1. Introduction, Acceptance, Definitions, and Modifications
services. The Services are more fully defined herein below. For further clarity, any mention of the Website in these TOU includes the Services, as the Services are accessed on a subdomain of the Website.
By visiting and / or using the Website, or by clicking the acceptance box upon signing up for an account, you agree to be bound by the terms of the present agreement, the TOU, without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Website. The TOU are a legal and binding agreement between you and us.
The Services may only be used by legally-constituted entities including but not limited to corporations, partnerships, and legal organizations (hereinafter “Legal Entities”). If you are an individual using the Services on behalf of a Legal Entity, you represent and warrant that you have the capacity and authority to enter into the TOU on behalf of the Legal Entity, and hereby agree to be bound by the terms of the TOU on behalf of that Legal Entity.
The Website is owned and operated by Payment Rails Inc. (“Payment Rails”), a corporation located at 1800-130 King St. W., Toronto, ON M5X 1E3. Where the present TOU refers to “Payment Rails”, it may refer to Payment Rails Inc. and / or its officers, directors, employees, agents or representatives, depending on the context. Any reference to “we”, “our”, or “us” in these TOU, a Website visitor or user, or the Legal Entity they represent (depending on the context), may be referred to as “you” or “your”. When a Website user has created an account and is logged in to the Services, they may be referred to as a “Logged-in User”.
Payment Rails reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website following the posting of any changes to the TOU constitutes acceptance of those changes. If we make any substantial changes to the TOU that materially affect your legal relationship with Payment Rails, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account or by posting a prominent notice when you log in to your account for the first time following those changes.
If you have any questions about the TOU, please contact:
Payment Rails Legal Services
Payment Rails Legal Services
130 King Street West, Suite 1800
Toronto, ON M5X 1E3
2. General Code of Conduct for Use of the Website
In addition to the more specific rules found later in these TOU, you agree that by visiting and / or using the Website, you will:
(i) Not use the Website in any manner that in any way violates these TOU;
(ii) Not use the Website in any manner that violates any intellectual property rights of any third party;
(iii) Not use the Website other than for your own personal use, on behalf of your Legal Entity, or for other Authorized Users (as defined below) on your account;
(iv) Not use the Website in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
(v) Not use the Website in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Payment Rails or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether Personal Information or not) of Payment Rails, other Website users, or any other third party;
(vi) Not: (1) take any action that imposes or may impose (as determined by Payment Rails in its sole discretion) an unreasonable or disproportionately large load on Payment Rails’ (or its third party providers’) infrastructures;
(2) interfere or attempt to interfere with the proper functioning of the Website or any activities conducted on the Website;
(3) bypass any measures Payment Rails may use to prevent or restrict access to the Website or any element thereof;
(4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; or
(5) harvest or scrape any content from the Website in an unreasonable manner;
(vii) Use the Website in good faith, and in compliance with all applicable local, state, provincial, national, and international laws.
3. Accounts, Passwords and Logged-in Users
As part of the account registration process, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. Payment Rails, its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your account information and accessing your account through any means, and disclaims any responsibility in this regard.
Payment Rails reserves the right to terminate your account, or the account of any Authorized User, at its sole discretion, at any time and for any reason, including but not limited to whether you (or the Authorized User, as applicable) have violated the letter or spirit of the TOU, as more further described hereinbelow.
4. Use of the Services
By using the Services, you agree to be bound by the terms of the present section, in addition to the terms found elsewhere in these TOU.
a. Definition of the Services and the Role of Payment Rails
The Services are a propriety software system that Payment Rails has developed to facilitate the making of payments to Recipients, as well as additional related functionalities and services such as tax compliance. Payment Rails is not a bank or a Money Services Business (“MSB”) and Payment Rails does not offer banking or MSB services as those terms are defined in Canadian law or government body, including the Bank Act, S.C. 1991, c. 46, or the Financial Transactions Reports Analysis Centre of Canada. Payment Rails only provides the Services which are used to facilitate your making of payments using a Financial Services Provider (as defined in section 4b. below).
