated under this Agreement are Transactions within the meaning of this Agreement.  Interac e-Transfer Transactions shall be initiated from Customer Account balance; if there are insufficient funds for a Transaction in the Account, VoPay Financial may decline to initiate the Transaction.

After Customer initiates an Interac e-Transfer, VoPay Financial will withdraw the Interac e-Transfer amount from the specified Account and send an email to the Recipient’s email address, as provided by Customer. The email will identify the Customer as the Sender, the Interac e-Transfer amount, the name of the Recipient, and that the Customer is using the e-Transfer Payment Services. VoPay Financial will hold the value of the Interac e-Transfer until VoPay Financial receives notice that (a) the Recipient has correctly provided the answer to the Security Question and claimed the Interac e-Transfer, (b) the Recipient is an Autodeposit Recipient, or (c) the Customer cancels and reclaims the Interac e-Transfer. In order to initiate an Interac e-Transfer, the Customer must have the necessary funds in the Account from which the Interac e-Transfer is sent and VoPay Financial shall stop facilitating an Interac e-Transfer if funds are not available in the relevant Account, but will resume facilitating the Interac e-Transfer once the required funds are deposited into the relevant Account.

5.3 Claiming Or Declining An Interac E-Transfer.

(a) A Recipient of an Interac e-Transfer may claim or decline an Interac e-Transfer using the Payment Services, the online or mobile banking services of a Participating Financial Institution, or the Interac payment service. Participating Financial Institutions or Interac may charge additional fees if used to claim or decline Interac e-Transfers.

(b) If a Recipient is not an Autodeposit Recipient, a Recipient must provide the correct answer to the Security Question to claim or decline an Interac e-Transfer.

(c) A Recipient who successfully claims an Interac e-Transfer using the online banking or mobile banking services of a Participating Financial Institution using the Interac payment service should generally receive funds immediately (or, in any event, within 30 minutes).

5.4 Request Money.

When Customer sends a Request Money, VoPay Financial will send a notice to the email address provided by Customer, identifying Customer as the Requestor and disclosing: (a) Customer’s email address, (b) the Request Money amount, (c) that Customer is using the services of VoPay Financial, and (d) if applicable, the reason for the Request Money or reference number. Customer can cancel a Request Money before the Request Money is fulfilled using the e-Transfer Service.

5.5 No Interest.

VoPay Financial will not pay interest on any funds sent pursuant to the e-Transfer Payment Services.

5.6 Time Limit To Claim.

A Recipient has 30 days from the time an Interac e-Transfer is sent through the e-Transfer Payment Services to claim the Interac e-Transfer amount, after which the Interac e-Transfer will automatically expire.

5.7 Cancelling An Interac E-Transfer.

A Sender may cancel an Interac e-Transfer sent using the e-Transfer Service, unless the Recipient has already successfully claimed the Interac e-Transfer.

5.8 Declined, Cancelled Or Expired Interac E-Transfer.

If Customer sends an Interac e-Transfer using the e-Transfer Payment Services and the Interac e-Transfer is declined, cancelled or automatically expires, VoPay Financial may attempt to redeposit the value of such Interac e-Transfer into the Account from which the funds originated. VoPay Financial will charge an administration fee for declined or cancelled Interac e-Transfers.

5.9 VoPay Financial May Cancel An Interac E-Transfer.

VoPay Financial may cancel an Interac e-Transfer or Request Money (without liability to the Sender, Recipient, or Requestor) at any time before the Recipient has successfully claimed the Interac e-Transfer or before the Interac e-Transfer amount has been deposited in the designated VoPay Financial Account of the Requestor if VoPay Financial has reason to believe that the Sender, Recipient, or Requestor is engaging in fraudulent, unlawful or improper activity, or that an error or mistake has occurred.

5.10 Security Question Reliance And Customer Obligations.

VoPay Financial, Participating Financial Institutions and Interac are entitled to pay an Interac e-Transfer to anyone who, using the Payment Services, the online or mobile banking service of another financial institution, or the Interac website, claims an Interac e-Transfer and correctly provides the answer to the applicable Security Question, whether or not the Sender intended that person to receive the Interac e-Transfer. Customer will comply with its security obligations under these e-Transfer Terms and will not use email or any optional message that may accompany an Interac e-Transfer to send a Recipient of an Interac e-Transfer, the Security Question or the answer.

