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Information Summary Box |
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Date of Agreement |
The Agreement is effective upon the date you
agree to it (by electronically indicating
acceptance) and continues indefinitely until
terminated by you or Finix.
This Agreement is not subject to an initial
term or renewals. |
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Acquirer |
Peoples Trust Company
#1400 - 888 Dunsmuir Street, Vancouver, BC, V6C
3K4
Tel: 1-844-304-2083 |
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Payment Processor |
Finix Canada, Inc.
66 Wellington Street West, Suite 5300, Toronto,
Ontario, M5K 1E6
Telephone: 1-415-888-5080
Finix Canada, Inc. is a registered ISO
and third-party servicer of
Peoples Trust Company. |
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Cancellation of Agreement and any
applicable penalties |
You can cancel this Agreement at any time for
any reason upon written notice to Finix.
We may cancel this Agreement at any time for
any reason upon 30 days’ written notice to you
or for cause under the conditions outlined in
this Agreement. There are no penalties to you
for cancelling, however, cancellation does not
alter your liabilities under this Agreement,
including those for processed payments, related
chargebacks, or other liabilities in connection
with this Agreement. Please refer to Sections 7
and 14.7.1 of the Agreement for further details.
You have the right to cost certainty.
If you are subject to an applicable fee
increase or we do not pass on an applicable
network fee reduction in full to you, then you
can cancel the Agreement without any form of
penalty at any time.
There are no cancellation fees. For details on
our cancellation procedures and who you need to
contact to cancel this Agreement, see Section 7
of the Agreement. |
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Complaint handling procedures |
You may file a complaint through
the following channels. More information
about each party’s complaint handling procedure
may be found at the website links below. |
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Finix Canada, Inc.
Telephone: 1-415-888-5080
Email: support@finix.com
Website: http://finix.com/terms-and-policies/complaint
Mail: 66 Wellington Street West, Suite 5300,
Toronto, Ontario, M5K 1E6 |
Peoples Trust Company
Telephone: 1-844-304-2083
Email: merchantacquiring@peoplestrust.com
Mail: #1400 - 888 Dunsmuir Street, Vancouver,
BC, V6C 3K4 |
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Statements |
Your transaction history and statements will be
available to you online no less than on a
monthly basis via the Finix Dashboard (see
Section 3.1 of the Agreement for more
information) or, if applicable, via the Partner
Platform. |
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Transaction return policy |
Fees charged for executing the original
Transaction will not be refunded in part or in
whole to you if such Transaction is refunded or
made subject to a Chargeback. |
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Code of Conduct for the Payment Card
Industry in Canada |
The Code of Conduct provides increased
pricing transparency, flexibility, and choice
for merchants with respect to accepting payment
cards. It sets out several rights that merchants
have in relation to their agreements and their
statements for payment card processing services.
All payment card networks operating in Canada
have adopted the Code.
More information about the Code of Conduct can
be found here: https://www.canada.ca/en/financial-consumer-agency/services/industry/laws-regulations/credit-debit-code-conduct.html
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BANK DISCLOSURE
Member Bank Information
Peoples Trust Company
14th Floor, 888 Dunsmuir Street
Vancouver, British Columbia, Canada V6C 3K4
Tel. (1-844-304-2083)
Important Bank Responsibilities
1.
Peoples Trust Company is the
only entity approved to extend acceptance
of Visa, MasterCard, Interac, Discover products
directly to a Merchant.
2.
Peoples Trust Company is responsible for
educating on pertinent Visa, MasterCard,
Interac, and Discover operating regulations with
which Merchants must comply (as applicable).
3.
Peoples Trust Company must hold, administer,
and control all reserve funds derived from
settlement.
4.
Peoples Trust Company must hold, administer,
and control settlement funds for the Merchant.
5.
Peoples Trust Company must be a principal
(signer) to the Merchant Agreement.
Important Merchant Responsibilities
1.
Complying with cardholder data security and
storage requirements
2.
Maintaining fraud and chargebacks below
established thresholds
3.
Reviewing and understanding the Merchant
Agreement
4.
Complying with Visa, MasterCard, Interac,
Discover operating regulations
The responsibilities listed above do not
supersede terms of the merchant agreement and
are provided to ensure the merchant understands
important obligations of each party and that the
Visa Member, Peoples Trust Company, is the
ultimate authority. |
Last modified: April 30, 2025
These
Finix General Terms of Service (“General Terms”) are entered into between Finix Canada, Inc., a corporation
registered under the laws of Ontario (“Finix”); Peoples Trust Company, a company incorporated pursuant to the
Trust and Loan Companies Act (Canada)
(“PTC” or “Financial Institution”); and the merchant (“Merchant”) that submitted an Application.
By accessing or using any of the Services, Merchant
agrees to comply with these General Terms, the
Application, all Services Schedules, the Documentation,
and any other terms and conditions
provided by Finix (which may be provided through
the Finix Dashboard, if applicable)
(collectively, the “Agreement”). Finix and Financial Institution may be collectively
referred to as “Processor” and may jointly or individually assert or exercise any
rights or remedies provided hereunder. Each of Finix,
Financial Institution, and Merchant is a “Party,” and are collectively the “Parties.”
By clicking “I Accept” or providing similar acknowledgement
of this Agreement (the date of which shall be the “Effective Date”), or by accessing or using the Services, Merchant agrees
that it has reviewed and understands all disclosures made
available to it, and Merchant agrees to this Agreement and
the Finix Privacy Policy. Each Party agrees that the
electronic signatures and equivalent indications of
acceptance by the Parties executing this Agreement are
intended to authenticate this Agreement on behalf of each
Party, and will have the same force and effect as manual
signatures.
By accepting this Agreement or using any Service,
Merchant consents to the electronic communications
requirements described in Section 14.1 of these
General Terms. This Agreement shall be deemed accepted
by Financial Institution as of the date the first
transaction is acquired under this Agreement.
If there is any conflict between these General Terms and
the terms of any Services Schedule or other terms and
conditions provided by Finix in connection with Merchant’s
use of the Services, then unless terms of lower precedence
expressly state to the contrary, the order of precedence is:
(a) the Services Schedules; (b) these General Terms; and (c)
all other terms incorporated by reference into this
Agreement, including any additional terms provided through
the Finix Dashboard. Capitalized terms in the Services
Schedules, any other terms incorporated by reference into
this Agreement, or any notice given under or in connection
with this Agreement, but not defined therein, will have the
meanings ascribed to them in these General Terms.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW
DISPUTES BETWEEN THE PARTIES ARE RESOLVED, WHICH INCLUDE
AN AGREEMENT TO SUBMIT ANY DISPUTE RELATED TO THIS
AGREEMENT OR THE SERVICES TO BINDING INDIVIDUAL
ARBITRATION RATHER THAN PROCEEDING IN COURT. THIS
AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH
MEANS MERCHANT AGREES NOT TO PROCEED WITH ANY DISPUTE AS
PART OF A CLASS ACTION.
1.1.
Use of Services. Merchant will use the Services for business purposes only
and not for any personal, family, or household purposes.
Merchant agrees that it may not submit Transaction
instructions on behalf of third parties. Processor will
provide the Services for Transactions submitted from
Merchant retail locations and e-commerce websites operating
in Canada. Merchant
represents and warrants that it is engaged in the business
of providing goods and/or services to its Customers at
location(s) or websites owned or leased and operated by
Merchant (or through a Partner Platform, in the case of
Platform Merchants) within Canada. Merchant agrees to use
the Services (i) to accept Cards and/or EFT as a means of
payment from its Customers for goods and services sold or
charitable donations received by Merchant; (ii) to make
Disbursements to its Merchant Payees, and/or (iii) to
authorize Finix to originate EFT debit and credit entries to
and from Merchant’s accounts as means of payment and
settlement, in each case in compliance with the requirements
of this Agreement. With respect to all Transactions,
Merchant represents and warrants that: (i) each Customer has
authorized the debiting and/or crediting of its account;
(ii) each Transaction is for an amount the Customer has
agreed to; (iii) each Transaction is in all other respects
properly authorized; (iv) each sales Transaction occurs in
connection with a bone fide purchase of goods or service
from Merchant by a Customer that has been or will be
completed in accordance with Merchant’s underlying agreement
with the Customer and the Rules; and (v) Merchant does not
operate a Prohibited Business.
1.2.
Financial Institution’s Role. Financial Institution is a member of various Card Brands,
excluding American Express, permitting it to acquire certain
Card Transactions and initiate EFT Transactions on
Merchant’s behalf. Financial Institution sponsors Finix under the Rules,
allowing Finix to process payment authorizations,
transmissions, and settlement activities for Card
Transactions, EFT Transactions and Disbursements under
Financial Institution’s direction. All Fund Transfer
Services are performed by Financial Institution based on
Finix’s instructions. Any Settlement Funds or other amounts
received from Merchant in connection with the Services
sponsored by Financial Institution shall be maintained in a
pooled custodial account held by Financial Institution.
Finix’s actions in connection with the Fund Transfer
Services are done on behalf of and as a service provider to
Financial Institution and Merchant. At no point during the
payment process or otherwise does Finix receive, hold or
transmit Settlement Funds or other Merchant funds. As a
technology partner, Finix implements functions on behalf of
Financial Institution and provides ancillary services to
Merchant.
Financial Institution’s responsibilities under this
Agreement are limited solely to the sponsorship and
settlement of Card Transactions, EFT Transactions
and Disbursements submitted in accordance with this
Agreement and the Rules,
and Financial Institution will not have any
obligation or liability of any nature in connection
with any instructions or services of any kind
provided by Finix or its affiliates or
subcontractors. Except for Financial Institution’s
specific responsibilities described in this Section
1.2, Finix is solely responsible for the
Services.
1.4.
Sole Proprietors. If Merchant is organized as a sole proprietorship,
Merchant expressly acknowledges and agrees that the sole
proprietor responsible for Merchant’s business may be
held personally liable and responsible to Processor for
all of Merchant’s obligations under this Agreement,
including, without limitation, Merchant’s payment
obligations and obligations to Customers.
1.5.
Merchant Support. Finix (or a Partner Platform, in the case of Platform
Merchants) will provide Merchant with support for
general issues relating to Merchant’s use of the
Services through the Finix Dashboard and the
Documentation.
2.1.
Compliance with Applicable Law and the Rules. Merchant agrees to comply with Applicable Law and the
Rules in connection with this Agreement. With respect to
Recurring Transactions, Merchant will ensure that any such
payments comply with the disclosure and authorization
requirements of Applicable Law, including, but not limited
to applicable federal, provincial and territorial laws, the
Rules, and any other requirements applicable to
preauthorized or recurring payments. Merchant will provide
Finix with written notice not more than five (5) days after
Merchant receives any complaint, inquiry, subpoena, civil
investigative demand, or similar request for information
from a Regulatory Authority or any other a federal,
provincial, territorial, or local government, agency, or
entity relating to the Services or this Agreement. If there is any conflict between this Agreement and the
Rules, then the Rules shall govern.
2.2.
Notice of Changes. Merchant will provide
Finix with immediate notice in writing of (i) a Change of
Control of Merchant; (ii) its intent to change the nature of
its business, including the types of goods and services sold
or the manner in which sales are completed; (iii) a change
to Merchant’s financial condition (within three
(3) days); (iv) any additional location or new
business; (v) a change in the identity of principals,
officers, Beneficial Owners, or any other individuals
previously made known to Finix; or (vi) a change in the form
of business organization. Merchant will immediately notify
Finix of any bankruptcy, receivership, insolvency, or
similar action initiated by or against Merchant or any of
its principals, and Merchant agrees that Processor may
exercise any rights set forth in this Agreement (including
those of set-off) if Merchant files for bankruptcy,
including debiting of the Reserve Account. Merchant will
include Finix in the list of creditors filed with the
bankruptcy court, whether or not a claim exists at the time
of filing. Except in the case of a change to Merchant’s
financial condition, Finix must receive all such notices
seven (7) days prior to the change and otherwise upon
request from Finix. Merchant is liable to Processor for all
losses and expenses incurred by Processor arising out of or
related to Merchant’s failure to report changes. Processor
may immediately terminate this Agreement upon a change to
the information in the Application, whether Processor
independently discovers such change or whether Merchant
notifies Processor of such change. Failure to provide notice
as required in this Section may be deemed a material breach
and will be sufficient grounds for termination of this
Agreement, or, at Processor’s option, may result in
Processor amending the terms of this Agreement, holding
funds, and/or altering the Settlement Payout Schedule if
Processor deems it necessary to protect against financial
loss. If any of the changes listed above occur, Processor
will have the option to amend the terms of this Agreement or
immediately terminate this Agreement.
2.3.
Merchant Refund Policy. Merchant agrees to maintain a written refund policy that
complies with the Rules and Applicable Law and to disclose
such policy to Finix and all Customers. Merchant will submit
any changes to its refund policy to Finix in writing at
least thirty (30) days before the change and will not
implement any change to which Processor reasonably objects.
If Merchant operates a website through which sales are
processed, Merchant must include its refund policy on the
website in accordance with the Rules and Applicable Law.
Merchant will not make a refund or adjustment in cash
(except when required or permitted by Applicable Law or the
Rules) and will deliver to Finix all information reflecting
such refund or adjustment within three (3) days of the
refund or adjustment. The amount of any refund must not
exceed the amount of the original Transaction except for any
amount which Merchant agrees to reimburse the Customer for
return postage. Merchant will not accept any payment from a
Customer as consideration for issuing a refund. Merchant is
solely responsible for settling any disputes between
Merchant and its Customers. Processor will have no
responsibility in resolving or settling such disputes.
2.4.
Data Security; Software. Merchant will be solely responsible for the security and
confidentiality of Transactions processed by means of
electronic commerce. Merchant will include any information
or disclosures required by the Rules or Applicable Law on
Merchant’s website or as otherwise specified by Processor.
Merchant will be solely responsible for its use of any fraud
prevention services provided by any third party or web
software vendor selected by Merchant. Processor will not be
responsible for the security of or preventing fraud in
electronic commerce Transactions presented by Merchant or
any third party providing electronic commerce services to
Merchant. Merchant will disclose to Finix and receive prior
approval for all third parties that have access to Customer
Data. Merchant
agrees to indemnify, defend, and hold harmless Processor and
its parent companies, subsidiaries, and Affiliates
(including, without limitation, the officers, directors,
employees, attorneys, shareholders, representatives, and
agents of all of the foregoing) against all losses from
fraudulent activity related to electronic commerce
(including Chargebacks). If at any time Merchant determines
or suspects that Customer Data has been compromised,
Merchant must notify Finix immediately and assist in
providing notification to such parties as may be required by
Applicable Law or the Rules, or as Processor otherwise
reasonably deems necessary.
2.5.
Use of Vendors and Service Providers. Merchant must notify Finix of its use of any third-party
vendor or service provider in connection with receiving or
using the Services or to the extent required by the
Networks. All vendors and service providers and software
involved in processing, storing, receiving, or transmitting
of Customer Data must be (i) compliant with all Rules
applicable to service providers; and (ii) registered with
and/or recognized by such Network, as applicable. Merchant
agrees to exercise due diligence to ensure that all vendors
and service providers, and any other agents, business
partners, contractors, or subcontractors with access to
Customer Data maintain compliance with the Rules, Applicable
Law, and this Agreement.
2.6.
Third Party Assessments and Pass-Through Costs. Merchant will be responsible for all amounts imposed,
passed through, or assessed against Finix or Financial
Institution in connection with this Agreement by the
Networks, processors, telecommunication companies, third
party service providers, or any other third party, including
but not limited to Card Brand Core Fees and Other Card Brand
Fees (“Pass-Through Costs”).
2.7.
Acceptance of Payments. Merchant may accept Card, EFT, and other payments
approved by Finix only at location(s) approved by Finix.
Additional locations may be added, subject to Finix’s
approval. Finix may delete location(s) by providing notice
as provided in this Agreement. Merchant may not use any
electronic authorization or data capture terminal or device
to process Transactions that has not been approved in
writing by Finix.