b. Acceptance Process
and (ii) you shall provide any additional information pertinent the acceptance process when requested by us, which shall also be truthful and accurate to the best of your knowledge. Upon receipt of your Onboarding Information, Payment Rails shall determine if you are eligible to use the Services. Payment Rails reserves the right, in its absolute discretion, to determine whether you have been accepted to use the Services. Payment Rails or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from our denial of your access to the Services.
c. Merchant Agreement
Upon becoming a Merchant, we shall forward to you a Merchant Agreement between you (as a representative of your Legal Entity) and a third party financial services partner, which may vary depending on your country of origin (hereinafter “Financial Services Provider”). The Merchant Agreement governs the making of payments to Recipients, facilitated by the Services. It is your responsibility to execute this Merchant Agreement with the Financial Services Provider, and to adhere to the terms and conditions therein at all times when using the Services.
Notwithstanding that Payment Rails has contracted with the Financial Services Providers we use, we have no control over their activities or business nor the terms and conditions of the Merchant Agreement. Payment Rails acts only to facilitate payments made to Recipients via the Financial Services Provider. Payment Rails or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the actions or omissions of any Financial Services Provider, or your violation of the terms of any executed Merchant Agreement, and expressly disclaims any responsibility in this regard.
d. Payment of Fees
By using the Services, you agree to pay the applicable fees as outlined on our Pricing Page, which shall also be communicated with you upon your becoming a Merchant (hereinafter “Fees”). Standard fees are listed in U.S. dollars, however, fees may vary according to the currency chosen for payment. As a Logged-in User, detailed fees can be found in your account under “Fee Schedule”. Fees do not include any applicable taxes in any form, duties, export or import fees, or any similar governmental charges; you shall solely be responsible for payment of any such charges and shall indemnify Payment Rails for any claim MADE against Payment Rails, its affiliates or their respective Representatives in connection therewith. The Fees may be adjusted from time to time; you will be given sufficient notice upon adjustment of the amount of the Fees.
Payment of the Fees shall occur without your intervention. Our Financial Services Provider shall add the Fees to your payments made to Recipients.
e. Third Party Payment Providers
You may choose to use the Services to make payments to Recipients via “Third Party Payment Providers” such as PayPal. When you use these Services in this manner, you acknowledge and agree that you will comply with any Terms of Service or User Agreement or similar contract between you and the Third Party Payment Provider. Payment Rails or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the actions or omissions of any Third Party Payment Provider, and expressly disclaims any responsibility in this regard. Any fees for use of a Third Party Payment Provider to make payments to Recipients shall be borne by you. In addition to the fees owed to the Third Party Payment Provider, you shall also pay the Fees payable to Payment Rails.
f. Tax Compliance Services and Related Disclaimers
Certain Merchants may choose to use the “Tax Compliance Services” portion of the Services, as described more fully on the tax compliance page of the Website. Where you use the Tax Compliance Services, you are subject to the terms of this sub-section of the TOU.
Payment Rails does not provide tax, legal or accounting advice. We will do our best to provide you with the information you need to make your own decisions about compliance with applicable U.S. tax laws. If you still have questions after reviewing the tax information provided by Payment Rails and / or the Internal Revenue Service (“IRS”), you should contact your own tax, legal and/or accounting advisor prior to completing a U.S. Tax Form. The disclaimers in this paragraph apply equally to you as a Merchant or your Recipients.
Information regarding tax withholding rates calculated by Payment Rails and provided to you is dependant on accurate and truthful information regarding Recipients and their situation or circumstances. Payment Rails shall in no way be liable to you or any third party (including but not limited to any taxation authority or a Recipient) for any losses or penalties, pecuniary or otherwise, arising from a Recipient entering inaccurate or false information, whether purposefully or not, or misrepresenting their situation in any manner.