5.11 Security Question (Not Applicable To Requestors).

(a) To send an Interac e-Transfer, a Sender must provide a Security Question and answer unless the Recipient is an Autodeposit Recipient. To prevent unauthorized access to an Interac e-Transfer, the answer to the Security Question must be something known only to the Sender and the Recipient. VoPay Financial will not be responsible or liable for any losses or damages incurred by a Sender or Recipient if the Sender creates a Security Question, the answer to which can be easily obtained or guessed by a person other than the Recipient.

(b) When sending Interac e-Transfers via the e-Transfer Payment Services, Customer agrees that: (a) it will keep the answer to each Security Question secret and will disclose each answer only to the Recipient in each case, (b) it will not use any optional message that may accompany an Interac e-Transfer to send a Recipient the answer to a Security Question, (c) it will confirm that an Autodeposit Recipient is the intended Recipient before sending an Interac e-Transfer to that person, and (d) it will confirm that a Requestor is the intended Recipient before fulfilling a Request Money.

(c) When receiving Interac e-Transfers via the e-Transfer Payment Services, Customer agrees that it will keep all Security Question answers secret and will disclose then only as required to claim Interac e-Transfers.

(d) Each new Security Question and answer Customer provides as a Sender of an Interac e-Transfer to a Recipient replaces the Security Questions and answers for all pending Interac e-Transfers from Customer to that Recipient.

5.12 Interac Payment Service.

If a Recipient attempts to claim an Interac e-Transfer from a Sender using the Interac payment service but provides information that is insufficient or incorrect, Interac may: (a) request additional or corrected information from the Recipient, (b) deposit the money directly into an account provided by the Recipient to Interac, or (c) send a cheque for the Interac e-Transfer amount to the Recipient at the street address provided to Interac by the Recipient. If a Recipient fails to cash a cheque sent by Interac within the time limit set by Interac, Interac may return the Interac e-Transfer to VoPay Financial, and VoPay Financial will return the Interac e-Transfer, less any fees charged by Interac, to the Sender.

5.13 Provide the Email Address.

If Customer sends an Interac e-Transfer using the e-Transfer Payment Services, Customer is responsible for providing a correct and operational Recipient email address, and for notifying VoPay Financial promptly of any change to the email address of the Recipient.

5.14 Recipient Email Address Issues.

If, after one or more attempts, it is determined that a Recipient’s email address does not accept messages, or an Interac e-Transfer amount cannot be deposited, notice will be sent to the Sender through the Payment Services. When a Sender receives this notice, the Sender may reclaim the Interac e-Transfer amount, or if the Interac e-Transfer has not expired, the Sender may resend it by selecting Interac e-Transfer from the “Status” page of the Payment Services, and following the instructions for readdressing. Readdressing the Interac e-Transfer restarts the 30 days allowed to the Recipient to claim the Interac e-Transfer before it expires.

5.15 Status Of Interac E-Transfer.

Customer is responsible for reviewing the status of any Interac e-Transfers that Customer sends using the e-Transfer Payment Services, by checking its “payment history” using the VoPay Financial API or Payment Services.

6. Payment Service – Electronic Funds Transfer

VoPay Financial’s electronic funds transfer services (“EFT Payment Services”) is a Payment Service that can be accessed through the Platform Account and includes a Direct Debit / Direct Credit electronic payment system. Pre-authorized debits in Canadian Dollars or US Dollars may be charged against any individual or company bank account (a “Payor Account”) at financial institutions in Canada. Credit transfers in Canadian Dollars or US Dollars may be credited to any individual or company bank account (a “Payee Account”) at financial institutions in Canada.

All EFT Payment Services transactions initiated hereunder are Transactions within the meaning of this Agreement.  EFT Payment Services Transactions shall be initiated from Customer Account balance; if there are insufficient funds for a Transaction in the Account, VoPay Financial may decline to initiate the Transaction.

6.1.1. Definitions.

The following definitions apply to the EFT Payment Services:

“Business Day’’ means any day other than Saturday, Sunday, or a statutory holiday in British Columbia.

“Payment Network Rules” means rules, regulations, standards, policies, manuals and procedures published and implemented from time to time by any one or more Payment Network(s), including, but not limited to, the Payment Card Industry Data Security Standard.