3.
USE OF FINIX TECHNOLOGY
3.1.
Access to Finix Dashboard. Finix may provide Merchant with the ability to access an
online, interactive graphical user interface that provides
Merchants with an overview of their Finix accounts and tools
to access and manage use of the Services (the “Finix Dashboard”). Merchants may access the Finix Dashboard directly, or
if a Platform Merchant, through the Partner Platform, as may
be applicable. Merchant is solely responsible for
reconciling information in the Finix Dashboard with its
transaction records and identifying any errors. Merchant
agrees to promptly notify Finix (or Partner Platform if
applicable) of any errors. Finix will investigate and, if
appropriate, attempt to correct reported errors. Merchant’s
failure to report an error within sixty (60) days of it
first appearing in the Finix Dashboard will be deemed a
waiver of any right to amounts that may be owed to Merchant
in connection with such error.
3.2.
License and Restrictions. Subject at all times to Merchant’s full compliance with
this Agreement, Finix hereby grants Merchant a worldwide,
revocable, non-exclusive, non-transferable,
non-sublicensable, and royalty-free license during the Term
to use and access the Finix Technology solely for accessing
and managing Merchant’s use of the Services for commercial
purposes related to Merchant’s business.
Merchant will not (i) use the Finix Technology to
create any service, software, documentation, or other
material that performs substantially the same
functionality as the Finix Technology; (ii) disassemble,
decompile, reverse-engineer or use any other means to
attempt to discover any source code, algorithms or trade
secrets underlying the Finix Technology or any of its
components; (iii) impose (or permit any third party to
impose) any lien, security, or other encumbrance upon
the Finix Technology; (iv) adapt, combine, create
derivative works of or otherwise modify the Finix
Technology; (v) disable, circumvent, or otherwise avoid
or undermine any security device, mechanism, protocol,
or procedure implemented in the Finix Technology; (vi)
use or access the Finix Technology for any unlawful,
fraudulent, deceptive, malicious, or otherwise harmful
or injurious purpose; (vii) remove, obscure, deface, or
alter any proprietary rights notices on any element of
the Finix Technology or Documentation; or (viii) use the
Finix Technology in any manner which could damage,
disable, overburden, or impair the Finix Technology or
interfere with any third party’s authorized use of the
Finix Technology. Merchant will not utilize any
software, hardware, or other tool to scan or monitor the
Finix Technology or Finix’s servers or network
infrastructure for the purpose of measuring or analyzing
uptime, operating systems, virtual environments, or
other installed applications, including without
limitation for stress testing, load testing, or
performance benchmarking.
3.3.
Access Credentials. Merchant is responsible for securing and maintaining the
confidentiality of any login or access credentials to the
Finix Technology, including without limitation those
provided by Finix or Partner Platform to Merchant to allow
Merchant to access or use the Dashboard, and Merchant will
be fully responsible for all activities that occur through
the use of such credentials. Merchant agrees to notify Finix
immediately if Merchant believes the confidentiality of such
credentials has been compromised or if Merchant suspects
unauthorized use of such credentials. Finix and Financial
Institution will not be liable for any loss or damage
arising from Merchant’s failure to comply with this
paragraph.
3.4.
Feedback. Merchant may provide
Feedback to Finix from time to
time through the Dashboard or other means of communication
acceptable to Finix. Finix will have full discretion to determine whether or not
to proceed with the development of the requested
enhancements, new features or functionality.
Feedback, even if designated as confidential by
Merchant, will not create any confidentiality obligation
for Finix, notwithstanding anything else in this
Agreement. Merchant will, and hereby does, grant to
Finix a non-exclusive, worldwide, perpetual,
irrevocable, transferable, sublicensable, royalty-free,
fully paid up license to use and exploit the Feedback
for any purpose. Nothing in this Agreement will impair
Finix’s right to develop, acquire, license, market,
promote or distribute products, software or technologies
that perform the same or similar functions as, or
otherwise compete with, any products, software or
technologies that Merchant may develop, produce, market,
or distribute.
3.5.
Rights Reserved.
As between the Parties, Processor retains all right, title,
and interest in and to the Services, and all software,
products, works, and other intellectual property and moral
rights related thereto or created, used, or provided by
Processor for the purposes of this Agreement, including any
copies and derivative works of the foregoing. No rights or
licenses are granted except as expressly and unambiguously
set forth in this Agreement.
4.
FEES
4.1.
Fees; Payment Obligation. Merchant agrees to pay the Fees specified in the Finix
Dashboard or as otherwise provided by Finix (or Partner
Platform if applicable), as may be amended by Finix (or
Partner Platform if applicable) from time to time. Finix may
instruct Financial Institution to deduct Fees (including
Platform Fees, if applicable) owed by Merchant from (i)
amounts due to Merchant under this Agreement (including from
Settlement Funds); (ii) the Settlement Account; or (iii) the
Reserve Account. Merchant will pay the amounts due by the
next Business Day if sufficient funds are not available in
the Settlement Account or the Reserve Account.
4.2.
Fee Increases. Finix (or Partner Platform if applicable) may increase
any or all parts of the Fees by giving Merchant at least
thirty (30) days advance written notice (or longer period as
required by Applicable Law). Merchant agrees that the Fees
may be based upon Merchant’s estimated Transaction volume or
other information provided by Merchant in the Application.
Finix (or Partner Platform if applicable) reserves the right
to increase Fees (including the rates at which they are
calculated) if there is any material variance from the
information provided by Merchant in the Application or other
information (such as projected volume or average ticket
size) upon which Fees were initially determined. Finix (or
Platform Partner if applicable) shall provide at least
thirty (30) days prior written notice (or longer period as
required by Applicable Law) of any increase in an existing
Card Brand Core Fee (which is passed on in full or in part
to Merchant), any new Card Brand Core Fee (which is passed
on in full or in part to Merchant) or where Finix does not
pass through the full savings from any reduction to a Card
Brand Core Fee. In the event of a Fee or Card Brand Core Fee
increase, the introduction of a new Fee or Card Brand Core
Fee, or where Finix does not pass through the full savings
from any reduction to a Card Brand Core Fee that is
applicable to Merchant, Merchant may terminate this
Agreement without penalty within seventy (70) days after the
effective date of the corresponding fee increase,
introduction of a new fee, or fee reduction, as
applicable.
4.3.
Payments of Amounts Owed;
Invoicing. Merchant agrees to pay amounts owed to Finix, including
for all (i) Fees assessed by Finix and other charges,
penalties, or other amounts owed by Merchant; (ii) all
refunds, and Chargebacks; (iii) all Disbursements, (iv)
Reserve Account amounts; (v) fees, charges, fines,
assessments, penalties, or other liabilities that may be
imposed on Processor from time to time by the Networks in
connection with providing the Services, and all related
costs and expenses incurred by Processor. Chargebacks,
Disbursements or losses from fraudulent activity are the
complete, full, and sole responsibility of Merchant.
Processor may deduct, recoup, or setoff all such Fees and
other amounts Merchant owes under this Agreement from
Merchant’s Settlement Funds or Settlement Account.
Merchant’s obligation to pay is not contingent upon delivery
of an invoice. If Finix issues Merchant an invoice, Merchant
agrees to pay the amounts set forth in such invoice in
accordance with the invoice instructions. If payment is not
received (or if an invoice is not paid in full), Finix may
charge Merchant a late payment fee at the lesser of
one-and-one-half percent (1.5%) per month or the highest
rate allowable by law, in each case compounded monthly to
the extent allowable by Applicable Law. Finix will apply all
payments beginning with the oldest amounts due.
4.4.
Refunds. Fees charged for executing the original Transaction will
not be refunded in part or in whole to Merchant if such
Transaction is refunded or made subject to a
Chargeback.
4.5.
Fee Disputes. If Merchant, in
good faith, disputes any portion of an invoice provided by
Finix, Merchant will pay the undisputed portion of the
invoice and submit a Fee Dispute Notice to Finix within
sixty (60) days from the date the invoice at issue is
received by Merchant. Merchant waives the right to dispute
any Fees not disputed within such sixty (60) day period. The
Parties will negotiate in good faith to attempt to resolve
any such disputes within sixty (60) days after Merchant’s
delivery of the applicable Fee Dispute Notice.
5.
TRANSACTION SETTLEMENT; RESERVE ACCOUNT;
CHARGEBACKS.
5.1.
Transaction Settlement; Settlement Account. Merchant agrees to designate and maintain a Settlement
Account that accepts EFT transfers with a balance of
available funds sufficient to accommodate Merchant’s
obligations under this Agreement. When Financial Institution
receives Settlement Funds from a Network, Financial
Institution will hold those Settlement Funds on Merchant’s
behalf in a pooled custodial account at Financial
Institution. Finix will instruct Financial Institution to
provide provisional credit to Merchant for each valid
Transaction processed for Merchant on a gross or net basis
pursuant to the Settlement Payout Schedule, provided that
Financial Institution has received settlement for the valid
Transaction from the applicable Network. Each Business Day,
Financial Institution, upon instruction by Finix, will remit
Settlement Funds from the pooled account at Financial
Institution to Merchant’s designated Settlement Account less
(i) any amounts Processor is authorized to deduct or
withhold under this Agreement, and (ii) any Disbursements
requested by Merchant from Settlement Funds. Merchant agrees
that the transfer of Settlement Funds to the Settlement
Account or the Disbursement of such funds on behalf of
Merchant will discharge Processor of its settlement
obligations to Merchant. Processor is not obligated to
provide provisional credit to Merchant for Transactions that
are not valid, and Processor may suspend or discontinue any
provisional credit in Processor’s sole and absolute
discretion. If there are not sufficient available funds in
the Settlement Account to cover Merchant’s obligations
hereunder, Processor may make deductions from Settlement
Funds without notice.
5.2.
Refusal to Process; Suspension of Settlement.
5.2.1.
Processor reserves the right to refuse to process any
Transaction or return for correction any Transaction
presented by Merchant if Processor reasonably believes that
the Transaction (i) may be uncollectible from the Customer;
(ii) violates this Agreement, Applicable Law, or the Rules;
or (iii) may involve Suspicious Activity. Processor will
have no liability for any losses, either direct or indirect,
which Merchant may attribute to any suspension or refusal of
settlement for Transactions.
5.2.2.
If Processor determines, in its sole and reasonable
discretion, that a Transaction may be the result of or may
result in Suspicious Activity, Processor may take such
actions as Processor deems necessary to prevent or mitigate
actual or future risks of harm, including, but not limited
to (i) suspension of processing privileges; (ii) increase of
any Fees that may be charged to Merchant; and/or (iii)
creation or maintenance of a Reserve Account in accordance
with this Agreement.
5.2.3.
Merchant shall ensure that the rate of all Chargebacks does
not exceed the percentage thresholds permitted by the Rules.
In the event Chargebacks exceed such percentage thresholds,
Merchant shall provide a detailed explanation to Processor
regarding such percentage. Processor, in its sole
discretion, may immediately terminate this Agreement or
suspend the Services, in whole or in part, if (a) Merchant
fails to provide such explanation, or (b) if after
investigation of Merchant's explanation, Processor
reasonably determines that Merchant will be unable to reduce
the excessive rate of Chargebacks within a commercially
reasonable period of time.
5.3.
Reserve Account.
5.3.1.
At any time and for any reason (including, without
limitation, notice of termination or actual termination of
this Agreement, unauthorized Transactions, cessation of
business, insolvency, Suspicious Activity, or competing
claims regarding funds generated via Merchant’s processing
activities), Processor may require Merchant to establish one
or more Reserve Accounts for the Services, increase the
funding amount of an existing Reserve Account, or provide
other security to pay amounts due or anticipated under this
Agreement. Merchant acknowledges that Processor may require
additional or separate Reserve Account(s) in connection with
Merchant’s receipt of Services under additional Services Schedules
to this Agreement. Processor may require that such
Reserve Account(s) be funded (whether initially or due
to increased funding requirements) immediately
(including, without limitation, in instances of
unauthorized transactions, suspected or actual fraud, or
termination for cause). Processor may, without prior
notice, establish and fund a new Reserve Account or
increase the funding of an existing Reserve Account by
deducting amounts from Settlement Funds or by charging
the Settlement Account or any other available account of
Merchant; provided that Finix will notify Merchant of
the establishment or increased funding of the Reserve
Account no later than three (3) Business Days after
doing so.
5.3.2.
Except as otherwise agreed upon in writing by the Parties,
funds in the Reserve Account(s) will remain in the Reserve
Account(s) for a minimum of one hundred eighty (180)
calendar days following the date on which this Agreement is
terminated and until such time as Processor is satisfied
that Merchant has no further obligations to Processor under
this Agreement; provided, however, that Merchant will remain
liable to Processor for all liabilities occurring during and
beyond such 180-day period. After the expiration of such
180-day period, Finix will notify Merchant when any funds
remaining in the Reserve Account(s) are eligible to be
released, and Merchant will promptly respond with
instructions for how they should be returned to Merchant.
5.3.3.
Merchant’s failure to fund the Reserve Account (whether
initially or due to increased funding requirements) may
result in immediate suspension of Services or termination of
this Agreement in Processor’s sole discretion. Merchant has
no legal or beneficial interest in the Reserve Account,
which funds are held for the benefit of the Networks and
Processor, until such time as the funds are released to
Merchant. Processor will have sole control of the Reserve
Account if there is any bankruptcy proceeding. If there is a
bankruptcy proceeding, Processor may exercise its rights
under this Agreement to debit the Reserve Account for
amounts due to the Networks or Processor regardless of the
pre-petition or post-petition nature of the amount due
Processor. If there is a bankruptcy proceeding, Merchant
agrees that it will not contest any motion for relief from
the automatic stay, which Processor may file to debit the
Reserve Account; and funds in the Reserve Account will
remain in the Reserve Account following termination for such
timeframe as determined by Processor.
5.4.
Security Interest. Merchant hereby grants Finix a lien and security interest
in all of Merchant’s right, title, and interest in or to any
of the following assets or properties: (i) the Settlement
Account; (ii) all Transactions and Settlement Funds; (iii)
any rights to receive credits or payments under this
Agreement; (iv) if a court of law determines the funds in
the Reserve Account(s) are owned by Merchant, then the
Reserve Account(s); and (v) all deposits and other property
of Merchant that Finix or its Affiliates possess or maintain
(including all proceeds of the foregoing). Merchant will
execute, acknowledge, or deliver any documents or take any
actions Finix may from time to time request to better
assure, preserve, protect, perfect, maintain, or enforce
this security interest. To the extent permitted by law,
Merchant irrevocably authorizes Finix to file any financing
statements (at Merchant’s expense) in any relevant
jurisdiction or any other documents or instruments related
to this security interest. Finix will also be the
beneficiary of any insurance, surety bond, or similar
indemnity or guaranty (whether voluntary or required by law)
of Merchant or for the benefit of Merchant’s Customers, and
Merchant hereby assigns to Finix the rights to make claims
or receive the benefits thereof with respect to Transactions
hereunder. Merchant represents and warrants that (a)
Merchant has good and valid rights and title to the property
described herein; (b) Merchant has full power and authority
to grant Finix the security interest pursuant hereto and to
execute, deliver, and perform its obligations in accordance
with the terms of this Agreement, without the consent or
approval of any other person or entity; (c) no other person
or entity has a security interest or lien in any of the
property described herein; and (d) this security interest is
a first lien security interest and secures Merchant’s
obligations to Finix under this Agreement. Finix will have
all rights of a secured party and Merchant must obtain the
prior written consent of Finix before granting any
subsequent security interest or lien in the property
described herein. Merchant agrees that it is Merchant’s
intent that these accounts and secured property will to the
extent allowed by law not be subject to any preference,
claim, or stay by reason of any bankruptcy or insolvency
law. Merchant agrees to act consistently with the
understanding that said accounts and secured property under
this Agreement are free of all such preferences, claims, or
stays by reason of and as allowed by any such law.
5.5.