Information regarding tax withholding rates calculated by Payment Rails and provided to you is further dependant on your specific business circumstances and tax form settings you provide to Payment Rails, as well as additional information included but not limited to the income type provided for in a payment to a Recipient. Payment Rails shall in no way be liable to you or any third party (including but not limited to any taxation authority or a Recipient) for any losses or penalties, pecuniary or otherwise, arising from your errors or misrepresentations with regards to your settings, circumstances or any other information provided to Payment Rails, whether made purposefully or not.
As a Merchant using the Tax Compliance Services, you acknowledge and agree to the following (the “Merchant Tax Compliance Obligations”):
- You are solely responsible for remitting any amounts owed by you to the IRS or other governmental authority in a timely fashion according to IRS rules and regulations and/or your normal accounting practises;
- You shall update your settings to reflect any material changes to your situation or circumstances that would affect your tax withholding rates, within 30 days of becoming aware of such material change; and
- You shall inform Payment Rails of any errors or omissions you discover that would affect a tax withholding calculation, within 30 days of becoming aware of such error or omission.
Payment Rails shall in no way be liable to you or any third party (including but not limited to any taxation authority or a Recipient) for any losses or penalties, pecuniary or otherwise, arising from your failure to adhere to the Merchant Tax Compliance Obligations
g. Additional Terms
By using the Services, you acknowledge and agree that any payments to Recipients that are facilitated by using the Services are made for services rendered that in no way violate any applicable civil or criminal law, in either your jurisdiction or the jurisdiction of the Recipient.
Furthermore, both Payment Rails and any Third Party Payment Provider retain the absolute right to refuse to offer the Services or facilitate or complete any payments to Recipients where payments are to be made for services that we or the Third Party Payment Provider may consider “high risk” or that in any way violate any Merchant Agreement. This paragraph shall apply even if you have been accepted use the Services generally.
5. Copyright and Intellectual Property Rights
The content, arrangement and layout of the Website and Computer Code (as defined below) are proprietary to Payment Rails, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled, derivative works made thereform or otherwise used without the express permission of Payment Rails, or as permitted by the functionality of the Website or these TOU. Any unauthorized use of the content, arrangement or layout of the Website, Computer Code, images, logos, videos, audio or trademarks found in the Website or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Payment Rails may take action accordingly.
If you choose to communicate to Payment Rails suggestions for improvements to the Website and / or the Services, (collectively, “Feedback”), Payment Rails shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Payment Rails and waive in favor of Payment Rails, its successors and assigns all your moral rights in the Feedback, and agree to provide Payment Rails such assistance as Payment Rails may require to document, perfect, and maintain Payment Rails’ rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Payment Rails, you are not entitled to any compensation or reimbursement of any kind from Payment Rails under any circumstances.
b. Application Programming Interface (“API”)
6. External Links
In no way will Payment Rails or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
7. Interruption of Service
From time to time, the Website may be unavailable for periods of time for maintenance and / or modifications to the Website. While we will endeavour to make this unavailability as brief as possible, Payment Rails or its Representatives shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website, and disclaims any responsibility thereto.
8. Data Protection
This section applies to the extent that you or Payment Rails process data to which European data protection laws apply.
The term “GDPR” also “General Data Protection Regulation”, means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time.
The terms “Personal Data”, “Data Subject”, “Data Controller”, “Data Processor” and “processing” shall have the meaning given to them in the GDPR.
“EU Data Protection Laws” means any applicable laws relating to the protection of personal data including but not limited the GDPR, national laws relating to data protection, applicable industry standards, the EU-US Privacy Shield Framework, any guidance issued by a competent data protection authority in the UK or at a place of business of the Merchant if the Merchant has a place of business in the EU.
In this Agreement, a Party that acts as a Data Controller with respect to certain Personal Data shall be referred to as a “Controlling Party” and a Party that acts as a Data Processor with respect to certain Personal Data shall be referred to as a “Processing Party” with respect to the Personal Data in question.
Nothing in this Agreement shall make the Parties joint Data Controllers. Each Party shall refrain from any communication or other acts vis-à-vis third parties that may declare, imply or suggest that the parties are joint Data Controllers.
Each Party has taken commercially reasonable steps to maintain appropriate administrative, organisational, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data.