“Charged Institution” means an underwriting Canadian financial institution.

“Credit Instructions” means the method by which funds are sent to a Payee’s account, and must provide all the necessary information to enable the Charged Institution to execute the instructions.

“Cut Off Time” means the recommended latest time on a Business Day on which Customer must provide Payment Instructions in order for VoPay Financial to process Payment Instructions on the same day.

“Direct Credit” means a payment transferred on a pre-arranged basis directly into a Payee’s account, initiated by Customer’s instruction to debit a VoPay Financial Account and forward payment to a Payee’s account at a deposit-taking institution.

“Direct Debit” means a pre-authorized instruction from Customer to VoPay Financial, authorizing VoPay Financial to collect varying amounts from a Payor account when the Payor has been given notice of the amounts and dates of the collection(s) in advance and has agreed to them.

“Debit Instructions” means the method by which Customer obtains a Payor’s authority to debit its account, and must include all the necessary information to enable collection by Direct Debit and confirm that the Payor clearly understands that it has given Customer the authority to debit its account.

“Due Date” means the Business Day that the Customer requests that a debit or credit be charged against an account, or if a day that is not a Business Day is requested, then the next Business Day following the requested day.

“Payee” means a person whose account at a financial institution is to be, or has been, credited pursuant to a Debit Instruction.

“Payor” means a person whose account at a financial institution is to be, or has been, debited pursuant to Debit Instructions.

“VoPay Financial Balance” means the funds available in Customer’s Account, representing funds held for Customer’s benefit by VoPay Financial’s financial institution partners in a holding account.

6.2 PAD Consents

Customer represents that each Payor or Payee from or to which an EFT Payment Service Transaction is initiated has expressly consented to the Transaction and has executed such pre-authorized debit consents as are necessary under Applicable Law including but not limited to Payments Canada Rule H-1, available here and incorporated herein by reference: https://www.payments.ca/sites/default/files/h1eng.pdf 

6.3 Instruction Cut-Off Time.

To be processed on time, Debit Instructions and Credit Instructions (collectively, “Payment Instructions”) must be received by the Cut Off Time. VoPay Financial will forward Payment Instructions received by the Cut Off Time and which are not rejected for any reason (“Valid Payment Instructions”) to the Payee/Payor’s financial institution.

6.4 Processing.

VoPay Financial will process Payment Instructions on the same Business Day if received before the Cut Off Time. Payment Instructions received after the Cut Off Time will be processed on the following Business Day.

6.5 Due Dates.

Due Dates for all Payment Instructions can be specified by the Customer when inputting Payment Instructions in the VoPay Financial Platform. Payment Instructions will be processed on the Business Day prior to their specified Due Date. It is Customer’s responsibility to deliver Payment Instructions to VoPay Financial prior to any Due Date.

6.6 Completion Of Payment Instructions.

If the Customer provides Valid Payment Instructions, VoPay Financial will forward the Payment Instructions to the Charged Institution in sufficient time for Payment Instructions to be processed on their Due Date. VoPay Financial will credit or debit Customer’s Account(s) on the date Payment Instructions are forwarded to the Charged Institution.

6.7 Availability Of Funds – Debit Transactions.

Unless an alternate timeline is agreed upon in writing between Customer and VoPay Finacial, VoPay Financial will make the funds from honoured transactions available in the designated beneficiary account available three Business Days after Debit Instructions are processed. This period allows sufficient time for returned items to clear payment systems. Any dishonoured debits will be deducted from the total amount processed, and the net amount will be credited to the designated beneficiary account. If an item is returned after this period, Customer will be notified and an adjustment will be made to the balance in the designated account.

6.8 Availability Of Funds – Credit Transactions.

On the same day that Credit Instructions are processed, VoPay Financial will debit the relevant funds from the designated Account. If an item is returned after this period, Customer will be notified and an adjustment will be made to the designated account. Credit Instructions will only be processed if Customer has sufficient funds in the account from which payment is attempted.

6.9 Returned Or Contested Items.

Customer agrees to pay for any dishonoured, unauthorized, forged, materially altered, returned or contested items. VoPay Financial will provide Customer with notification of these items and adjust the credit to the relevant account for corresponding amounts less any fees associated with returned items.

