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Last Updated: March 15, 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.
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.
means the Customer’s unique VoPay account through which Customer may access the Services.
1.2 “Ancillary Terms”
is defined in Section 2.2.
1.3 “Anonymized Data”
means Customer Data which has been stripped of information potentially identifying Customer or which contains any Personal Information, and which have 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 any applicable statute, law, regulation, ordinance, rule, determination, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.
means any valid credit card or debit card bearing the name and logo of Visa®, MasterCard®, American Express® or Discover® credit card associations or the issuer of any other credit card or debit card of any association or network.
1.6 “Card Association”
means Visa®, MasterCard®, American Express® or Discover® or the issuer of any other Card.
means the individual whose name is embossed on a valid Card and any authorized user of such Card and that uses a Card to purchase goods or services.
1.8 “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. 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.
1.9 “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.
1.10 “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.
1.11 “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.
1.12 “Personal Information”
means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
1.13 “Privacy Laws”
means all applicable federal and provincial legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Services, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial legislation.
1.14 “Professional Services”
means any professional services described in an SOW.
means the on-line software as a service offerings delivered by VoPay to Customer including without limitation the VoPay Client Dashboard functionality, the VoPay APIs, the services listed in Section 2.2 and other aspects of the System, as made available by VoPay from time-to-time and as specified in the Order Form.
is defined in Section 2.4.
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.
is defined in Section 7.1.
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.
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.
1.21 “VoPay API”
means VoPay’s application programming interfaces, as made available by VoPay from time-to-time.
1.22 “VoPay Property”
means the Services, System, Anonymized Data, and all other intellectual property created, used or provided by VoPay to Customer pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto.
2.1 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.
2.2 Ancillary Terms.
If any of the Services listed in the below table are subscribed to by Customer in an Order Form, then the ancillary terms adjacent to such Services are hereby incorporated into and become a part of this Agreement by reference (the “Ancillary Terms”):
|EFT||EFT Terms of Service|
|e-Transfer||e-Transfer Terms of Service|
2.3 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.
2.4 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.
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.
2.6 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 provide advance notice where practicable.
2.8 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.
2.9 Account limits.
VoPay completes an assessment of each customer’s risk profile prior to commencing the Services. Depending on Customer’s risk profile as assessed by VoPay, VoPay 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 (“Account Limits”). Initial Account Limits will be set out in the initial Order Form. VoPay reserves the right to adjust Account Limits at any time, for any reason. In the event VoPay chooses to impose more restrictive Account Limits, VoPay will notify Customer, and 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 the revised Account Limits. Any such termination will take effect 60 days following the date VoPay receives Customer’s notice of termination.
2.10 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 2.10.
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.
3.1 Access and Security Guidelines.
Subject to any limitations associated with Customer’s 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 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 applicable Ancillary Terms), 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 to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation 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 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, illegal gambling, Ponzi and/or pyramid schemes, and money laundering;
(i) use the Services in a manner that is libelous 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 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;
(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 provided 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.
4.1 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, in its discretion, modify the Service Fees at any time by providing not less than 15 days’ prior written notice (via email) to Customer.
4.2 Fees for Professional Services.
Customer will pay all fees 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.
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 between the parties in writing, invoiced amounts are due within 30 days following the date of invoice. Overdue amounts will accrue interest at the rate of 12% per annum, or the highest legal interest rate, if less. Customer shall reimburse VoPay for all expenses (including reasonable attorneys’ fees) incurred by VoPay to collect any amount that is not paid when due.
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.
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.
4.6 Security Deposit.
Prior to commencing the Services, VoPay may require Customer to pay a security deposit in the amount set forth in the Order Form (the “Security Deposit”), to be held by VoPay as security against any claims which may arise from Customer’s use of the Services. The balance of the Security Deposit that has not been applied against any such claims will be returned to the Customer three months after the termination of this Agreement. At any time during the Term, VoPay may adjust the amount of the Security Deposit to be paid by Customer if VoPay has determined that the risk or Transaction profile of the Customer has changed.
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.
The restrictions on 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 domain through no act or omission of 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, (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.
6.1 System and Technology.
Customer acknowledges that VoPay retains all right, title and interest in and to the VoPay Property, and that the VoPay Property is protected by intellectual property rights owned by or licensed to VoPay. Other than as expressly set forth in this Agreement, no license or other rights in the VoPay Property are granted to the Customer, and all such rights are hereby expressly reserved by VoPay. Customer grants to VoPay a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Services.
6.2 Customer Data.
Customer retains all right, 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 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.
Unless otherwise agreed to in the Order Form, the term of this Agreement will commence on the Effective Date and continue for one year (the “Initial Term”). Thereafter, this Agreement will be automatically renewed from year to year for additional one 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.
7.3 Effect of Termination.
Upon the termination of this Agreement for any reason, (a) any amounts owed to VoPay under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control. 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.
Customer is responsible for all payments initiated using the Services, including without limitation any fraudulent activity that occurs through the 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 Customer’s sole responsibility to make VoPay and VoPay’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. Customer acknowledges and agrees that Customer’s Account or bank account may be automatically debited by VoPay for the aggregate amount owed by Customer due to a Reversal. In the event of any Reversal, VoPay reserves the right to terminate this Agreement immediately upon notice to Customer.
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.
10.1 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. Upon notice from VoPay, Customer will 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 are 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 the time frame set by VoPay.
(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.
THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY VOPAY TO CUSTOMER ARE PROVIDED “AS IS”, “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 AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
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.
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:
VOPAY’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT 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.
IN NO EVENT SHALL VOPAY BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR 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.
13.3 No Jury Trial.
CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
13.4 No Participating in Class Action.
CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
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.
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 user of the Services.
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. 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, 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
Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, VoPay may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and Customer agrees that this Agreement is specifically enforceable by VoPay through injunctive relief and other equitable remedies without proof of monetary damages.
14.5 Choice of Law.
This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles.
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, 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 writing signed by both parties may modify it.
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.
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