Authorization to Deposit and Withdraw from Settlement
and Reserve Accounts; Pre-Authorized Debits
(“PADs”). Merchant authorizes Finix to initiate and make debit and
credit entries to the Settlement Account, the Reserve
Account, or any other account maintained by Merchant at any
institution that is a member of the Canadian Payments
Association, doing business as Payments Canada, all in
accordance with this Agreement, or to delay or place holds
on any amounts in such accounts in order to pay amounts owed
to the Networks or Processor, or to protect any of
Processor’s rights and to obtain, without any further notice
or demand, payment of any amount due to Processor under this
Agreement, including, without limitation, (i) Fees and other
charges, penalties, or other amounts owed by Merchant; (ii)
all refunds and Chargebacks; (iii) all Disbursements, (iv)
Reserve Account amounts; (v) fees, charges, fines,
assessments, penalties, or other liabilities that may be
imposed on Processor from time to time by the Networks in
connection with providing the Services, and all related
costs and expenses incurred by Processor. Merchant agrees
that any withdrawal by Financial Institution in accordance
with this Agreement are PADs for business purposes, as
defined under Rule H1 of Payments Canada. Merchant hereby waives the right to receive advance
notice from Finix or Financial Institution of any and
all such debits. This authorization will remain in effect after
termination of this Agreement and until all of Merchant’s
obligations to Processor have been paid in full. If Merchant
changes the Settlement Account, this PAD authorization will
apply to the new account and Merchant shall provide Finix in
writing such information regarding the new account as Finix
deems necessary. Such new account shall thereafter be and
become the “Settlement Account” for the purpose of this
Agreement. If Merchant changes the Settlement Account,
Merchant agrees that it is responsible for all costs
incurred by Finix or Financial Institution in connection
with such decision to change the Settlement Account.
Merchant is solely responsible for providing Processor with
and maintaining accurate contact, payment, and account
information for each Settlement Account, including any
applicable tax information. Merchant may revoke this PAD
authorization upon thirty (30) days’ prior written notice to
Finix, but any such revocation shall constitute a material
breach of this Agreement. Merchant may obtain a sample
cancellation form, as well as further information on
Merchant’s right to cancel a PAD authorization by contacting
Merchant’s financial institution or by visiting
the www.payments.ca. Merchant has certain recourse rights if any debit does
not comply with the PAD authorization set forth in this
Section. For example, Merchant has the right to receive
reimbursement for any debit that is not authorized or is not
consistent with the PAD authorization set forth in this
Section. To obtain more information on recourse rights,
Merchant may contact its financial institution
or www.payments.ca.
6.
PARTNER PLATFORM ACCOUNTS AND SERVICES.
The following additional provisions apply to Platform
Merchants that access the Services through a Partner
Platform. For the avoidance of doubt, Platform Merchants are
subject to the terms and conditions in this Agreement
generally applicable to Merchants, in addition to those
terms and conditions specifically applicable to Platform
Merchants.
6.1.
Establishment of Partner Platform Accounts.
The Finix Technology allows a Platform Merchant to
access the Services through an integration between a
Partner Platform and Finix. Finix may provide options
for how Platform Merchants sign up for and receive the
Services, including through Partner Platforms, as
described in the Documentation. The Partner Platform is
solely responsible for the selection of the onboarding
mechanism for each Platform Merchant. Platform Merchant
must at all times be a party to an effective Partner
Platform Agreement that addresses the provision of
Services under this Agreement through the Partner
Platform. Finix will not be responsible or liable to
Platform Merchants for any services provided through or
in connection with the Partner Platform outside of the
Services in this Agreement.
6.2.
Use of Services. Platform Merchant agrees that the Partner Platform may
submit Transactions and conduct other activity involving the
Services on behalf of Platform Merchant pursuant to the
terms of the Partner Platform Agreement. Additional terms,
conditions, and limitations for Platform Merchant’s access
to the Services may be set forth in the Partner Platform
Agreement. Platform Merchant agrees to comply at all times
with the Partner Platform Agreement. Platform Merchant
remains liable to Processor as set forth in this Agreement,
regardless of any other provisions set forth in the Partner
Platform Agreement. Platform Merchant agrees that Finix may
rely on any information provided by Partner Platform on
behalf of Platform Merchant, regardless of its accuracy or
completeness.
6.3.
Platform Merchant Fees.
Unless otherwise agreed to by the Parties, the Partner
Platform is responsible for setting the Platform Fees
charged to Platform Merchant for the Services and
disclosing them to Platform Merchant. The Platform Fees
typically include the Fees owed to Finix under this
Agreement plus any additional fees charged by the
Partner Platform. Processor is not responsible for the
Platform Fees. In addition to Finix’s rights under this Agreement, if
requested by the Partner Platform, Financial Institution,
upon direction of Finix, may deduct from Platform Merchant’s
Settlement Funds any Platform Fees or other amounts owed to
Processor under this Agreement or to Partner Platform under
the Partner Platform Agreement. The Partner Platform is
solely responsible for determining whether or not Platform
Fees are refundable.
6.4.
Communications with Platform Merchants.
Platform Merchant will transmit all Processing Data,
notices, instructions, communications, and other
information required to be sent or communicated to
Processor under this Agreement through the Partner
Platform, or in some cases through the Finix Dashboard,
in accordance with the terms and conditions of the
Partner Platform Agreement. Finix will send to Partner
Platform all notices, communications, and other
information required to be sent by Processor to Platform
Merchant under this Agreement, and Partner Platform will
be solely responsible for communicating that information
to Platform Merchant in accordance with the Partner
Platform Agreement, including, without limitation, all
notices and information from Processor concerning the
Services, Chargebacks, Fee increases, Reserve Accounts, Network requirements, and scheduled or emergency downtime.
Platform Merchant agrees that Partner Platform is solely
liable and responsible for any failure to provide effective
notice to Platform Merchant through the Partner Platform or
the Finix Dashboard. Platform Merchant agrees that Platform
Merchant is solely liable and responsible to Processor if a
Partner Platform fails to transmit any information or
communication to Processor required by Platform Merchant
under this Agreement.
6.5.
Liability; Disclaimer.
Platform Merchant is solely responsible for any use of
or access to the Finix Technology or Services initiated
by Partner Platform on Platform Merchant’s behalf or
using Platform Merchant’s credentials, including the
accuracy and completeness of any information transmitted
by Partner Platform to Processor. Platform Merchant will
indemnify and hold Processor harmless from any losses
incurred by Platform Merchant or any third party based
on unauthorized activity initiated by Partner Platform,
its employees, or its agents. If Platform Merchant experiences any Chargebacks, Platform
Merchant must communicate and cooperate with Partner
Platform to resolve the Chargeback in accordance with the
Rules, this Agreement, and the Partner Platform Agreement.
Processor is not responsible to Platform Merchants for
Partner Platform’s handling of Chargebacks or any services
provided by Partner Platform that are outside the scope of
this Agreement.
Furthermore, Processor is not responsible for and
disclaims all liability for Partner Platform’s and its
Affiliates’, employees’ and agents’ (a) acts or
omissions in providing any of Partner Platform’s
services to Platform Merchants; (b) compliance with
Applicable Law and obligations related to the services
provided by Partner Platform; and (c) providing customer
service, notifications, receipts, handling refunds or
consumer complaints, or taking other actions related to
the services provided by Partner Platform.
7.
TERM AND TERMINATION.
7.1.
Term. The term of this Agreement commences on the Effective
Date and continues until this Agreement is terminated by
Merchant or Processor pursuant to the terms herein (the
“Term”).
7.2.
Termination by Merchant. Merchant may terminate this Agreement at any time by
providing notice to Processor.
7.3.
Cancellation Procedure upon Termination by
Merchant.
To cancel this Agreement, Merchant shall notify the
Processor in accordance with Section 14.7.
7.4.
Termination or Suspension of Services by
Processor.
7.4.1.
Processor may terminate this Agreement or a Services Schedule
with thirty (30) days’ prior notice at any time and for
any reason; provided that, this Agreement will automatically terminate
if Merchant is not approved by Processor (after submitting
an Application) to use or access the Services.
7.4.2.
Processor may terminate this Agreement or suspend or
terminate Merchant’s access to all or part of the Services
or Finix Technology immediately if
(i) Merchant experiences, or Processor reasonably
suspects Merchant could experience, Suspicious Activity;
(ii) Processor reasonably determines that Merchant’s
Transactions or the circumstances surrounding its
Transactions have otherwise become irregular or increase
Finix’s or Financial Institution’s exposure to
Chargebacks, reputational, or other security risks;
(iii) there has been a material or potentially material
deterioration of Merchant’s financial condition; (iv)
Merchant becomes subject to any voluntary or involuntary
bankruptcy, insolvency, reorganization, or liquidation
proceeding, a receiver is appointed for Merchant, or
Merchant makes an assignment for the benefit of
creditors, or admits inability to pay its debts as they
become due; (v) Merchant ceases doing business as a
going concern, or there is a Change of Control; (vi)
Merchant is in breach of this Agreement (including but
not limited to the Documentation), the Rules, or
Applicable Law; (vii) Merchant’s name or its
principals’ names are listed on a Network terminated
merchant or risk monitoring program; (viii) directed to
do so by Financial Institution, any Regulatory
Authority, or a Network; (ix) Merchant or Merchant’s
principals become subject to any criminal or civil
action, suit, or proceeding or to any government or
regulatory investigation or enforcement action; or
(x) Merchant fails to process any Transactions for at
least two (2) consecutive calendar months and is not a
seasonal merchant. If Merchant was boarded through a
Partner Platform, this Agreement terminates
automatically when Merchant’s Partner Platform Agreement
terminates. This Agreement will automatically terminate
if: (a) Finix’s sponsorship agreement with Financial
Institution terminates; (b) Finix is no longer properly
registered with the Networks; or (c) Financial
Institution ceases to be a member of the Networks,
excluding American Express.
Any suspension or limitation pursuant to this Section will
be in addition and without prejudice to any remedy available
to Processor at law or in equity if Merchant breaches this
Agreement.
7.5.
Effect of Termination.
7.5.1.
Termination of a Services Schedule
or any individual Services will not automatically effect
a termination of the entire Agreement, any other
Services Schedule, or any Services outside the scope of
the terminated Services Schedule. Any notice of
termination of this Agreement must clearly identify the
terminating Party’s intent to terminate the entire
Agreement.
7.5.2.
Upon termination of this Agreement, Merchant will return
any of Processor’s property, equipment, or forms. Merchant’s
obligations under this Agreement with respect to
Transactions, Chargebacks, the Settlement Account, and
Reserve Accounts will survive termination of this Agreement.
Following termination of this Agreement, Processor reserves
the right to require Merchant to establish and fund new
Reserve Account(s) or deposit additional funds into existing
Reserve Accounts. Processor’s rights and authorizations
under this Agreement to debit and credit Merchant’s
Settlement Account and Reserve Account(s) will also survive
termination of this Agreement.
7.5.3.
Merchant acknowledges that the Networks may maintain
registries containing the names of any business (and its
principals) which have been terminated for certain reasons.
Merchant acknowledges that Processor may be required to
report Merchant (and its principals) to the Networks if this
Agreement is terminated. Merchant agrees and consents to
such reporting if this Agreement is terminated as may be
required by the Rules. Merchant also acknowledges that
Processor may submit a derogatory report on Merchant and its
principals to a consumer and/or business credit reporting
agency. Processor will not be liable to Merchant or its
principals for any damages (including prospective sales or
profits) due to termination of this Agreement or reporting
to the Networks or a credit reporting agency by Processor.
7.5.4.
It is the express agreement of Processor and Merchant that
the acquisition of Transactions hereunder is a financial
accommodation and, if Merchant becomes a debtor in any
bankruptcy or similar proceeding, then (i) such event will
be deemed a default for purposes of this Agreement; and (ii)
it is the intent of the Parties that, unless otherwise
agreed by Processor, this Agreement should not be assumed or
enforced by any other person and Processor should be excused
from performance hereunder.
7.5.5.
On termination of the Agreement for any reason or
expiration of its Term, Processor shall securely destroy all
Customer Data (including any data storage media) processed
on Merchant’s behalf under this Agreement after the end of
the provision of Services and destroy any existing copies,
unless Applicable Law or the Rules require Processor to
retain such Customer Data. This provision shall not apply to
copies of electronically communicated Customer Data stored
as a matter of routine information technology back-up.
8.
AUDIT AND RISK MANAGEMENT.
8.1.
Processor may monitor Merchant’s business and Transactions
for risk management purposes. Merchant must immediately
remedy any and all issues identified by Processor if
Processor determines, in its sole discretion, that Merchant
is operating in a manner that violates Applicable Law, the
Rules, or this Agreement, or which poses a material risk of
harm to Processor. If Processor identifies any Suspicious
Activity, Processor is authorized to take protective actions
including (i) closing terminals; (ii) blocking Transactions;
(iii) holding funds (including, without limitation, charging
any applicable Fees or increasing Reserve Account
requirements); and (iv) investigating such Suspicious
Activity. Processor may impose caps or limitations on
Merchant’s use of the Services, including Transaction
processing, in Processor’s sole discretion. Processor may
change any such caps or limits from time to time, without
prior notice to Merchant. If Merchant exceeds an established
cap or limit, Processor may suspend the processing of
Transactions beyond such cap or limit. The foregoing
provision does not limit any other rights or remedies of
Processor set forth in this Agreement.
8.2.
Merchant agrees to cooperate in any audit, examination, or
investigation as may be required by Processor, the Networks,
or a Regulatory Authority; and upon request and reasonable
prior notice, permit Processor, the Networks, or a
Regulatory Authority to conduct an on-site inspection of
Merchant’s premises and examine Merchant’s books, records,
practices, and systems, but only to the extent that each
pertains to compliance with this Agreement. Any audit that
is required by Applicable Law or the Rules will be at
Merchant’s sole expense. Except as stated otherwise herein,
all other audits will be at Processor’s expense. Processor
and any other applicable entities will have the right to
retain a third party to perform any audit. Merchant agrees
to implement any changes identified pursuant to an audit
necessary to remediate or prevent any violation of
Applicable Law or the Rules. If Processor, in its
discretion, determines that there is a need for an audit
regarding a potential violation of Applicable Law or the
Rules, Processor may withhold payment of amounts owed to
Merchant without penalty pending completion of the audit. If
it is determined that there has been a violation of
Applicable Law or the Rules relating to this Agreement,
Processor may withhold payment of amounts owed to Merchant
for a reasonable amount of time in an amount equal to the
costs, fees, and expenses incurred by Processor in
investigating and resolving the same and for any damages
incurred by Processor.
9.
CONFIDENTIALITY. Receiving Party will not use or access any Confidential
Information of Disclosing Party for any purpose outside the
scope of this Agreement, or disclose Confidential
Information to any third party except with Disclosing
Party's prior written consent. Receiving Party will protect
the confidentiality of Disclosing Party's Confidential
Information utilizing the same standard of care that it
employs to protect the confidentiality of its own
information of a similar nature (but in no event using less
than reasonable care). Receiving Party will promptly notify Disclosing Party if it
becomes aware of any actual or reasonably suspected breach
of the confidentiality of Disclosing Party's Confidential
Information. If Receiving Party is compelled by law to
disclose Confidential Information of Disclosing Party, it
will provide Disclosing Party with prior notice of such
compelled disclosure (to the extent legally permitted) and
reasonable assistance, at Disclosing Party's cost, if
Disclosing Party exercises efforts to contest the disclosure
or secure a protective order or other confidential treatment
therefor. The Parties acknowledge that any breach or
threatened breach of this Agreement involving an
unauthorized use or disclosure of Confidential Information
may result in irreparable harm for which damages would not
be an adequate remedy, and therefore, in addition to its
rights and remedies otherwise available at law, the
aggrieved Party will be entitled to seek injunctive or other
equitable relief, as appropriate. If a Party seeks any
equitable remedies, such Party will not be precluded or
prevented from seeking remedies at law, nor will such Party
be deemed to have made an election of remedies.