6.10 No Interest.

VoPay Financial will not pay interest on any funds sent pursuant to the EFT Payment Services, including on amounts sent by Customer, for the period any amounts were not in Customer’s Account(s).

6.11 Payment Network Rules.

In connection with the exercise of Customer’s rights and obligations under this Agreement (including without limitation any related to individual privacy), Customer will comply, at its own expense, with all Payment Network Rules applicable to Customer and its end users, its business and/or Transactions and any orders of any Regulator or regulatory body having jurisdiction over the subject matter hereof, including, but not limited to, the privacy guidelines of the Payment Network Rules. Customer shall not use the Payment Services in any manner, or in furtherance of any activity, that may cause VoPay Financial to be subject to investigation, prosecution or legal action.

7. Limitations. 

(a) Prohibited Customers

The following Persons are prohibited from using the Payment Services: (i) listed on the anti-terrorism financing list, maintained by the Office of the Superintendent of Financial Institutions (available at https://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/lstd-ntts/index-en.aspx), pursuant to subsection 83.05(1) of the Criminal Code (the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and United Nations Al-Qaida and Taliban Regulations) or other similar anti-terrorism financing legislation or regulation (each, a “Canadian Listed Person”); (ii) located in or operating under a license issued by a jurisdiction identified by the Canadian Government as a sponsor of international terrorism; (iii) not in compliance or noncooperative with anti-money laundering legislation contained in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its associated regulations, guidelines by the Financial Transactions Reports Analysis Centre of Canada or other similar applicable anti-money laundering, anti-terrorism financing legislation or regulation, or international anti-money laundering principles or procedures by an intergovernmental group or organization of which the Canada is a member; (iii) Specially Designated Persons, or Persons otherwise sanctioned by the U.S. Department of the Treasury Office of Foreign Asset Control (“OFAC”).   The Payment Services may not be used for individual consumer use.  Customers must be a business, charitable organization or not-for-profit organization to use the Payment Services.  VoPay Financial reserves the right to decline to provide Payment Services or terminate Payment Services to one or another type of business; VoPay Financial shall notify Customer of prohibited business types through the Platform Account.  In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Payment Services.

(b) Limitations on Use

Customer shall not use the Payment Services for any illegal, fraudulent or other prohibited activity. If VoPay Financial suspects that Customer may be engaging in or have engaged in a fraudulent, illegal or prohibited activity, including any violation of this Agreement, your access to the Payment Services may be suspended or terminated at the sole discretion of VoPay Financial. Additionally, VoPay Financial may report the transaction to the relevant law enforcement agency.  Without limitation, Customer shall not make payments as consideration for or in connection with:

• any illegal act;
• drugs, alcohol, or drug paraphernalia, or items that may represent these uses;
• forex or binary or any other variation of trading;
• payday loans;
• operation of a money services business or a cryptocurrency business
• debt elimination, consolidation, or reduction services;
• cigarettes, tobacco or e-cigarettes;
• items that promote hate, violence, racial intolerance, or exploitation of a crime;
• goods or services that infringe on the intellectual property rights of a third party;
• fireworks;
• illegal wildlife trade;
• weapons (including without limitation, knives, guns, firearms or ammunition);
• replica and/or unlicensed branded goods; or
• any other category or payer that VoPay Financial decides to prohibit, in its sole discretion.

VoPay Financial reserves the right to decline an attempt by a Customer to create multiple Accounts.

8. Customer Data.

8.1 Customer Data Consent

Customer hereby authorizes VoPay Financial to, directly or through third parties, make any inquiries and conduct any investigation to verify Customer identity.

The Services requires certain information concerning Customer, including but not limited to Customer name, address, phone number, email address, Bank Account information, Platform Account information and other third-party Servicer account information.  Customer agrees that all information it provides to VoPay Financial, whether through the Platform or by other means, shall be complete and accurate and Customer shall promptly correct any errors in the information provided to VoPay Financial.