Each Party shall:
(a) process all Personal Data in accordance with applicable Data Protection Laws;
(b) limit the processing of Personal Data to the purpose of fulfilling its obligations under this Agreement and/or any obligations of a Party towards a Merchant or Data Subject;
(c) promptly correct any incorrect Personal Data or update Personal Data at the request of the Data Subject.
A Processing Party shall:
(d) follow all reasonable instructions of the Controlling Party with respect to the processing of Personal Data; the reasonableness of the instruction is to be assessed against Data Protection Laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to follow the instruction free of charge, the Controlling Party shall undertake to indemnify the Processing Party when giving the instruction;
(e) immediately inform the Controlling Party of any IT security incident or other incident affecting Personal Data and which may have a negative impact on the rights of a Data Subject with respect to the processed Personal Data; to this effect the Parties shall put in place and maintain relevant communication channels for urgent communication;
(f) forward, without undue delay, to the Controlling Party any communication from regulators or Data Subjects (including but not limited to complaints, data subject access requests, data correction or deletion requests, data migration requests) that is relevant for the Controlling Party;
(g) not transfer any Personal Data outside the EEA unless:
i. the transfer is to a jurisdiction that is deemed equivalent to the EEA by a decision of the EU Commission or the transfer is to a recipient outside the EEA under an agreement with the Processing Party that binds the recipient to the EU Standard Contractual Clauses, and
ii. the Processor has notified the Controller of its general intention transfer Personal Data to a particular recipient in accordance with sub-section (i) and the Controlling Party has not objected to the intention within 5 business days.
(h) provide the Controlling Party upon request with reasonable assistance in connection with the Controlling Party’s obligations to comply with Data Protection Laws (including but not limited to necessary inspections, audits and request for information); the reasonableness of such assistance is to be assessed against Data Protection Laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to provide assistance free of charge, the Controlling Party shall undertake to indemnify the Processing Party when requesting assistance;
(i) execute such further documents, including but not limited to further processing agreements or EU standard contractual clauses, as the Controlling Party requires in order to comply with Data Protection Laws;
You are aware that international payment transactions frequently require the transfer of Personal Data outside the EEA. The prohibition on transfers to third countries shall not apply to Personal Data processed by Payment Rails in connection with such international payment transactions. Instead, you shall at all times ensure that you have:
(j) procured and will maintain the necessary informed and valid consents from the Data Subject that allows the transfer of Personal Data worldwide for the purposes of providing the Services under this Agreement
(k) notified the Data Subject about the purpose, nature and extent of the processing of Personal Data (by way of a privacy statement presented to the Data Subject or otherwise).
You shall indemnify Payment Rails for any loss (including but not limited to claims by Data Subjects or fines imposed by regulators or courts) caused by the Merchant’s failure to comply with this section.
The Merchant shall reimburse Payment Rails for any reasonable cost incurred in connection with directly dealing with individuals whose Personal Merchant Data are being processed, including but not limited to cost incurred in connection with any individual’s data subject access requests, deletion requests, complaints resolved in favour of Payment Rails, data migration requests or the exercise of any other individual rights under the GDPR or other applicable laws.
9. Termination of the Website or Your Access to the Website and the TOU
Payment Rails may also, in their sole discretion and at any time, discontinue providing the Website, or any portion thereof, with or without notice. You agree that Payment Rails shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Website, or from Payment Rails’ termination of the Website or any part thereof.
You may also choose to terminate your access to the Website by cancelling your account. If you wish to cancel your account, please contact us at email@example.com.