10.
REPRESENTATIONS AND WARRANTIES.
10.1.
Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is duly
organized, validly existing and in good standing as a legal
entity under the laws of its applicable jurisdiction; (ii)
the execution of this Agreement by its representative has
been duly authorized and is effective to bind the Party; and
(iii) the execution and delivery of, and the Party’s
performance under, this Agreement does not and will not
breach any agreement or other legal duty that said Party
owes to any third party.
10.2.
Additional Merchant Representation and Warranties. Merchant
represents and warrants to Processor at the time of
execution and with each Transaction processed hereunder:
10.2.1.
All information contained in the Application or any other
documents delivered to Processor in connection with this
Agreement is true and complete;
10.2.2.
Merchant will not submit any Transactions that are not in
compliance with this Agreement, Applicable Law, and the
Rules;
10.2.3.
Merchant has all licenses, if any, required to conduct its
business and is qualified to do business in every
jurisdiction where it is required to do so;
10.2.4.
There is no action, suit, or proceeding now pending or, to
Merchant’s knowledge, threatened by or against or affecting
Merchant which would substantially impair its right to carry
on its business as now conducted or adversely affect its
financial condition or operations;
10.2.5.
Merchant’s use of the Services does not violate or infringe
upon any third-party rights; and
10.2.6.
Merchant’s business and use of the Services complies with
the Documentation, Applicable Law, and the Rules.
11.
INDEMNIFICATION.
11.1.
By Finix.
Finix will defend, indemnify, and hold harmless Merchant
from and against any third party claims, damages, losses,
liabilities, costs, and expenses (including reasonable
attorneys’ fees) arising from any IP Claims; provided that
Finix will have no obligation to defend, indemnify, or hold
harmless Merchant from and against any IP Claim (i)
resulting from use of the Services or Finix Technology other
than as authorized by this Agreement; (ii) resulting from a
modification to the Finix Technology that was not made by
Finix; (iii) to the extent the IP Claim arises from or is
based on Merchant’s use of the Services or Finix Technology
with other products, services, or data not supplied by Finix
or its Affiliates; (iv) based on Merchant’s use of an old or
outdated version of the Services or Finix Technology
following an Update, if the infringement would have been
avoided had Merchant implemented said Update; (v) if
Merchant is in material breach of this Agreement; or (vi)
based on any Finix modifications made pursuant to
instructions, designs, specifications or any other
information provided by or on behalf of Merchant, if any.
Finix’s obligations to indemnify Merchant for IP Claims is
conditioned on Merchant giving prompt written notice of the
IP Claim to Finix; permitting Finix to retain sole control
of the investigation, defense or settlement of the IP Claim;
and using all reasonable efforts to mitigate any actual or
anticipated claims and providing Finix with cooperation and
assistance as Finix may reasonably request in connection
with the IP Claim.
If, as a result of an IP Claim or an injunction, Merchant
must stop using any portion of the Finix Technology, Finix
may at its expense and option either obtain for Merchant the
right to continue using the Finix Technology; replace the
applicable Finix Technology with a functionally equivalent,
non-infringing Finix Technology; or modify or remove the
applicable portion of the Finix Technology through an Update
so that it is non-infringing.
11.2.
By Merchant. Merchant agrees to indemnify Processor and its
affiliates, officers, directors, employees, and agents
against and to hold them harmless from any and all claims
and demands of any party arising from or based upon any
breach of this Agreement or act or omission of Merchant or
its employees, representatives, agents, or service providers
in connection with or arising out of (i) this Agreement;
(ii) Merchant’s obligations, responsibilities, or duties
pursuant to this Agreement; (iii) any Transactions which
Merchant submits to Processor; (iv) Merchant’s violation of
the Rules or any Applicable Law; or (v) any hacking,
infiltration, or compromise of Merchant’s systems or the
systems of Merchant’s representatives, agents, or service
providers. If Processor is made a party to any litigation,
proceeding, arbitration, bankruptcy proceeding, or other
legal process commenced by any third party, Merchant will
protect and hold Processor harmless from and with respect to
such litigation, proceeding, arbitration, bankruptcy
proceeding, or other legal process and will pay all costs,
expenses, and attorneys’ fees incurred or paid in connection
therewith, together with any judgments rendered.
12.
LIMITATIONS.
12.1.
Limitation of Liability. Finix will not accept responsibility or liability for
errors, acts, or failures to act by others, including, but
not limited to, agents, third-party suppliers of software,
equipment, or services; or banks, communication common
carriers, data processors, or clearinghouses through which
Transactions may be passed, originated, and/or authorized.
In any event, Finix’s cumulative liability to Merchant under
this Agreement, any of the Services Schedules, and any other
term incorporated by reference into this Agreement, whether
arising in contract, tort (including, without limitation,
negligence and strict liability), or otherwise, will not
exceed the lesser of $10,000 or an amount equal to the
aggregate of monthly net Fees paid by Merchant in the one
(1) month period prior to the month that the incident giving
rise to liability occurred. In no case will Merchant be
entitled to recover damages from Financial Institution.
12.2.
Limitation of Damages. IN NO EVENT WILL PROCESSOR BE LIABLE TO MERCHANT OR
MERCHANT’S AFFILIATES FOR SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION
OR LOSS OF USE, DATA, BUSINESS, OR PROFITS, WHETHER OR NOT
SUCH LOSS OR DAMAGES WERE FORESEEABLE OR PROCESSOR WAS
ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER
ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
12.3.
Disclaimer. PROCESSOR PROVIDES THE SERVICES AND FINIX TECHNOLOGY “AS
IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY STATED AS A
“WARRANTY” IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT
PERMITTED BY LAW, PROCESSOR DOES NOT MAKE ANY, AND PROCESSOR
SPECIFICALLY DISCLAIMS, ALL WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OR CONDITION OF MERCHANTABLE QUALITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, PROCESSOR DOES NOT
GUARANTEE OR WARRANT THAT THE SERVICES OR FINIX TECHNOLOGY
WILL BE UNINTERRUPTED OR ERROR-FREE.
13.
TAXES. Merchant agrees to pay all taxes and other charges imposed
by any Regulatory Authority on the services provided under
this Agreement. Merchant will verify its identity by providing Finix with a
tax identification number, such as a business number. If
Merchant fails to provide this information, Processor will
place a restriction on the provision of Services to Merchant
and may restrict the receipt of funds into Merchant’s
Settlement Account, or withhold a percentage of Settlement
Funds in order to satisfy any backup withholding
requirements. Finix may charge Merchant additional fees for
associated administrative costs.
If required under Applicable Law, Finix may perform backup
withholding by deducting and withholding income tax from
reportable Transactions if (i) Merchant fails to provide its
tax identification number; or (ii) Processor is notified
that the tax identification number (when matched with the
name) provided by Merchant is incorrect. Accordingly, to
avoid backup withholding, Merchant must provide Finix with
the correct name and tax identification number that it uses
when filing its tax return that reflects the Transactions
under this Agreement. Processor will not be liable for any
damages arising out of or relating to this
Section 13 which resulted from Merchant providing
incorrect information.
14.
GENERAL PROVISIONS.
14.1.
Governing Law. This Agreement will be governed and construed in
accordance with and pursuant to the law of the Province of
Ontario, and the applicable federal laws of Canada.
14.2.
Complaints. Any complaints with respect to Finix may be directed by
email to support@finix.com
or by phone at
1-415-888-5080. If Merchant has a complaint regarding Finix’s compliance
with the
Code of Conduct for the Credit and Debit Card Industry
in Canada
(the “Code of Conduct”), Merchant may submit a Code of Conduct complaint form
available at http://finix.com/terms-and-policies/complaint. Finix will respond to all Code of Conduct complaints in
accordance with its Code of Conduct complaint procedures, a
summary of which is made available in the above link. For
any and all other complaints with respect of the services
that do not involve the Code of Conduct and its contents, as
may be amended from time to time, Merchant should contact
the representative at Finix who Merchant regularly deals
with, or Partner Platform (if applicable), to discuss the
complaint. If that person is unable to resolve the matter to
Merchant’s satisfaction, ask to speak with the manager or
team leader of the business area. Any non-Code of Conduct
complaint not resolved using the above process should be
forwarded to the legal department of Finix.
14.3.
Electronic Communications. Merchant consents to (a) receive communications
electronically; and (b) the use of electronic signatures.
Merchant agrees that communications between Merchant and
Processor that are received, sent, or signed electronically
will have the same legal effect as a signed physical
document.
14.4.
Updates and Modifications to Services. From time to time, Finix may release Updates through the
Finix Dashboard or any other means that Finix may choose.
Such Updates will become part of the Services or Finix
Technology, as applicable, and subject to this Agreement.
Finix will have no obligation under this Agreement or
otherwise to provide any such Updates. If an Update will
cause a material adverse change to, depreciation of, or
removal of functionality from the Services or Finix
Technology used by Merchant, Finix will use commercially
reasonable efforts to give Merchant prior notice of the
Update. Merchant agrees to fully install all Updates
released within thirty (30) days of Finix making an Update
available to Merchant. Merchant understands that Finix may,
in its sole discretion, cease supporting old versions or
releases of the Services or Finix Technology at any time
after an Update.
14.5.
Subcontracting. Processor may subcontract its obligations under this
Agreement to third party service providers without notice to
Merchant.
14.6.
Privacy Policy; Use of Processing Data. Finix’s Privacy Policy, which is available through the
Finix Website or the Finix Dashboard, and Financial
Institution’s Privacy Policy, found at Privacy Policy | PTC,
explains how and for what purposes Processor collects,
uses, retains, discloses and safeguards Processing Data
that Merchant provides to Processor. Merchant consents
to the collection, use, and disclosure of personal
information by Finix and Financial Institution in
accordance with their respective privacy policies.
Merchant acknowledges that Processor and its Affiliates
will receive and handle Processing Data in connection
with Processor’s performance under this Agreement.
Merchant further acknowledges, agrees, and consents to
the right of Processor and its Affiliates to receive,
access, process, transmit, store, and create derivative
works of the Processing Data: (i) as reasonably required
for Processor to perform its respective obligations
hereunder; (ii) to monitor and report fraud or other
unlawful or suspicious activities by Customers or any
third party; (iii) to develop and improve Processor’s
products and services; (iv) as required to comply with
court order, government investigation, industry
self-regulatory guidelines, contractual requirements
with financial partners, or other legal requirements and
operations of Applicable Law or the Rules; and (v) in
furtherance of its other business operations and
commercial purposes. Merchant permits Processor and its
Affiliates to share Processing Data with the Networks,
between Financial Institution and Finix, and their
respective Affiliates, and with Partner Platform, as
applicable, and Merchant consents to the rights of each
of the foregoing to use the same without restriction for
marketing, analysis, transactions or relationship
communication, and any other lawful business purpose.
Separate from and in addition to any other
representation or warranty herein contained, Merchant
represents and warrants that: (a) it possesses all
necessary rights, authorizations, licenses, and consents
to provide Processing Data to Processor and its
Affiliates (and for Processor or its Affiliates to
subsequently use and access such Processing Data) as set
forth herein, including without limitation such
authorizations and consents required by Applicable Law
and the Rules governing data privacy, information
security, and consumer protection; and (b) the
Processing Data does not infringe, misappropriate, or
otherwise violate the personal or proprietary rights of
any third party.
14.7.
Notices.
14.7.1.
Notices to Finix. Except with respect to Platform Merchants, Merchant will
provide Finix with all notices, requests, or other
communications required by it hereunder in electronic form
by delivering them via electronic mail to legal@finixpayments.com
or through the Finix Dashboard. Finix reserves the right to,
from time to time, update or change the electronic mail
address it uses to receive Merchant’s notices, requests, or
other communications by notifying Merchant of the changed
address. Notices sent by Merchant will be deemed to have
been properly given in “writing” when sent through
electronic mail to the correct Finix address or Partner
Platform, as applicable, with proof of delivery.
14.7.2.
Notices to Merchant. Except with respect to Platform Merchants, Finix may
provide Merchant with all notices, requests, or other
communications required by Processor hereunder by: (i)
delivering them through electronic mail to the electronic
mail address listed in Merchant’s Application; (ii) posting
to the Finix Website; (iii) posting or delivering them on or
through the Finix Dashboard; or (iv) delivering them to the
Merchant’s physical address, as listed in Merchant’s
Application, by certified mail or a nationally recognized
overnight delivery service. Finix reserves the right but
assumes no obligation to provide certain notices hereunder
in paper format. To the fullest extent permitted by
Applicable Law, all notices or other communications
regarding the Services may be provided to Merchant
electronically, and Merchant agrees to receive all
communications from Processor in electronic form. All
communications delivered by Finix to Merchant or Partner
Platform, as applicable, in either electronic or paper
format will be considered to be in “writing,” and to have
been received no later than five (5) Business Days after
posting or dissemination, whether or not Merchant has
received or retrieved the communication.
14.8.
Modifications to Agreement. Processor may modify or amend any provision of this
Agreement for any reason and at any time, to the extent
permitted by the Code of Conduct, including, without
limitation, the Code of Conduct requirement that Merchant
must provide its express consent to accept a new payment
processing product or service. Except as expressly stated
otherwise in this Agreement or the Code of Conduct, such
modifications and amendments will become effective as of the
date the amended Agreement is posted to the Finix Website or
the Finix Dashboard. Merchant is responsible for regularly
checking the Finix Website or the Finix Dashboard for
updates to this Agreement. If Processor modifies or amends
this Agreement in a way that reduces Merchant’s rights or
increases Merchant’s responsibilities under this Agreement,
Finix will give electronic written notice to Merchant of the
changes. In such cases, the modifications or amendments will
become effective as of the date stated in the notice. By
continuing to use the Services after the effective date of
any modifications or amendments to this Agreement, Merchant
agrees to be bound by the amended Agreement; provided that
if Merchant does not wish to agree to such modifications or
amendments, Merchant may immediately terminate its use of
the Services and this Agreement without agreeing to the
changes by providing Finix with notice of such prior to the
effective date of the applicable modifications or
amendments. Merchant
may not modify or amend any provision of this Agreement.
14.9.
Dispute Resolution, Jury Waiver, and Class Action
Waiver.
14.9.1.
Scope. Any and all claims, based on whatever the cause, law,
rule, or regulation, whether statutory or common law,
and however characterized, whether existing now, in the
past or in the future, as to which the Parties or any of
their subsidiaries, successors, or Affiliates may be
adversarial Parties, and whether arising out of this
Agreement or from any other cause or action, will be
exclusively and finally resolved by a single arbitrator
through binding arbitration administered by ICDR Canada
(“ICDR”) in
accordance with its Canadian Arbitration Rules (the “ICDR Rules”). For purposes of this Section, the term Parties and
Merchant will in both cases include Merchant’s
principals.
14.9.2.
Place of Arbitration. The place of arbitration will be in Toronto, Ontario,
Canada, and each of the Parties waives any objection it may
now or hereafter have to venue or to convenience of forum,
and agrees that all claims in respect of any such legal
proceeding will be heard and determined only pursuant to the
ICDR Rules, and agrees not to bring any legal proceeding
arising out of or relating to this Agreement in any court or
before any other arbitral body. Jurisdictional and
arbitrability disputes, including disputes over the
formation, existence, validity, interpretation, or scope of
this Agreement, or regarding the identity of the proper
Parties, will be submitted to and ruled on by the
arbitrator. The arbitrator has the authority to determine
jurisdiction and arbitrability issues as a preliminary
matter. The arbitrator will be bound by the provisions of
this Agreement and base the award on applicable law and
judicial precedent. Upon rendering a decision, the
arbitrator will state in writing the basis for the decision,
including the findings of fact and conclusions of law upon
which the decision is based.
14.9.3.