Subject to the VoPay Financial Privacy Policy, Customer and each of User hereby grant VoPay Financial the right to collect, store, use and disclose Customer Data for the purpose of providing the Services and its integration with Third Party Servicer Services selected by Customer.  Where Customer Data includes data concerning third parties, such as Users for example, Customer states that it has obtained the necessary consents for VoPay Financial to collect, process, and store such data hereunder from the relevant data subjects.  Except as required by Applicable Law or Regulators, if VoPay Financial is subject to a subpoena request for Customer Data, VoPay Financial shall provide Customer with an opportunity to contest the request, failing which VoPay Financial shall cooperate with the request at the expense of Customer.

Customer hereby authorizes VoPay Financial and each Third Party Servicer to each obtain from the others and disclose to the others Customer Data in so far as is necessary to supply their respective services either hereunder or under their respective Third Party Servicer Agreements.

Where required by Law, VoPay Financial will disclose Customer Data to law enforcement agencies.  VoPay Financial reserves the right to keep Customer Data for the term of this Agreement and for five (5) years thereafter.

8.2 Accuracy

Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data whether provided to VoPay Financial through the Platform or by other means. VoPay Financial will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

8.3 Security

VoPay Financial will take reasonable steps to help protect Customer Data. However, Customer understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. VoPay Financial reserves the right to cooperate with local, state, provincial and federal authorities in investigations of improper or unlawful activities and this may require the disclosure of Customer’s personal information. VoPay Financial may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.

Customer shall secure Customer Data in its possession or under its control.  Customer assumes exclusive responsibility for ensuring the security of Customer Device and the Data on it.  VoPay Financial is not liable for the operation or failure of Customer Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers.  Customer shall not operate Customer Device in a manner that does not meet the applicable security requirements of VoPay Financial, indicated in the Account or on the Site, or those of Third Party Servicers.

VoPay Financial is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data or other data provided, transmitted, processed, or stored by Customer in or through the Services. It is Customer’s responsibility to back up onto a Customer Device all Customer Data, including all data and records that Customer submits to VoPay Financial.

8.4 Sharing

VoPay Financial shall disclose Customer Data to those Users identified by Customer for such purposes and also to such Third Party Servicers as Customer has selected.  VoPay Financial has no liability for any collection, processing, storage, use or disclosure of Customer Data by any Third Party Servicer or any other third party. VoPay Financial reserves the right to decline to share Customer Data with any third party where VoPay Financial believes that such sharing may expose Customer or VoPay Financial to excessive security, financial or reputational risk, provided however that VoPay Financial shall never be liable for any act or omission of any third party with respect to Customer Data or otherwise. VoPay Financial makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Customer Data.

8.5 Feedback

In the event that Customer provides VoPay Financial with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (“Feedback”), Customer agrees that VoPay Financial may use the Feedback to modify the Services and that Customer will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Customer hereby grants VoPay Financial a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Customer provides the Feedback on the Services or through any other method of communication with VoPay Financial.

8.6 Limitations

Customer shall not take possession of or enter into the Account or Platform Account 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); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or violates any privacy rights of any third party; (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any Laws or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

8.7 No Financial Advice Provided

The Payment Services shall enable Transactions.  Customer acknowledges, however, that the Payment Services do not include the supply of any accounting, financial, investment, legal or other professional advice. VoPay Financial is not a financial, accounting or other professional services firm. VoPay Financial does not hold any licenses for the supply of any accounting, financial, investment, legal or other professional advice and none of the Payment Services shall be construed as including any such services.  Data presented in the Services, such as financial information, for example, shall not be construed as reflective of the financial status of Customer. Customer shall be exclusively responsible for retaining any accounting, financial, investment, legal and other professional advice.

8.8 Customer Call Monitoring

VoPay Financial may monitor and record support-related and other outbound calls to Customer, as well as inbound calls to VoPay Financial by Customer or Customer’s representatives, for compliance, support, training and other purposes. Customer agrees that VoPay Financial may record any call between Customer and VoPay Financial relating to the Services, and agrees to (i) notify all relevant Customer employees that calls with VoPay Financial may be monitored and (ii) indemnify and hold harmless VoPay Financial from any claim arising as a result of VoPay Financial’s monitoring or recording of calls between VoPay Financial and Customer’s representatives.