Termination of the Website or your access to the Website shall terminate the present TOU as between you and Payment Rails. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
10. Disclaimer of Warranties
You expressly understand and agree that your use of the Website, the information thereon or materials downloaded therefrom, or any activity arising from your use of the Website or the information thereon or the materials downloaded therefrom is at your sole risk. The Website, any materials downloaded therefrom, or any third party materials, are provided on an ” as is” and “as available” basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or any other functionalities of the Website, or losses or damages (financial or otherwise) resulting from your use of the Website, the information thereon, any materials downloaded therefrom, or any activity arising from the use of the Website, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Website, written or produced by Payment Rails staff, freelance writers or other subcontractors hired by Payment Rails are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Payment Rails shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or the information thereon;
Payment Rails expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website, the information thereon or any materials downloaded therefrom, and any third party materials or third party services accessed via the Website will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Payment Rails, its affiliates and their respective Representatives, do not warrant that: (i) the Website will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content (whether provided by Payment Rails or third parties) available at or through the Website is free of viruses or other harmful components; or (iv) the results of using the Website or any content downloaded therefrom will meet your requirements;
Some of the content displayed on the Website may include materials (including with respect to products or services) that belong to or are provided by third parties. You acknowledge that we assume no responsibility for such content, products and/or services.
To the extent that the law does not permit a disclaimer of warranties, all content accessible on this Website, or any other website to which we link, and all operations on this Website are warranted only to the minimum amount legally required.
11. Limitation Of Liability
In no case will Payment Rails, its affiliates, or their respective Representatives or licensees be liable for any indirect, special, consequential, exemplary, punitive damages or other damages, or for any losses, damages, liabilities, costs and expenses arising out of or relating to (i) your access, use, misuse or inability to access or use the Website or any third party services accessed via the Website, or (ii) the interruption, suspension or termination of any part of or all the Website; and in both cases (i) and (ii) regardless of the cause of action (whether in contract, warranty, delict, quasi-delict, tort, negligence, strict liability or any other theory of liability) and even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary in the TOU, in no event will our aggregate liability for any claims in connection with your use of the Website and exceed the lesser of (i) CAD$100 or (ii) the total amount of the fees paid by you to Payment Rails over the previous 6 (six) calendar months.
Payment Rails disclaims any responsibility where we, our Financial Services Providers or any Third Party Payment Provider fails to fulfill any contractual obligations due to an act of God or to any force majeure event.
You expressly understand and agree that Payment Rails, its affiliates, or their respective Representatives or licensees shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, in contract, tort, strict liability, negligence, general civil liability or any other cause of action under legal or equitable theory, relating to the Website, the information on the Website, the use of the Website, activities arising from your use of the Website, any third party materials on the Website, access to or use of any third party services available through the Website, or any materials downloaded from the Website. This limitation of liability applies, without limitation, to any damages or injury caused by any error, omission or other failure of performance by Payment Rails, its affiliates, business partners (including but not limited to our Financial Services Providers), agents or other subcontractors; any interruption, defect or delay in operation or transmission, including communication line failure; any computer virus; and any theft, destruction or alteration of, or unauthorized access to or use of, any electronic records.;
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions and limitations may or may not apply to you.
13. Governing Law and Applicable Jurisdiction
The TOU and your use of the Website shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, in force at the time, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Regardless of where you access the Website, you agree that any action arising out of or relating to the TOU or your use of the Website shall be filed and adjudicated only in the courts located in Toronto, Ontario, Canada, and you hereby irrevocably and unconditionally consent and attorn to the exclusive jurisdiction and venue of such court over any suit, action or proceeding arising out of the TOU or your use of the Website. Notwithstanding the foregoing, Payment Rails shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Toronto court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce a judgment obtained against you in the Toronto court.
14. Law Enforcement
Payment Rails reserves the right, without any limitation whatsoever, to: (i) investigate any suspected breaches of the Website security or its information technology or other systems or networks; (ii) investigate any suspected breaches of the TOU or violations of any additional terms, conditions or rules posted in connection with a particular service or feature on the Website; (iii) involve and cooperate with law enforcement authorities in investigating any such matters; and (iv) prosecute violators of the TOU to the full extent permitted by applicable law.
15. Miscellaneous Provisions
(ii) Payment Rails shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Payment Rails’ reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation.
(iv) The failure of Payment Rails to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Payment Rails.
(v) You shall not transfer or assign any rights or obligations you have under these TOU without the prior written consent of Payment Rails
© Payment Rails 2018
Last Revised: May 22, 2018