Jury Trial Waiver; Class Action Waiver. To the extent permitted by law, the Parties hereby
knowingly, voluntarily, and intentionally waive any rights
either of them may have to a trial by jury in respect of any
litigation based on, arising out of, or in connection with
this Agreement. To the extent permitted by law, Merchant
covenants that any dispute arising out of or in connection
with this Agreement will be conducted only on an individual
basis and not in a class, consolidated, or representative
action, and that Merchant will not be a party to any class
action against Processor. The Parties agree that any such
action, if filed, will be dismissed upon application and
will be referred for arbitration hereunder with costs and
attorneys’ fees to the prevailing Party. ANY ARBITRATION
UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS,
AND NEITHER PARTY MAY PARTICIPATE IN ANY CLASS-WIDE
ARBITRATION WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT, OR OTHERWISE ATTEMPT TO CONSOLIDATE ARBITRATION
CONDUCTED PURSUANT TO THIS PARAGRAPH WITH ANY OTHER
ARBITRATIONS OR SIMILAR PROCEEDINGS. EACH PARTY, AFTER
CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT IN FAVOR OF THE ARBITRATION PROCEDURES SET
FORTH HEREIN. Notwithstanding the foregoing, either Party
may bring a claim for preliminary or temporary injunctive
relief before any court of competent jurisdiction in order
to prevent, remedy, or mitigate irreparable harm caused to
such Party by the present or ongoing breach of Agreement by
the other Party.
14.9.4.
Finality and Fees. The Parties will share the costs, fees, and expenses of
arbitrator and/or arbitration company equally, except that
the Party initiating such arbitration will be responsible
for all filing fees in connection therewith. The
arbitrator’s award, including awards of attorneys’ fees,
costs, and expenses, will bind the Parties, and may be
entered as a judgment in any court of competent
jurisdiction. The Parties hereby agree that any Superior
Court in Ontario, Canada, is a court of competent
jurisdiction for this purpose. In addition to finality of
the award or decision, the award or decision will be
eliminated from any process, petition to, or motion of
appeal except as permitted by applicable law. Each Party
hereby waives, and agrees not to assert, by way of motion,
as a defense, or otherwise, in any such suit, action, or
proceeding, any claim that it is not subject personally to
the jurisdiction identified herein, that its property is
exempt or immune from attachment or execution, that the
suit, action, or proceeding is brought in an inconvenient
forum, that the venue of the suit, action, or proceeding is
improper or that this Agreement or the subject matter hereof
may not be enforced. Each Party hereto submits to the
exclusive jurisdiction of the Superior Court of Ontario, for
any action to compel or stay arbitration, for any dispute
regarding the arbitrability of a claim relating to or
arising under this Agreement or to obtain injunctive relief
to enforce this Agreement (jurisdictional, venue, and
inconvenient forum objections to which are hereby waived by
all parties hereto).
14.9.5.
Covenant Not to Sue. The Parties
covenant that under no conditions will any Party or any
Affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any
forum other than before the arbitrator.
14.10.
Entire Agreement: Assignability. This Agreement expresses the entire understanding between
Merchant and Processor with respect to its subject matter.
This Agreement will be binding upon Merchant and Processor
and their respective heirs, successors, and assigns. Except
as expressly permitted under the terms of this Agreement,
Merchant may not assign this Agreement or any of its rights,
obligations, or responsibilities under this Agreement
without Processor’s express prior written consent, and any
purported assignment without such consent will be void. If
Merchant nevertheless assigns this Agreement without such
consent of Processor, both Merchant and the assignee will
remain liable, and Merchant will be held personally liable
if such assignee incurs Chargebacks, Retrieval Requests, EFT
rejects, losses, fines or any other liabilities under this
Agreement. Either of Finix or Financial Institution may
assign its rights, obligations, or responsibilities under
this Agreement at any time.
14.11.
Force Majeure. Processor will be excused from performing any of its
obligations under this Agreement that are prevented or
delayed by any occurrence not within Processor’s control
including, but not limited to, strikes or other labor
matters, destruction of or damage to any building, natural
disasters, accidents, war, riots, emergency conditions,
interruption of transmission or communications facilities,
equipment failure, or any regulation, rule, law, ordinance
or order of any Regulatory Authority.
14.12.
Waiver; Severability. Failure by Processor to enforce one or more of the
provisions of this Agreement will not constitute a waiver of
the right to enforce the same or other provision in the
future. The waiving Party must sign all waivers. If any
provision of this Agreement is illegal or unenforceable, the
invalidity of that provision will not affect any of the
remaining provisions and this Agreement will be construed as
if the illegal provision is not contained in this Agreement.
Merchant is responsible for its employees’ actions while in
its employ. The Parties do not intend to confer any benefits
on any person or entity other than Merchant and Processor.
14.13.
Language. It is the express will of the Parties that this Agreement
and all related documents, including notices and other
communications, be drawn up in the English language only. Les parties ont exprimé la volonté que cette convention
et tous les documents s’y rattachant, y compris les avis
et les autres communications, soient rédigés et signés
en anglais seulement.
15.
DEFINITIONS.
“ACSS” means
the Automated Clearing Settlement System.
“Affiliate”
means, with respect to a Party, any other person that
controls, is under common control with, or is controlled by,
such Party. For purposes of this Agreement, “control” means
possessing, directly or indirectly, the power to direct or
cause the direction of the management, policies or
operations of an entity, whether through ownership of voting
securities, by contract or otherwise.
“Applicable Law” means any and
all applicable federal, provincial, territorial, and local
laws, statutes, regulations, rules, codes, ordinances, court
orders, and regulatory guidance that govern or affect this
Agreement or the subject matter hereof, including, but not
limited to, the Code of Conduct for the Credit and Debit
Card Industry in Canada, anti-money laundering and economic
sanctions laws, consumer protection laws, data security, and
privacy protection laws.
“Application” means Merchant’s submission of
a request for Services through the Finix Website, Finix
Dashboard, Finix-provided URL link, or through a Partner
Platform, and includes all information submitted by Merchant
in connection with such request.
“Authorization”
means approval by, or on behalf of, the Issuing Bank or
Network to validate a Transaction for a Merchant. With
respect to Card Transactions, an Authorization indicates
only the availability of the Cardholder’s credit limit at
the time the Authorization is requested and is not a
guarantee that a Transaction is valid.
“Beneficial Owner” means a person who, directly or
indirectly, either (i) exercises substantial control over
Merchant or (ii) owns or controls at least 25% of Merchant’s
voting securities or interests.
“Business Day”
means any day on which Financial Institution
is open for business, other than Saturdays, Sundays, or
banking holidays.
“Card” means
any valid account or evidence of an account issued to a
Cardholder under license from a Card Brand or any
representative or member of a Card Brand that Merchant
accepts as payment from Cardholders for goods, charitable
donations or services. Cards include, but are not limited
to, credit cards, debit cards, or prepaid debit cards in the
form issued under a license from a Card brand.
“Cardholder”
means the person to whom the Card was issued, whose name may
be embossed on the Card, and any authorized user of such
Card.
“Card Brand”
means (i) MasterCard Canada Inc. (“MasterCard”), Visa Canada (“Visa”), DFS Services LLC d/b/a Discover Global Network (“Discover”) (including Diners Club International and any card issuer
of payment cards processed and settled through the Discover
network), Amex Bank of Canada (“American Express”) each including applicable subsidiaries; and (ii) Debit
Networks supported by Processor.
“Card Brand Core Fee” means any amount set and/or charged by a Card Brand, paid
or payable by Processor for the acceptance or processing of
Card transactions, including but not limited to,
interchange, dues, and assessments, but excluding Other Card
Brand Fees.
“Card Transaction” means a Transaction initiated using a Card from a Card
Brand.
“Change of Control”
means (i) an event in which any third party or group acting
together, directly or indirectly, acquires or becomes the
Beneficial Owner of, more than 50% of Merchant’s voting
securities or interests; (ii) Merchant’s merger with one or
more third parties; (iii) Merchant’s sale, lease, transfer
or other disposal of all or substantially all of its assets;
or (iv) entering into of any transaction or arrangement that
would have the same or similar effect as a transaction
referred to in the foregoing; but, does not include an
initial public offering or listing.
“Card Processing Services” means services whereby Processor provides Merchant with
the ability to acquire, authorize, process, and settle
transactions undertaken by Cardholders at Merchant’s
location (including ecommerce) in Canada.
“Chargeback”
means a reversal of a Transaction previously presented to
Processor by Merchant pursuant to the Rules (which term may
include “disputes” as defined by the Rules).
“Confidential Information”
means all sensitive, nonpublic, and/or proprietary
information of a Party (“Disclosing Party”) disclosed
to the other Party (“Receiving Party”), whether
orally or in writing, that is designated as confidential or
that reasonably should be understood to be confidential
given the nature of the information and the circumstances of
disclosure, including the terms and conditions of this
Agreement (including pricing and other terms reflected in
the Services Schedules), business and marketing plans,
technology and technical information, product designs, and
business processes. Without limiting the foregoing, all
Documentation, and all Finix Technology are the Confidential
Information of Finix and the existence and terms of this
Agreement are the Confidential Information of each Party;
provided, however, that each Party may confidentially
disclose the terms and conditions of this Agreement to any
actual or potential bona fide investors, acquirers or
lenders who have agreed to be bound by confidentiality
obligations with respect thereto at least as stringent as
those set forth hereunder. Confidential Information will not
include any information that: (i) is or becomes generally
known to the public without breach of any obligation owed to
Disclosing Party; (ii) was rightfully known to Receiving
Party prior to its disclosure by Disclosing Party without
breach of any obligation owed to Disclosing Party; (iii) was
independently developed by Receiving Party without use of or
reference to any Confidential Information; or (iv) is
rightfully received from a third party without breach of any
obligation owed to Disclosing Party. For avoidance of doubt,
Confidential Information does not include Processing Data.
“Customer”
means a person who initiates a Transaction to purchase
goods, services, reservations, or other items from Merchant.
“Customer Data”
means (i) with respect to Card Transactions, information
related to a Cardholder’s Card, which is obtained by
Merchant from the Cardholder’s Card, or directly from the
Cardholder in connection with his or her use of a Card
(e.g., a security code, a PIN number, credit limits, account
balances, or the Cardholder’s postal code when provided as
part of an address verification system). Without limiting
the foregoing, such information may include the Card account
number and expiration date, the Cardholder’s name or date of
birth, PIN data, security code data (such as CVV2 and CVC2),
and any data read, scanned, imprinted, or otherwise obtained
from the Card, whether printed thereon, or magnetically,
electronically, or otherwise stored thereon; (ii) with
respect to EFT Transactions, personal information such as a
Customer’s bank account numbers, and bank routing numbers;
and (iii) with respect to Disbursements the Merchant Payee’s
account numbers and routing numbers.
“CVV2” means
card verification value.
“Debit Networks” means those debit card networks
accepted by Processor, including but not limited to the
Interac Association.
“Disbursement Services” has the meaning set forth in the Disbursement Services
Schedule of this Agreement.
“Disbursement”
means an EFT Transaction or an intrabank transfer in which
Merchant instructs Processor to send funds to a Merchant
Payee from Settlement Funds.
“Disbursement Services” means the services provided by Processor that enable
Merchants to make Disbursements to designated Merchant
Payees from Settlement Funds.
“Documentation”
means the user manuals, training materials, product
descriptions and specifications and other printed
information relating to the Finix Technology provided by
Finix (either directly or through the Finix Website or Finix
Dashboard), as updated from time to time.
“EFT” means an
electronic Fund Transfer processed through the ACSS and
subject to the Payments Canada Rules.
“EFT Transaction” means a Transaction conducted by EFT.
“Fee(s)” means
any and all of the fees, charges, or costs charged to
Merchant as specified in the Application, the Finix Website,
the Finix Dashboard, or elsewhere in this Agreement for any
of the services provided by Processor under this Agreement,
including, but not limited to, the fees, liabilities,
charges, costs, or amounts owed for the Services.
“Fee Dispute Notice” means a written notice sent by Merchant to Finix regarding the
disputed amount of an invoice, which notice will include
documentation supporting the alleged billing error.
“Feedback” means ideas, suggestions, comments,
observations or other input that Merchant provides to Finix
regarding the Services or Finix Technology.
“Finix Dashboard” has the meaning set forth in
Section 3.1 of the General Terms.
“Finix Technology” means the Finix Dashboard,
Finix’s payment processing platform for online e-commerce
transactions, and all Finix technology used by Merchant for
managing Card Transactions, EFT Transactions, and
Disbursements together with all programs, tools,
applications, application programming interfaces
(“APIs”), all Documentation, and all other software
components provided by Finix hereunder in connection with
the Services.
“Finix Website” means https://finix.com/, and all sub-domains therein.
“Fund Transfer Services” means certain services whereby Processor provides
Merchants with the ability to originate credit and debit
entries in accordance with the Payments Canada Rules.
“ICDR” and “ICDR Rules” has the meaning set
forth in Section 14.9.1
of the General Terms.
“IP Claim” means a claim, suit, action, or
proceeding brought against Merchant by a third party that is
based on an allegation that the Finix Technology, or
Merchant’s use thereof, infringes or misappropriates a third
party’s Canada (or Berne Convention signatory country)
intellectual property rights.
“Issuing Bank”
means the bank which has issued a Card to a Cardholder.
“Merchant Account Number” or “Merchant Identification Number” or “MID”
means the number assigned and issued by Finix to Merchant,
if and only if Merchant is approved and this Agreement is
accepted by Processor, that numerically identifies Merchant
to Processor for accounting, billing, customer service, and
other related purposes in connection with the Services.
Issuance of the approved Merchant Account Number to Merchant
will evidence the acceptance and approval of Merchant for
the Services under this Agreement.
“Merchant Payee” means a person or entity to which Merchant owes payment
and requests that Processor make a payment to through the
Disbursement Services.
“Network” means
the Card Brands and the ACSS, collectively.
“Other Card Brand Fee” means any amount paid or
payable by Processor for optional Card processing services
provided by a Card Brand or resulting from Card processing
activities that fail to comply with Applicable Law and/or
the Rules.
“Partner Platform” means an online or software
platform, marketplace or service provider that provides
services to Platform Merchants and provides Platform
Merchants with access to the Services pursuant to this
Agreement.
“Partner Platform Agreement” means the agreement
between the Partner Platform and the Platform Merchant
governing the Partner Platform’s provisions of services to
the Platform Merchant, including those services for
accessing the Services under this Agreement.
“Pass-Through Costs” has the meaning set forth in
Section 2.6 of the General Terms.
“Payments Canada” means
the
organization that operates the payment clearing and
settlement system in Canada, legally known as the Canadian
Payments Association.
“Payments Canada Rules” means the rules, standards and procedure documents
established by Payments Canada, as amended from time to
time.
“PIN” means a personal identification number.
“PIN Debit Card” means a card validly issued by a
Debit Network requiring the entry of a PIN.
“Platform Fees” means any and all of the fees,
charges, or costs charged to a Platform Merchant by a
Partner Platform, as specified in a Partner Platform
Agreement.
“Platform Merchant” means a Merchant that accesses
the Services through a Partner Platform.
“Prohibited Business” means the business types listed as prohibited industries
in the Documentation, as may be updated and communicated to Merchant from
time to time.
“Processing Data” means the data and information
provided to or received by Processor pursuant to this
Agreement, whether directly from Merchant or through a
Partner Platform or other third parties, which Processor
uses in connection with its performance of its rights and
obligations under this Agreement, including, without
limitation, all Customer Data and Merchant information
collected by, or given to, Processor pursuant to the terms
of this Agreement.
“Receiver”
means a person who has authorized an originator to initiate
a credit entry or debit entry to the Receiver’s account.
“Recurring Transaction” means a Card Transaction or EFT Transaction whereby
Merchant periodically charges a Cardholder’s Card or submits
entries at substantially regular intervals as payment for
recurring goods, charitable donations or services (e.g.,
monthly insurance premiums, yearly subscriptions, annual
membership fees, etc.) which are to be delivered or
performed periodically without further affirmative action by
the Cardholder or Receiver.