8.9 Internet Security Disclaimer.

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

8.10 Transaction Limits.

Customer acknowledges and agrees that VoPay Financial completes an assessment of Customer’s risk profile prior to commencing the Payment Services. Depending on the Customer’s risk profile as assessed by VoPay Financial, VoPay Financial may choose to limit the amount of money that can be sent and received from the Account on a per Transaction or per day basis or other risk-based Account limitations (“Account Limits”). Initial Account Limits will be set out in the Order Form. VoPay Financial reserves the right to adjust Account Limits at its sole discretion at any time, for any reason or for no reason. In the event VoPay Financial chooses to impose more restrictive Account Limits.

8.11 Limitation, Suspension or Termination of Access.

In addition to VoPay Financial’s other rights and remedies under this Agreement, VoPay Financial may suspend, terminate or limit (in VoPay Financial’s reasonable discretion) Customer’s access to or use of the Payment Services, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the Payment Services, the Platform or any of Customer’s systems; (b) comply with any Applicable Law, court order or Regulator request or order; or (c) otherwise protect VoPay Financial and its Affiliates from excessive security, financial or reputational harm. VoPay Financial will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable by email or through the Platform Account. VoPay Financial 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 Payment Services.

9. Compliance.

9.1 Customer Responsibilities and Restrictions.

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

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

(b) breach this Agreement (including any applicable Ancillary Terms), or any applicable terms or policies of VoPay Financial;

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

(d) use the Payment 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 Payment Services to upload, collect, transmit, store, use or process, or ask VoPay Financial 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 Payment Services in a manner or for any purpose that is misleading, deceptive, 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 Payment 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 Payment Services in a manner or for any purpose that is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by VoPay Financial;

(k) use the Payment Services to impersonate a VoPay Financial 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 Payment 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 Payment Services;

(n)use the Payment Services on behalf of a third party;

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

(p) interfere with, or attempt to interfere with, the Payment Services, the Platform or any other networks or services connected to the Payment 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.

9.2 Ensuring Compliance.

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

(a) On request by VoPay Financial Customer shall provide, information about its owners, directors, officers, business, operations, suppliers, customers, financial information, tax filings, source of funds and other information as VoPay Financial may request. VoPay Financial reserves the right, in its discretion, to reassess Customer’s eligibility for the Payment Services at any time.

(b) VoPay Financial 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. Upon notice from VoPay Financial, Customer will provide to VoPay Financial or its third-party auditor (either, a “VoPay Financial Auditor”) access to and assistance with, except where prohibited by Applicable 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 Financial 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 Financial with evidence of the steps taken to achieve compliance within the time frame set by VoPay Financial.

(c) VoPay Financial may terminate this Agreement and/or suspend Customer’s use of the Payment Services immediately in the event that VoPay Financial determines in its sole and absolute discretion that Customer has become ineligible to use the Payment Services.

10. Fees.

10.1. Fees.

As consideration for the subscription to the Payment Services, Customer will pay VoPay Financial or its designee the non-refundable fees set forth in and in accordance with the Order Form (“Fees”) without offset or deduction. VoPay Financial or its designee may, at VoPay Financial’s reasonable discretion, modify the Service Fees and/or to institute new charges and 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 Fees is greater than the increase in the annual consumer price index applicable in the country the underlying activities occured, Customer shall have the right to immediately terminate this Agreement upon the receipt of such notice at its sole discretion.

10.2. Payment.

Fees are payable concurrently with the applicable Transaction or as otherwise described in the applicable Order Form.  Customer hereby instructs VoPay Financial or its designee to auto-debited by PAD from the Bank Account of Customer or set off from Transactions all Fees and other amounts owing hereunder unless otherwise agreed to in writing between the Parties. Customer hereby authorizes VoPay Financial or its designee to collect amounts owed hereunder by debiting funds from the Customer Bank Account as and when they are due. All payments are non-refundable.  If Customer fails to make any payment when due, late charges will accrue interest at the rate of 12% per annum or, if lower, the highest rate permitted by Applicable Law, and VoPay Financial may suspend Payment Services until all payments are made in full.  Customer will reimburse VoPay Financial or its designee for all costs and expenses incurred (including attorneys’ fees) in collecting any late payments or interest. 

10.3. Tax.

Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to VoPay Financial or its designee hereunder, other than any taxes imposed on VoPay Financial or designee’s income.  Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to VoPay Financial or designee hereunder, Customer will pay an additional amount, so that VoPay Financial or designee receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

10.4. Suspension.

Without limitation, VoPay Financial reserves the right (in addition to any other rights or remedies VoPay Financial may have) to discontinue the Payment Services and suspend all Users and Customer’s access to the Payment 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 through the Platform or by such other means as VoPay Financial may require.

10.5. Reserve Account.

Where indicated in the Order Form or on request by VoPay Financial or designee, Partner shall supply a reserve amount to be held by VoPay Financial for the Term and for at least 180 days thereafter or until such time as VoPay Financial determines that it is no longer exposed to risk associated with Payment Transactions of Partner or its Customers (the “Reserve Account”).  The Reserve Account shall not bear interest and shall be funded within two (2) days of the Effective Date or of demand by VoPay Financial or designee for the same.

11. Confidential Information.

11.1. Obligation.

The receiving party will not use or reproduce the disclosing party’s Confidential Information other than as necessary for the performance of its obligations or exercise of its rights under this Agreement and will disclose the disclosing party’s Confidential Information only to those of its employees, contractors, and agents who have a need to know such Confidential Information for the receiving party to perform its obligations or exercise its rights under this Agreement. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care.

The parties each shall independently ensure that it and its employees, subsidiaries, affiliates, agents and subcontractors shall observe the provisions of applicable privacy laws and comply with any reasonable request made by the other arising from the requirements of such laws or any applicable statute, law or regulation relating to the protection of personal data in any jurisdiction.

11.2. Exceptions.

The receiving party’s obligations with respect to any of the disclosing party’s Confidential Information will terminate to the extent such information: (i) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (ii) is disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is at the time of receipt, or through no fault of the receiving party has become, generally available to the public; or (iv) is independently developed by the receiving party without access to or use of, the disclosing party’s Confidential Information. In addition, the receiving party is allowed to disclose the disclosing party’s Confidential Information to the extent that such disclosure is approved in writing by the disclosing party, necessary for the receiving party to enforce its rights under this Agreement, or required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly (unless prohibited by law) and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

If either party becomes aware of any disclosure or use of the other party’s Confidential Information in violation of this section, it shall promptly notify the other party in writing and take all reasonable steps necessary to recover the disclosed information and to prevent its subsequent unauthorized use or dissemination.

12. Ownership.

12.1. Platform and Technology.

Customer acknowledges that VoPay Financial, its Affiliates and licensors retain all rights, titles and interests in and to the VoPay Financial Property and that the VoPay Financial Property is protected by intellectual property rights owned by or licensed to VoPay Financial. No license or other rights in the VoPay Financial Property are granted to the Customer, and all such rights are hereby expressly reserved by VoPay Financial, its Affiliates and licensors.

12.2. Customer Data.

VoPay Financial acknowledges that Customer retains all rights, titles and interests in and to the Customer Data. Customer grants to VoPay Financial 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 Payment Services to Customer during the Term and for VoPay Financial’s internal business purposes in perpetuity, including training and improving VoPay Financial’s systems and proprietary technology, products and services. Customer also grants VoPay Financial a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, display, modify and process the Customer Data to generate Aggregate Data and acknowledges and agrees that VoPay Financial may utilize and disclose to third parties the Aggregate Data for any purpose.

13. Term and Termination.

13.1. 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.

13.2. 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.  

13.3. Termination Without Default.

VoPay Financial may terminate this Agreement immediately if the Platform Terms are terminated or if VoPay Financial determines that continued performance hereunder exposes VoPay Financial to excessive security, financial or reputational risk on notice by email or through the Platform Account to Customer.  VoPay Financial may also terminate this Agreement for no reason on notice by email or through the Platform Account to Customer.

13.4. Effect of Termination.

Upon the termination of this Agreement for any reason, (a) any amounts owed to VoPay Financial under this Agreement before such termination will become immediately due and payable; (b) VoPay Financial may retain copies of all Customer Data for up to five (5) years following termination; and (c) VoPay Financial may, at its discretion, complete then pending Transactions or decline to do so provided that VoPay Financial shall return to Customer all Customer funds less outstanding Fees or other amounts owing to VoPay Financial or its Affiliates.  Three months following termination of this Agreement, VoPay Financial shall return the Reserve      Deposit less liabilities of Customer to VoPay Financial, to Customer as provided for above.