“Regulatory Authority” means, as the context requires, any federal, provincial,
territorial, or local government or any agency, board,
commission, court, department, or division thereof, having
jurisdiction, supervisory authority, or enforcement powers
over any Party to this Agreement, but which does not include
any Card Brand. Such Regulatory Authorities include, but are
not limited to, the Financial Consumer Agency of Canada.
“Reserve Account” means an account or accounts established at Financial
Institution in the manner it proscribes and managed by Finix
for the deposit of funds received from Merchant pursuant to
this Agreement as collateral to protect Processor against
actual or contingent liability or losses that might be
incurred by Processor should Merchant be unable or fail to
pay Chargebacks, Disbursements, adjustments, fees,
penalties, and other charges and obligations due to
Processor, any Network, or government agency. All Reserve
Accounts will be held in a pooled custodial account in
Financial Institution’s name or as otherwise determined by
the Parties.
“Retrieval Request” means a request for information by a Cardholder or Card
Brand relating to a claim or complaint concerning a
Transaction.
“Rules” means
the written rules and regulations, operating rules, system
manuals, procedures and requirements, releases and
interpretations thereof, and other requirements (whether
contractual or otherwise) imposed or adopted by any Network,
including the PCI Security Standards Council, LLC, American
Express Data Security Requirements (DSR), and the American
Express Data Security Operating Policy (DSOP), and Payments
Canada, as the same may be amended from time to time.
“Sales Draft” has the meaning set forth in
Section 4 of the Card Processing Services
Schedule.
“Services”
means the collective activities undertaken by Processor to
provide, as applicable, (i) the Card Processing Services;
(ii) the Fund Transfer Services; (iii) the Disbursement
Services; and (iv) all other activities necessary for
Processor to perform the functions required by this
Agreement.
“Services Schedules” means terms in this Agreement
that govern particular Services and are set forth in a
separate schedule.
“Settlement Account” means the business chequing account(s) or other
acceptable deposit account(s) that Merchant maintains at a
financial institution approved by Processor for credits and
debits related to Transactions, Chargebacks, Fees, and any
fines or Fees assessed by the Networks or other governmental
agency or entity having authority.
“Settlement Funds” means funds received by Financial Institution
from Networks for Merchant Transactions submitted to
Processor through the Services.
“Settlement Payout Schedule” means the schedule(s)
selected by Merchant or Partner Platform and approved by
Finix for settling Transactions to Merchant’s Settlement
Account, and which may include same-day settlement and
similar faster payout services to the extent offered by
Processor. Processor is not responsible for any delays
impacting a Settlement Payout Schedule caused by (i) the
unavailability of a Network, telecommunications provider, or
internet service provider; (ii) incorrect payout information
provided to Processor; (iii) Merchant’s equipment, software,
or other technology; or (iv) a Force Majeure Event.
“Suspicious Activity” means (i) unusual or suspicious activity, including,
without limitation, unauthorized Transactions, suspected or
actual fraud, and/or breach or default of this Agreement, or
(ii) during any monthly period for any one of Merchant’s
MIDs: (a) the dollar amount or number of Chargebacks and
Retrieval Requests exceeds 1% of the average monthly dollar
amount or number of Card Transactions; (b) sales activity
that exceeds by 25% or more the dollar volume indicated on
the Application; (c) the dollar amount of returns equals 3%
of the average monthly dollar amount of Card Transactions
(d) the rate at which EFT debit entries are being returned
for administrative reasons equals or exceeds 3% during any
sixty (60) day period; (e) the rate at which EFT debit
entries are being returned on the basis that they were
unauthorized equals or exceeds 0.5% during any sixty (60)
day period; or (f) the rate at which EFT debit entries are
being returned, regardless of the reason, equals or exceeds
15% during any sixty (60) day period.
“Term” has the meaning set forth in
Section 7.1 of the General Terms.
“Transaction”
means any payment transaction processed under this
Agreement, and includes the Authorization, settlement, and
if applicable, disputes, Chargebacks, refunds and reversals
with respect to any payment transaction. The term
Transaction includes, as applicable, all types of EFT
Transactions, Card Transactions, and Disbursements.
“Update” means any upgrades, patches, enhancements,
or fixes to the Services or Finix Technology that requires
Merchant to take some action to install or implement.
Card Processing Services Schedule
1.
ACCEPTANCE OF CARDS. Merchant agrees to honour all valid Cards it elects to
accept pursuant to the Agreement, without discrimination,
and to submit all sales and credits for Card Transactions to
Processor according to the terms of the Agreement; provided
that Merchant may choose to accept only credit or only debit
payments from a Network, without having to use the same
Network for both credit and debit payments. Merchant agrees
to properly obtain an Authorization code for the total
amount of the Card Transaction and will record the
Authorization code on the Transaction data prior to
completing the Transaction. Processor reserves the right to
refuse to process any Card Transaction presented by Merchant
that does not include a proper Authorization. For in-person
purchases, Merchant will use reasonable and peaceful means
to recover any Card if: (i) Merchant is advised by Finix or
the Issuing Bank to retain it; or (ii) Merchant has
reasonable grounds to believe the Card is counterfeit,
fraudulent, stolen, or not authorized by the Cardholder.
2.
DEBIT NETWORKS.
Debit Networks may be added or removed from time to time by
Processor in its sole discretion. Merchant shall display the
logos of the Debit Networks wherever any other Card Brand
marks are displayed. The Debit Network used to process a
Transaction will depend on the availability of the network
at the time of the Transaction, whether a particular Card is
enabled for a particular Network, and the routing
requirements established by the Networks. Processor may use
any Debit Network available to Processor for a given
transaction. Finix will provide Merchant with a copy of the
applicable rules and regulations of the Interac Association,
which will be considered Finix’s Confidential Information
hereunder.
3.
AUTHORIZATION. Merchant will obtain prior Authorization for the total
amount of a Card Transaction via electronic terminal,
gateway, or other compliant and certified device before
completing any Card Transaction, and Merchant will not
process any Card Transaction that has not been authorized by
the Cardholder. Merchant will follow all instructions
received during the Authorization process. Merchant may
complete only the Card Transaction authorized.
Authorizations are not a guarantee of acceptance or payment
of the Sales Draft. Authorizations do not waive any
provisions of this Agreement or otherwise validate a
fraudulent Card Transaction or a Card Transaction involving
the use of an expired or otherwise invalid Card.
4.
SALES DRAFTS. Merchant will obtain evidence of a Cardholder’s purchase
of goods or services using the form, whether paper or
electronic, required by Processor or the Rules (“Sales Draft”). Each Sales Draft will be legibly imprinted with: (i)
Merchant’s name, identification number, and city and state;
(ii) the information embossed on the Card presented by the
Cardholder (either electronically or manually); (iii) the
date of the Card Transaction; (iv) a brief description of
the goods or services sold; (v) the authorization number;
(vi) the total amount of the sale (including any applicable
taxes) or credit Transaction; and (vii) adjacent to the
signature line, a notation that all sales are final, if
applicable. Merchant will not prepare more than one Sales
Draft for a single sale or for a single item and shall
include all items or good and services purchased in a single
Transaction in the total amount on a single Sales Draft
except as may be otherwise permitted under the Rules.
Merchant will request that each Cardholder sign for all Card
Transactions greater than $25.00 when the Cardholder is
present. Merchant will provide a complete and legible copy
of the Sales Draft or credit voucher to the Cardholder at
the time of the Card Transaction. If Merchant uses an
electronic terminal to print Sales Drafts, the account
number must be truncated so that only the last 4 digits of
the account number appear on the Cardholder copy of the
Sales Draft. The expiration date must be suppressed on
receipts provided to Cardholders. Merchant will retain in a
secure and confidential manner original or complete and
legible copies of each Sales Draft for at least two (2)
years or longer if required by Applicable Law or the Rules.
Merchant will render all materials containing Cardholder
account information unreadable prior to discarding. If Finix
requests a copy of a Sales Draft or other Card Transaction
information, Merchant will provide it within 24 hours
following the request.
5.
RESTRICTIONS.
5.1.
Except where expressly permitted by Applicable Law or the
Rules, Merchant will not (i) set a dollar amount above or
below which Merchant refuses to honour otherwise valid
Cards; (ii) engage in any practice that unfavorably
discriminates against or provides unequal treatment of any
Card Brand; (iii) require the Cardholder to pay the Fees
payable by Merchant under this Agreement; (iv) issue refunds
for Transactions by cash or cash equivalent (e.g., cheque);
(v) submit a single Transaction in multiple lower value
Transactions; (vi) refuse to honour an otherwise valid Card;
(vii) accept Cardholder payments for previous charges
incurred at the Merchant location; (viii) impose any
surcharge or convenience fee on a Transaction; (ix) accept
Cards for the sale of casino gaming chips, money orders,
opening deposits on financial or other accounts, wire
transfer money orders, the issuance of scrip or the like;
(x) require a Cardholder, as a condition of honouring a
Card, to sign a statement that waives the Cardholder's
rights to dispute the Transaction with the Card Brand; (xi)
fail to disclose to any Cardholder the name and location of
Merchant; (xii) require a Cardholder to complete a postcard
or similar device that includes any of the following in
plain view when mailed: Cardholder account number, Card
expiration date, signature or any other Card account data;
(xiii) disburse funds in the form of travelers cheques, if
the sole purpose is to allow the Cardholder to make a cash
purchase of goods and services from Merchant; (xiv) accept
payments for (a) collecting or refinancing debt that has
been deemed uncollectible by Merchant, (b) previous Card
charges, or (c) Transactions that represent collection of a
dishonoured cheque; (xv) add any tax to Transactions unless
required by Applicable Law; or (xvi) request or use account
numbers for any purpose other than as payment for goods or
services. Notwithstanding the foregoing, pursuant to the
Code of Conduct, Merchant will be allowed to provide
discounts for different methods of payment (e.g. cash, debit
card, credit card) and will also be allowed to provide
differential discounts among different Networks; provided
that any such discounts must be clearly marked at the point
of sale.
5.2.
Merchant will not accept any cash payments from Cardholders
for charges included on a Card Transaction. Merchant will
not make any cash disbursements or cash advances to a
Cardholder as part of a Card Transaction, except as
permitted by Section 8.2. Merchant will not deposit
any Transaction for the purpose of obtaining or providing a
cash advance either on Merchant’s Card or the Card of any
other party. Merchant will not submit (i) any Transaction previously
submitted to Processor; (ii) any Transaction that
Merchant knows or should have known to be fraudulent or
not authorized by the Cardholder; (iii) any Transaction
that results from a transaction outside of Merchant's
normal course of business; (iv) any Transaction that
results from a transaction not involving Merchant or not
originated as the result of an act between Merchant and
a Cardholder; (v) any Transactions that was previously
disputed and subsequently returned to Merchant; or (vi)
any Transaction that is illegal or that Merchant knows
or should have known was illegal.
5.3.
Merchant agrees that it will not submit Transactions in
connection with the sales of goods or services for future
delivery to Customers or custom-made goods without the prior
approval of Finix. If Merchant is so approved for future
delivery, Merchant agrees to maintain operations, finances,
and capital sufficient to provide for the delivery of such
goods and services at the agreed-upon future date, without
reliance upon any proceeds resulting from Transactions
previously submitted for processing under this Agreement.
Processor reserves the right to refuse to process any
Transaction presented by Merchant if Processor reasonably
believes that the Transaction may be uncollectible from the
Cardholder or was prepared in violation of any provision of
this Agreement, Applicable Law, or the Rules.
5.4.
If made available by Finix, Finix will provide Merchant the
account updater services provided by the Card Brands or
similar services (which may involve use of Network tokens)
in connection with processing Cards. These services enable
Issuing Banks or Networks to supply the most current
Cardholder information to Canadian acquirers and
Canadian-acquired merchants. In providing this service,
Finix will obtain, on Merchant’s behalf, applicable updated
Cardholder Data of eligible Cards from participating Issuing
Banks and other third-party sources with respect to eligible
Card Transactions. The account updater services will be used
to support Recurring Transactions and other account-on-file
functions.
6.
DATA SECURITY; SOFTWARE.
6.1.
Merchant will comply at all times with the Payment Card
Industry Data Security Standard (“PCI DSS”) and any other security standards required by the Card
Brands, including any subsequent updates thereto. Merchant
will ensure that its service providers with access to
Customer Data comply, and are able to demonstrate
compliance, with the PCI DSS and Card Brand security
requirements, including any subsequent updates.
6.2.
Merchant will retain in a secure and confidential manner
original, complete, and legible copies of each Transaction
for at least two (2) years or longer if required by law or
the Rules. Merchant will render all materials containing
Customer Data unreadable prior to discarding.
6.3.
Merchant will store Transaction data in an area limited to
selected personnel, and when record-retention requirements
have been met, Merchant will destroy the records so that
Transaction data is rendered unreadable.
6.4.
Merchant will not provide Customer Data to anyone except
Processor, Card Brands, or Merchant's agents that have been
approved by Processor as required under this Agreement and
are properly registered with the Card Brands for the purpose
of assisting Merchant in completing Transactions, or as
specifically required by Applicable Law.
6.5.
Merchant will not retain or store Customer Data, including
but not limited to, Card magnetic stripe, CVV, CVV2, CVC2,
or CID data subsequent to Authorization for a Transaction or
sell, purchase, provide, or exchange Customer Data to any
third party, or to any entity other than Processor, the Card
Brands, or in response to valid legal process or subpoena.
Under the Rules, Merchant does not own the Customer Data,
Card account, Cardholder, personal, or other payment
transaction information generated when a payment transaction
is processed using the Services.
6.6.
Merchant agrees to provide Processor, upon its request,
with such tests, scans, and assessments of Merchant’s
compliance with Rules as may from time to time be required
by Processor or the Card Brands. Additionally, Merchant will
allow Processor or any Card Brand to audit its compliance
with the requirements of this Section 3 related to the
Services provided in this Agreement.
6.7.
Merchant understands that failure to comply with the Rules
or the compromise of any Customer Data may result in
assessments, fines, and/or penalties by the Card Brands, and
Merchant agrees it is liable for and will indemnify and
reimburse Processor immediately for any such assessment,
fine, or penalty imposed on Processor and any related loss,
cost, or expense incurred by Processor. If Processor or any
Card Brand requires a forensic examination of Merchant or
any of Merchant’s service providers, agents, business
partners, contractors, or subcontractors due to a data
breach incident or suspected event, Merchant agrees to
cooperate with such forensic examination until it is
completed, including, without limitation, the engagement of
an examiner acceptable to Processor or the relevant Card
Brand. Notwithstanding the foregoing, the Card Brand may
directly engage, or demand that Processor engage, an
examiner on behalf of Merchant in order to expedite the
investigation of the data breach incident or suspected
event. In either scenario, Merchant agrees to pay for all
costs and expenses related to such forensic examination,
including all of Processor’s reasonable attorneys’ fees and
other costs relating to such forensic examination. Merchant
will take all actions that the Card Brands require in
connection with any investigation and remediation of any
real or suspected data breach incident or event.
7.
SOFTWARE; EQUIPMENT.
7.1.
Merchant agrees to use terminals and related software
systems or equipment acceptable to Processor. Merchant may,
but is not obligated to, obtain equipment from Finix. If
Merchant obtains any such software systems or equipment from
Finix, the terms and conditions governing such systems and
equipment will be set forth in a separate Services Schedule,
and Merchant agrees to pay Finix any fees or charges set
forth in such Services Schedule, and comply with any
additional terms and conditions provided in connection with
such systems and equipment. Merchant will allow for the
implementation of any system changes required by Finix.
Further, pursuant to the Code of Conduct, Merchant may elect
to disable contactless payments from a mobile wallet on its
devices/terminals without having to disable other forms of
contactless payments.
7.2.