13.5. Financial Responsibility For Payment Activity

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

13.6. Personal Guarantee Of Financial Obligations.

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

14. Representations and Warranties; Disclaimers.

14.1. Representations and Warranties.

Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.

14.2. Disclaimers.

THE PAYMENT SERVICES      AND ANY OTHER PRODUCTS AND PAYMENT SERVICES      PROVIDED BY VOPAY FINANCIAL TO THE CUSTOMER ARE PROVIDED “AS IS”, AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. VOPAY FINANCIAL 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 FINANCIAL DOES NOT WARRANT THAT THE PAYMENT SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, VOPAY FINANCIAL EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PAYMENT SERVICES (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

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

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

15. Indemnity.

Customer shall defend, indemnify, and hold harmless VoPay Financial, its employees, officers, directors Affiliates, suppliers, licensors, Third Party Servicers and other customers against any and all liability including damages, recoveries, deficiencies, interest, penalties, losses and reasonable attorney’s fees arising out of or relating to: (i) any breach of the terms hereof; (ii) any breach of a Third Party Servicer Agreement; (iii) any violation of any Laws; (iv) any use of Customer Data by Customer or a Third Party Servicer or other third party; (v) Customer use of the Payment Services, including in combination with any third party service; (vi) any Transaction; (vii) any act or omission of any Third Party Servicer or Client; (viii) costs incurred by VoPay Financial enforcing the terms hereof or responding to any subpoena relating to Customer, Customer Data or a Third Party Servicer; (ix) any claim by a governmental taxing authority; or (x) any dispute between Customer and any third party or User.

16. Limitation Of Liability.

IN NO EVENT WILL VOPAY FINANCIAL BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE PAYMENT SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL VOPAY FINANCIAL’S SUPPLIERS OR THIRD-PARTY      SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

IN NO EVENT SHALL VOPAY FINANCIAL BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) 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 FINANCIAL BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

TO THE EXTENT THAT VOPAY FINANCIAL MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF VOPAY FINANCIAL’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

VoPay Financial shall not be liable for any claims, losses or liabilities related to Product, Client or Third Party Servicer.

16.1. VoPay Financial Liability for Customer Transaction Funds.

Notwithstanding the foregoing limitations on VoPay Financial liability, if, through no fault or error of Customer or any Third Party Servicer, VoPay Financial loses Customer Account or Transaction funds or delivers them to a Recipient other than that specified in Customer instructions provided through the Platform, then VoPay Financial shall reimburse Customer for the amount of such lost or misplaced funds to the extent that neither VoPay Financial nor Customer are able to recover the same.

16.2. 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.

17. General Provisions

17.1. Publicity.

VoPay Financial 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 Financial to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of VoPay Financial and user of the Payment Services.

17.2. Assignment

Customer may not assign this Agreement to a third party without VoPay Financial’s prior written consent which VoPay Financial may withhold at its sole and absolute discretion.  A change of ownership of ten percent (10%) or more of the voting equity of Customer (or its ultimate beneficial owner) shall be a deemed assignment hereof for which prior consent of VoPay Financial is required. VoPay Financial may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this provision shall be void ab initio. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assignees.

17.3. 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, labor strikes and other labor 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

17.3.3. Binding Arbitration.

(a) Any and all Disputes (as defined below) involving Customer and VoPay Financial 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 Payment 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 Financial by mail to Four Bentall Centre, VoPay Financial Inc. 1055 Dunsmuir Street, Suite 584, Box 49263, Vancouver, BC V7X 1L2 Canada, Attention: Legal Department.

(d) Notwithstanding anything in this Arbitration Provision to the contrary, either Customer nor VoPay Financial may bring an individual action in a small claims court in the area where Customer accesses the Payment 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 Financial about customer 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 Financial 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 CAN NOT 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 Financial 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.

17.4. 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 Financial 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.

17.5. 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 Financial, by email at [email protected] or by registered mail VoPay Financial Inc. 1055 Dunsmuir Street, Suite 594, Box 49263, Vancouver, BC V7X 1L2 Canada, Attention: Legal Department; 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.

17.6. 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 Financial may amend this Agreement on notice to Customer in the event that such an amendment is deemed necessary by VoPay Financial.

17.7. 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.

17.8. 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.