If Merchant incorporates an interface between software
solutions for data transfer or any other means, it will be
Merchant’s sole and exclusive responsibility to create,
maintain, and support such interface and Merchant will
defend, indemnify, and hold Processor harmless from and
against any and all demands, claims, losses, liabilities,
damages, costs, and expense of every kind and nature,
including, but not limited to, claims of infringement,
attorneys’ fees, court costs, and litigation expenses,
arising from, in connection with, or by virtue of, either
directly or indirectly, the use of any such interface. Any
such interface must be fully compatible with the processing
systems and networks established and used by Finix. Merchant
agrees that Processor is not liable for damages of any type
or kind caused, by virtue of, or in connection with, either
directly or indirectly, the use, malfunction, or failure of
any interface utilized by Merchant to operate or function in
whole or in part and that Processor has no responsibility to
service, maintain, or repair any interface utilized by
Merchant. If Finix elects in its sole and exclusive
discretion to implement any interfaces elected by Merchant
(it being understood that Finix has no such obligation to do
so), if the implementation process requires consulting
assistance from Finix, Merchant will be billed at Finix’s
then-current rates, which will be calculated from the time
the consultation assistance began. Further, any consultation
assistance provided by Finix will not negate in any way the
non-liability on the part of Processor with respect to the
utilization by Merchant of any interface.
8.
ADDITIONAL REQUIREMENTS FOR PIN DEBIT
TRANSACTIONS. The following additional provisions apply to PIN Debit
Card Transactions:
8.1.
Merchant may not complete a PIN Debit Card Transaction
without the Cardholder’s entry of the PIN through the point
of sale or card terminal. Merchant must not require or
request a Cardholder signature for PIN Debit Card
acceptance. Merchant must not require additional
information, other than the PIN, for the completion of the
Transaction unless specifically required by the Rules.
Merchant must not process a Card Transaction to provide a
refund on a PIN Debit Card Transaction. PIN Debit Card
Transactions must be authorized and processed
electronically. Merchant is responsible for any adjustments
to PIN Debit Card transactions that are made in error.
Merchant will instruct employees not to ask any Cardholder
to disclose a PIN. In the event Merchant or employee(s)
becomes aware of any Cardholder’s PIN, Merchant or
employee(s) will not use such PIN or create or maintain any
record of such PIN, and will not disclose such PIN to any
other person.
8.2.
If Merchant offers cashback to Cardholders when they make a
PIN Debit Card purchase, cashback Transactions shall be
limited to the maximum of $200.00 per Cardholder
on any Transaction date. If Merchant allows Cardholders to
initiate cashback Transactions, Merchant must transmit to
the Debit Network in its Transactions message for each
cashback Transaction the amount of cashback given to the
Cardholder pursuant to the point-of-sale Transaction. If
Merchant receives, in response to a request for
authorization for a cashback Transaction involving the
purchase of goods and services, a denial code indicating
that a cashback Transaction has been denied solely because
the cashback portion of the PIN Debit Card Transaction would
cause the Cardholder to exceed a limit on cash withdrawals
imposed on the Cardholder by the Issuing Bank, Merchant
shall inform Cardholder that the Transaction was denied
because it would cause the Cardholder to exceed such limit
on cash withdrawals, but that a new PIN Debit Card
Transaction in the amount of the purchase alone may be
approved.
8.3.
Merchant must place PIN-pad(s) where Cardholders can input
PINs without revealing PINs to another individual, including
Merchant or its employee(s). Merchant must ensure the PIN
message is encrypted, using a compliant encryption method,
from the PIN-pad to the point-of-sale terminal, and from the
point-of-sale terminal to the Debit Network and back
(end-to-end). The PIN encryption method considered compliant
is the method mandated by the Networks and the Rules.
Merchant may only use a PIN entry device certified by
Processor and listed as compliant by the Networks and Rules
for submitting PIN Debit Card Transactions. Merchant will
comply with any other requirements relating to PIN security
as required by Processor or any Network. Merchant agrees
that if Merchant does not use a point-of-sale terminal that
has been certified EMV chip card compliant and enabled or
when a lost or stolen chip and PIN card is used at an EMV
enabled terminal capable of processing chip and signature
only, Merchant may be liable for payment of any Transactions
submitted for chargeback by the applicable EMV chip card
issuer(s).
8.4.
Merchant must maintain accurate logs of employee shifts and
provide the logs to Finix within 24 hours of Finix’s
request. Merchant agrees that Finix may share such employee
logs with the Interac Association and its members.
9.
ADVERTISING AND PROMOTION.
9.1.
Merchant will display Card Brand and Processor marks,
advertising, and promotional materials in compliance with
the Rules, this Agreement, and any usage guidance provided
by Processor. Merchant will make no other use of the emblems
or marks of any Card Brand, Financial Institution, or Finix
without Processor’s prior written consent. Merchant will not
use the Card Brand marks other than to display decals,
signage, advertising, and other forms depicting the Card
Brand marks that are provided to Merchant by Processor.
Merchant will not use Card Brand marks in such a way that
Cardholders could believe that the products or services
offered by Merchant are sponsored or guaranteed by the Card
Brand. Merchant recognizes that it has no ownership rights
in the Card Brand or Processor marks and agrees not to
assign to any third party any of the rights to use the Card
Brand marks.
9.2.
Merchant will immediately discontinue use of all Card Brand
and Processor marks, emblems, or names upon the sooner of
(i) direction to do so from Processor or any Card Brand; or
(ii) termination of this Agreement.
10.
CHARGEBACKS.
10.1.
Merchant has full liability and responsibility for all
Chargebacks. If Merchant has a reason to dispute or respond
to a Chargeback, then Merchant must do so by the date
provided on the applicable Chargeback notice. Processor will
not investigate or attempt to obtain a reversal or other
adjustment to any Chargeback if Merchant has not timely
responded to the notice.
10.2.
Each Chargeback is immediately due and payable by Merchant.
Without limiting Processor’s other remedies or Processor’s
security interest described in this Agreement, Processor may
deduct, debit, and withhold the amount of a Chargeback or
anticipated Chargeback from Settlement Funds, the Settlement
Account, Reserve Account, or any amounts owed to Merchant by
Processor under this Agreement. Merchant must immediately
pay any fines or fees imposed by a Card Brand or Processor
relating to Chargebacks.
10.3.
Merchant will store and retain Transaction data in
compliance with the Rules, including any periods set forth
therein. Within seven (7) days (or such shorter time as the
Rules may require) of Processor sending Merchant a Retrieval
Request, Merchant must provide to Finix (i) written
resolution of Merchant’s investigation of such Retrieval
Request; and (ii) legible copies of any supporting
documentation requested or required by the Retrieval
Request. Merchant acknowledges that failure to fulfill a
Retrieval Request timely and in accordance with the Rules
may result in an irreversible Chargeback.
10.4.
To the extent that Processor has paid or may pay a
Chargeback or return, Merchant will be obligated to
reimburse Processor for any sums Processor has paid. If
Merchant does not reimburse Processor, Processor will have
all of the rights and remedies of Cardholders under law and
may assert any claim on behalf of a Cardholder individually
or on behalf of all Cardholders as a class.
11.
AMERICAN EXPRESS TRANSACTIONS.
11.1.
Finix, and not Financial Institution, will provide all
Services to Merchant for its Transactions submitted to
American Express. With respect to participation in an American Express
acceptance program, if a conflict between the terms below
and other terms of this Agreement, the terms in this Section
will control. Merchant’s participation in an American
Express acceptance program may be subject to the approval of
American Express. Merchant authorizes Finix to submit American Express
Transactions to, and receive Settlement Funds on such
Transactions from (as applicable), American Express on
behalf of Merchant into the pooled custodial account at
Financial Institution as set forth in Section 5.1 of
the General Terms. Merchant agrees to be bound by the
American Express Merchant Operating Guide: https://icm.aexp-static.com/content/dam/gms/en_ca/optblue/canada-mog.pdf,
which may be updated from time to time by American Express.
Merchant will ensure that data quality (including
Transaction data and customer information) is processed
promptly, accurately and completely, and complies with the
American Express Technical Specifications. Merchant may opt
out of accepting American Express Cards at any time without
penalty and without directly or indirectly affecting its
rights to accept other payment products.
11.2.
Merchant agrees not to assign to any third party any
American Express Transaction Settlement Funds that may be
due to it under this Agreement, and that all indebtedness
arising from American Express Transactions will be for bona
fide sales of goods and services (or both) at its locations
and free of liens, claims, and encumbrances other than
ordinary sales taxes; provided, however, that Merchant may
sell and assign future Transaction Settlement Funds to
Finix, its affiliated entities, and/or any other cash
advance funding source that partners with Finix or its
affiliated entities, without consent of American
Express.
11.3.
Finix may disclose information regarding Merchant and
Merchant’s Transactions to American Express, and American
Express may use such information to (i) perform its
responsibilities in connection with American Express Card
acceptance; (ii) promote American Express; (iii) perform
analytics and create reports; and (iv) for any other lawful
business purposes, including commercial marketing
communications purposes within the parameters of American
Express Card acceptance, and to provide important
transactional or relationship communications from American
Express. American Express may also use such information
about Merchant obtained in connection with this Agreement at
the time of setup to screen and/or monitor Merchant in
connection with American Express marketing and
administrative purposes.
11.4.
Merchant may opt-out of receiving future commercial
marketing communications from American Express by contacting
Finix. Note that Merchant may continue to receive marketing
communications while American Express updates its records to
reflect this choice. Opting out of commercial marketing
communications will not preclude Merchant from receiving
important transactional or relationship messages from
American Express.
11.5.
Merchant acknowledges that it may be converted from
American Express Card OptBlue program to a direct
relationship with American Express if and when its
Transaction volumes exceed the eligibility thresholds for
the OptBlue program. If this occurs, upon such conversion,
(i) Merchant will be bound by American Express’s
then-current Card Acceptance Agreement; and (ii) American
Express will set pricing and other fees payable by
Merchant.
11.6.
Notwithstanding anything in the Agreement to the contrary,
American Express will have third-party beneficiary rights,
but not obligations, to the terms of this Agreement
applicable to American Express Card acceptance to enforce
such terms against Merchant.
11.7.
Merchant’s refund policies for American Express purchases
must be at least as favorable as its refund policy for
purchase on any other Card Brand. Merchant may not bill or
attempt to collect from any Cardholder for any American
Express Transaction unless a Chargeback has been exercised,
Merchant has fully paid for such Chargeback, and it
otherwise has the right to do so.
11.8.
If Merchant is unable to resolve a claim (including initial
claims, counterclaims, cross-claims, and third party
claims), dispute, or controversy (“Claim”) against
American Express, or a Claim against Finix or any other
entity that American Express has a right to join (including
Claims against Finix for which Finix has a right to seek
indemnification from American Express), Merchant agrees to
resolve the Claim by binding individual arbitration in the
manner provided in the American Express Merchant Operating
Guide referenced in Section 11.1 above.
Fund Transfer Services Schedule
This Fund Transfer Services Schedule governs Merchant’s use
of the Fund Transfer Services provided by Processor pursuant
to the Agreement. For purposes of this Fund Transfer
Services Schedule, the term “Receiver” may include a
Customer or Merchant Payee. The General Terms continue to apply with respect to the
provision of the Fund Transfer Services. In connection with
the Fund Transfer Services Merchant authorizes Financial Institution
to originate entries on behalf of Merchant to Receivers’
accounts. In connection with the Fund Transfer Services,
Merchant agrees to comply with: (i) the Payments Canada
Rules for all entries; (ii) any operating rules and
procedures established by Processor; and (iii) Applicable
Law. Merchant acknowledges that a copy of the Payments
Canada Rules is available through Payments Canada. If there
are any inconsistencies between the Fund Transfer Services
Schedule and the Payments Canada Rules, the Payments Canada
Rules will govern. Capitalized terms not defined in this
Fund Transfer Services Schedule have the meanings in the
General Terms.
1.
PROCESSOR’S AGREEMENT TO PROCESS ENTRIES.
Finix
agrees to use reasonable care to (i) comply with instructions of Merchant; and (ii) process
entries received from Merchant to conform with the
specifications set forth in the Payments Canada Rules or as
otherwise required by Processor. Bank agrees to use reasonable care to transmit such entries
as provided in the Payments Canada Rules and this Fund
Transfer Services Schedule. Merchant will be solely
responsible for ensuring the validity, accuracy, and
completeness of all information, data, files, and
instructions provided or transmitted to Processor. Processor
will be entitled to rely upon all such information in
providing the Fund Transfer Services and will have no
liability in connection with such reliance. Processor will
not be required to act on instructions provided by Merchant
if Processor reasonably doubts an instruction’s contents or
Merchant’s compliance with Applicable Law, the Payments
Canada Rules, or this Agreement. Merchant will prepare each
entry or file or API transmitting requested entries in
accordance with the Payments Canada Rules and any additional
requirements that may be provided by Processor. All entries
transmitted by Merchant to Processor for processing must
comply with the formatting and other requirements in the
Payments Canada Rules or as otherwise required by
Processor.
2.
MERCHANT AUTHORIZATION.
Merchant hereby authorizes Financial Institution
to initiate debit and credit entries to Merchant’s
Settlement Account. Merchant’s authorization will continue
in effect for at least one hundred eighty (180) days after
termination of this Agreement, or for a longer period as is
determined necessary by Processor in the exercise of its
sole discretion.
3.
PROCESSING EFT TRANSACTIONS.
Processor will process each entry in accordance with
Processor’s then-current processing schedule and any
instructions regarding the date an entry is to be settled
that Merchant furnishes with the entry (including any
instructions provided for same-day entries), provided that
Processor receives the entry by Processor’s applicable
cutoff time on a Business Day (“Cut-Off Time”). Entries will be deemed received by Processor when the
transmission of the entry to Processor is completed and
authenticated in compliance with Processor’s policies and
procedures. If Processor receives an entry after the
applicable Cut-Off Time, the entry will be treated as having
been received prior to Processor’s applicable Cut-Off Time
the next Business Day on which Payments Canada is open for
business. Processor, in its sole discretion, may process
entries it receives from different merchants in any order
Processor determines and may select such means and routes
for the transfer of funds as Processor considers appropriate
under the circumstances. Processor will not be liable to
Merchant for any delays in processing or settlement. In
addition to the applicable Cut-Off Time for same-day
entries, Merchant agrees to comply with any other
instructions or limitations established by Processor or
Payments Canada for such entries.
4.
SETTLEMENT. All payments received by Financial Institution
on behalf of Merchant for legitimate and authorized EFT
Transactions will be transmitted to Merchant’s Settlement
Account pursuant to the Settlement Payout Schedule.
Chargebacks received after an EFT Transaction has been
settled may be offset and deducted from Settlement Funds or
Chargebacks may be charged back to Merchant’s Settlement
Account or Reserve Account at Processor’s discretion.
Merchant specifically authorizes Processor to debit
Merchant’s Settlement Account or Reserve Account via EFT for
any previously funded EFT Transaction that is returned, and
Merchant warrants to Processor that Merchant will maintain a
sufficient balance to cover return entries and to promptly
notify Finix of any changes to Merchant’s Settlement
Account. In addition, Processor may require additional
monetary sums for the Reserve Account in connection with the
Fund Transfer Services, and Processor reserves the right to
hold additional monies as necessary to reduce any risk
associated with the daily processing of EFT Transactions, as
requested by Merchant. Merchant understands that due to the
nature of EFT Transactions and the electronic networks,
payment to Merchant can be delayed. In such cases, Merchant
agrees to work with Processor to resolve any issues in
crediting or debiting Merchant’s Settlement Account.
5.
RETURNS AND CREDITS.
5.1.
Refunds, Returns, Receipts. Merchant will be responsible for making all cash, check,
or EFT refunds to Receivers after an EFT Transaction has
been batched out for settlement. Unless otherwise approved
by Processor, Merchant must initiate a credit receipt for
the same amount as the original EFT entry to effect voids,
which occur the same day as the day of Authorization and
prior to batching out. Prior to Merchant requesting Processor to process a debit
or credit entry to a Receiver’s account, Merchant shall
secure all authorizations and approvals from its Receivers
and deliver any notifications pertaining to that entry which
are required by the Payments Canada Rules and/or applicable
laws and regulations. Merchant shall retain such consents
and authorizations for two (2) years from the termination or
revocation of the authorization and provide copies of such
authorizations to Processor upon reasonable request. Each void, debit, and credit entry will constitute a
separate Transaction for which Fees may apply. If it
becomes necessary for a reversal of a Transaction to be
initiated, Merchant will submit a request to Processor
to initiate such reversal pursuant to Processor’s
requirements. Merchant will give Processor enough
information to create such reversal.
5.2.
Cancellation, Amendment, Reversal. Merchant has no right to cancel, amend, or reverse an
entry after Processor has received such entry. If Merchant
requests Processor to cancel, amend, or reverse an entry,
Processor may, in its sole discretion, attempt to honor such
request, but will have no liability for its failure to do
so. Merchant agrees to reimburse Processor for any expenses,
losses, or damages Processor incurs in effecting or
attempting to effect Merchant’s request.
5.3.
Returned entries. Finix will notify Merchant of the receipt of a returned
entry no later than two (2) Business Days after the day on
which Processor receives such returned entry. To the extent
Processor has complied with this Fund Transfer Services
Schedule with respect to the original entry, Processor will
have no obligation to re-transmit a returned entry. Merchant
will not knowingly resubmit debit entries returned due to
stop payment or a revocation or termination of the
Receiver’s authorization. Merchant agrees to reimburse
Processor for any returned debit entries on the same day
Merchant receives notice of such returned entry.
5.4.
Late and Rejected entries. Any entries received after the Cut-Off Time will be
processed the following Business Day. Any exceptions that
may be allowed, in Processor’s sole discretion, may be
subject to a late fee assessed by Processor. Finix will
notify Merchant of late or rejected entries. Processor may
reject any entry that does not, in Processor’s sole
determination, comply with the requirements of this
Agreement.
6.
MERCHANT COMPLIANCE.
6.1.
Merchant will not request Processor to initiate entries
that violate Applicable Law or Payments Canada Rules. Merchant is solely responsible for any and all losses
incurred by Merchant or Processor if Merchant initiates
any Transaction prohibited by Applicable Law or Payments
Canada Rules. Merchant will provide such information and
certifications as Processor may reasonably require from
time to time within two (2) Business Days of a request
(subject to Processor’s right, in its sole discretion,
to provide extensions) so that Processor may determine
Merchant’s compliance with this Fund Transfer Services
Schedule, the Payments Canada Rules, and Applicable Law.
Before Merchant initiates any entry, Merchant will
obtain from the Receiver such authorization as is
required by the Payments Canada Rules and Applicable
Law. Merchant will not initiate an entry after such
authorization has been revoked or the arrangement
between Merchant and the Receiver has terminated.
Merchant represents and warrants with respect to all
entries originated by Merchant and processed by
Processor for Merchant that (i) each Receiver has
authorized the debiting and/or crediting of its account;
(ii) each entry is for an amount agreed to by the
Receiver; and (iii) each entry is in all other respects
properly authorized. Merchant is prohibited from
disclosing a Receiver’s account number or routing number
to any third party for use in initiating a debit entry
that is not part of the original authorization. Merchant
agrees that the EFT payment instructions it sends to
Processor will constitute authorization for the
origination of an entry on Receiver’s behalf.
6.2.
Once Processor authorizes an EFT Transaction, Merchant will
ensure that the proof of purchase contains the following
correct information: (i) Merchant’s correct name and
business address; (ii) the date of the Transaction; and
(iii) the total cash price of the sale or EFT transfer
(including all applicable state, federal, or local
surcharges and taxes. Merchant will deliver to the person
presenting the EFT Transaction a true and completed copy of
the proof of purchase with the goods and services purchased.
No EFT Transaction may be altered after Processor authorizes
acceptance of the EFT entry. Merchant may not resubmit an
EFT entry electronically or deposit it by any means once
Processor authorizes a Transaction. Failure to comply with
the above requirements may, in addition to other penalties,
be grounds for immediate suspension/termination of services
and indemnification of Processor by Merchant pursuant to
this Agreement.
6.3.
Merchant agrees not to submit any of the following
Transactions to Processor for electronic processing: (i) any
EFT debit drawn on any depository institution that is not
federally insured or part of the ACSS; (ii) any EFT debit or
credit drawn on the personal checking account of Merchant or
any of its agents or employees; (iii) any third-party items
for electronic processing or EFT debit made payable where
the purpose is for the Receiver to receive cash or cash
back; (iv) any Transaction representing the financing of an
existing obligation whether previously owed to Merchant,
arising from the dishonor of an EFT entry or arising from a
dispute with Merchant; (v) a Transaction which represents an
attempt to collect a Chargeback; (vi) an EFT debit entry for
goods or services that are not concurrently provided to the
Receiver, including any EFT debit given for gift
certificate, a layaway (except for the final payment) or for
a similar Transaction, or for goods or services provided to
a third party; (vii) any entry that is altered by Merchant
in any way; (viii) an EFT entry on an account for which
Processor previously denied authorization. Merchant’s
submission of any of the above Transactions for electronic
processing may subject Merchant to immediate suspension or
termination, and all funds of Merchant, including those in
Merchant’s Reserve Account or Settlement Account, may be
placed on hold; or (ix) any EFT entry initiated on account
of a third party other than Merchant.
7.
SECURITY PROCEDURES.
7.1.
Merchant will comply with the security procedures described
herein and in the Payments Canada Rules
(“Security Procedures”)
with respect to entries transmitted by Merchant to
Processor. Merchant acknowledges that the purpose of such Security Procedures is
for verification of authenticity and that the Security
Procedures are not designed or intended to detect errors in
the entries initiated by Merchant and that Merchant bears
the sole responsibility for detecting and preventing such
errors. Processor reserves the right to change, amend,
replace, or cancel any or all Security Procedures, at any
time and from time to time at Processor’s discretion.
Processor may make any change in Security Procedures without
advance notice to Merchant if Processor, in its judgment and
discretion, believes such change to be necessary or
desirable to protect the security of Processor systems and
assets.
7.2.
Merchant acknowledges and agrees that the Security
Procedures, including any code, password, personal
identification number, user identification technology, token,
certificate, or other element, means, or method of
authentication or identification used in connection with a
Security Procedure (“Security Devices”) constitute commercially reasonable security procedures
under Applicable Law for the origination of entries or the
request for cancellation or amendment of an entry.
7.3.
Merchant authorizes Processor to follow any and all
instructions entered and Transactions initiated using
applicable Security Procedures. Merchant’s initiation of a
Transaction using applicable Security Procedures constitutes
authorization for Processor to execute such Transaction, and
Merchant agrees and intends that the submission of entries
and instructions using the Security Procedures will be
considered the same as Merchant’s written signature in
authorizing Processor to execute such Transaction. Merchant
acknowledges and agrees that Merchant will be bound by any
and all entries initiated through the use of such Security
Procedures, whether authorized or unauthorized, and by any
and all Transactions and activity otherwise initiated by any
person(s) authorized by Merchant to initiate
Transactions (“Authorized User(s)”), to the fullest extent allowed by Applicable Law.
7.4.
Merchant acknowledges and agrees that it is Merchant’s
responsibility to keep all Security Procedures and Security
Devices protected and to provide or make available the same
only to Authorized User(s). Merchant warrants that no
individual will be allowed to initiate transfers of entries
in the absence of proper supervision and safeguards, and
agrees to take reasonable steps to maintain the
confidentiality of the Security Procedures and any Security
Devices provided by Processor in connection with the
Security Procedures described in the Payments Canada Rules.
Merchant agrees to instruct each Authorized User not to
disclose or provide any Security Procedures or Security
Devices to any unauthorized person. Merchant agrees to
notify Finix immediately if Merchant believes that any
Security Procedures, information, or instructions have been
compromised, or otherwise become known to or accessed by
persons other than Authorized User(s), or if Merchant
believes that any entry or activity is unauthorized or in
error. Merchant agrees to notify Finix immediately if the
access of any Authorized Users will change or be revoked.
The occurrence of unauthorized access will not affect any
transfers of entries made in good faith by Processor prior
to receipt of such notification and within a reasonable time
period to prevent unauthorized transfers.
7.5.
Merchant is solely responsible for providing for and
maintaining the physical, electronic, and procedural
security of data and systems in Merchant’s possession or
under Merchant’s control. Processor is not responsible for
any computer viruses (including, without limitation,
programs commonly referred to as “malware,” “keystroke
loggers,” and/or “spyware”) resulting from any computer
viruses. Merchant is solely responsible for maintaining and
applying anti-virus software, security patches, firewalls,
and other security measures with respect to Merchant’s
operating systems, and for protecting, securing, and backing
up any data and information stored in or on Merchant’s
operating systems. Processor is not responsible for any
errors or failures resulting from defects in or malfunctions
of any software installed on Merchant’s operating systems or
accessed through an Internet connection. Merchant agrees
that Processor is not responsible for any losses, injuries,
or harm incurred by Merchant as a result of any electronic,
e-mail, or Internet fraud.
7.6.
If there is a breach of any Security Procedure, Merchant
agrees to assist Processor in determining the manner and
source of the breach. Such assistance will include, but will
not be limited to, providing Processor, or Processor’s
agent, access to Merchant’s hard drive, storage media, and
devices, systems, and any other equipment or device that was
used in breach of the Security Procedure. Merchant further
agrees to provide to Processor any analysis of such
equipment, device, or software or any report of such
analysis performed by Merchant, Merchant’s agents, law
enforcement agencies, or any other third party. Failure of
Merchant to assist Processor will be an admission by
Merchant that the breach of the Security Procedure was
caused by a person who obtained access to transmitting
facilities of Merchant or who obtained information
facilitating the breach of the Security Procedure from
Merchant and not from a source controlled by
Processor.
7.7.
Merchant will implement and maintain security policies,
procedures, and systems related to the initiation,
processing, and storage of entries and resulting Customer
Data. The policies, procedures, and systems will protect the
confidentiality and integrity of Customer Data, will protect
against anticipated threats or hazards to the security or
integrity of Customer Data, will protect against the
unauthorized use of Customer Data, and will include controls
on system access. In addition, Merchant will ensure proper
storage and destruction of authorizations, converted checks,
phone recordings, etc. The definition of Customer Data not
only covers financial information, but also includes
sensitive non-financial information (such as non-financial
account information contained in addenda records for bill
payments) that may be incorporated into the entry or any
related addenda record.
8.
ADDITIONAL TERMINATION RIGHTS.
In addition to Processor’s termination rights under the
Agreement, Processor may immediately terminate Merchant’s
participation in the Fund Transfer Services or suspend
provision of the Fund Transfer Services if it determines in
its sole discretion that (i) the number of returned debit
entries originated is excessive; or (ii) Merchant has
breached the Payments Canada Rules, Applicable Law, or this
Agreement. Any termination of this Fund Transfer Services
Schedule will not affect any of Processor’s rights and
Merchant’s obligations with respect to entries initiated by
Merchant prior to such termination, or the payment
obligations of Merchant with respect to services performed
by Processor prior to termination, or any other obligations
that survive termination of this Agreement.
Disbursement Services Schedule
This Disbursement Services Schedule governs Merchant’s use
of the Disbursement Services provided by Processor pursuant
to the Agreement. The General Terms continue to apply with
respect to the provision of the Disbursement Services.
Capitalized terms not defined in this Disbursement Services
Schedule have the meanings in the General Terms.
1.
DISBURSEMENT PROCESS.
1.1.
Merchant understands and acknowledges that the Disbursement
Services operate on a good funds model and that Financial Institution
must have received sufficient Settlement Funds from the
Networks in advance of the date on which Merchant instructs
Processor to make a payment to the Merchant Payee. At
Merchant’s request, and if approved by Processor, Financial Institution
will debit such payments from Settlement Funds and Financial Institution
will remit such payments to the Merchant Payee through EFT
or other approved Disbursement methods, on behalf of, and in
accordance with, instructions provided by Merchant.
Merchant will be solely responsible for ensuring the
validity, accuracy, and completeness of all Disbursement
information, data, files, APIs, or other instructions
provided or transmitted to Processor. Processor will be
entitled to rely upon all such information in providing the
Disbursement Services and will have no liability in
connection with such reliance. Processor will not be
required to act on instructions provided by Merchant if (i)
Processor reasonably doubts an instruction’s contents or
Merchant’s compliance with Applicable Law or this Agreement;
(ii) there are multiple or conflicting instructions; or
(iii) complying with the instruction may expose Processor to
financial or reputational risk or liability. If an
instruction contains inconsistent or conflicting
information, including with respect to name and account
number, Merchant agrees that Processor may rely exclusively
on the information provided. Merchant agrees that it will be
solely responsible for conducting identity verification on
each payee prior to submitting a Disbursement instruction to
Processor.
1.2.
All payments made to Merchant Payees will be remitted via
EFT or such other Disbursement methods that Processor may
support, as such methods will be subject to change in
Processor’s sole discretion from time to time. If Merchant
instructs Processor to use Settlement Funds for a
Disbursement, Merchant agrees that such sending of funds by
Processor to the Merchant Payee satisfies Processor’s
obligation to settle such Network funds to Merchant.
1.3.
Processor may implement Cut-Off Times for the submission of
Disbursement instructions, which Cut-Off Times will be
provided to Merchant, and which times will be subject to
change in Processor’s sole discretion from time to time. If
Processor receives a Disbursement instruction after the
Cut-Off Time, Processor will generally initiate the
Disbursement on the next Business Day.
1.4.
Merchant has no right to cancel, amend, or reverse a
Disbursement instruction after Processor has received such
instruction. If Merchant requests Processor to cancel,
amend, or reverse an instruction, Processor may, in its sole
discretion, attempt to honour such request but will have no
liability for its failure to do so. Merchant agrees to
reimburse Processor for any expenses, losses, or damages
Processor incurs in effecting or attempting to effect
Merchant’s request.
1.5.
Merchant agrees that Processor may impose limits on the
Disbursement Services in its sole discretion. Merchant
acknowledges that Disbursements may only be made to accounts
within Canada, unless otherwise approved by Processor in its
sole discretion. Merchant agrees that it may not submit
Disbursement instructions on behalf of third parties.
Merchant will only submit Disbursement instructions for
payments that comply with Applicable Law, the Rules and this
Agreement.
1.6.
Merchant agrees to assist Processor in any investigation or
prosecution of claims for unauthorized Disbursements.
2.
MERCHANT PAYEES.
2.1.
Merchant will provide to Finix any information that
Processor requests for purposes of satisfying Processor’s
internal compliance policies and procedures in connection
with the remittance of funds to the Merchant Payee. Merchant
acknowledges and agrees that Processor may, in its sole
discretion, decline or refuse to provide a payment to a
Merchant Payee at any time pursuant to Processor’s internal
compliance policies and procedures.
2.2.
For any Disbursements through the ACSS, Merchant agrees it
will comply with the Payments Canada Rules and Applicable
Law.
3.
TRANSACTION LIABILITY.
3.1.
Merchant acknowledges that Processor is reliant on Merchant
alone for instructions with respect to payments made to
Merchant Payees in connection with the Disbursement
Services. Processor will not be liable if a Merchant Payee
makes a claim or complaint with regard to Processor’s
actions to the extent that such actions result from
instructions received from Merchant.
3.2.
Merchant hereby assumes all liability for any costs or
losses either Merchant or Merchant Payees incur as a result
of errors or omissions in the data and instructions provided
by Merchant to Processor, including any costs for any errors
or returns.
4.
TAX REPORTING AND WITHHOLDING.
Merchant acknowledges and agrees that Merchant is in the
best position to determine the nature of the payments
delivered to Merchant Payees through the Disbursement
Services and whether any such payments are subject to
reporting or withholding obligations under income tax
legislation or other Applicable Law. Merchant hereby accepts
responsibility for such withholding and reporting
obligations and agrees to furnish to Finix such documents
and certifications related to its withholding obligations or
those of Processor upon request.