Terms of Service

Terms of Service

For companies registered in Canada.

Last Updated: June 14, 2020

Introduction and Acceptance

These Terms of Service (this “Agreement”) is entered into by and between you, as the representative of the legally-constituted entity (including but not limited to corporations, partnerships, and legal organizations) using the Services (“Customer”), including its Affiliates, and Payment Rails Inc. (“Payment Rails”), a corporation located at 1800-130 King Street W., Toronto, ON M5X 1E3, including its Affiliates.

BY CLICKING THE ACCEPTANCE BOX UPON SIGNING UP FOR AN ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WITHOUT ANY RESERVATIONS, MODIFICATIONS, ADDITIONS OR DELETIONS. IF YOU DO NOT AGREE TO ALL THE PROVISIONS CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES. THIS AGREEMENT IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND PAYMENT RAILS. AS THE INDIVIDUAL USING THE SERVICES ON BEHALF OF CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, AND HEREBY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT ON BEHALF OF CUSTOMER.

1. Definitions

For the purposes of this Agreement:

1.1 “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity. Without limiting the generality of the foregoing, Payment Rails’ Affiliates include Payment Rails CA Inc (Canada), Payment Rails Ltd (UK), Payment Rails US Inc (US), and Payment Rails HK Limited (Hong Kong);

1.2 “API” means the Payment Rails Application Programming Interface, as more fully described in the API Terms of Use;

1.3 “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including without limitation any information relating to the existence or content of this Agreement, the Services, the Documentation, a Party’s business, products, services, activities, operations, business affairs, clients and prospects (included but not limited to Users), Intellectual Property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing;

1.4 “Currency” means any fiat currency as that term is normally understood. For clarity, this specifically excludes Bitcoin or any other digital currency;

1.5 “Customer Data” means all electronic data or information (in whatever form, including but not limited to text including numbers and / or any other symbols that may be used) created by Customer or Users while using the Services, entered or uploaded manually by Customer or User, retrieved from other sources but belonging to a Customer or User, or created as a result of using the Services;

1.6 “Documentation” means any and all documentation, user manual or other information, available in writing, online or otherwise, relating to the Services provided by Payment Rails hereunder;

1.7 “Effective Date” means the date Customer accepted this Agreement by clicking on the acceptance box online, as registered by Payment Rails’ servers;

1.8 “Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including, without limitation, all source and object codes, algorithms, architectures, structures, user interfaces including display screens, lay-out and development tools), database, design, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration;

1.9 “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing;

1.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

1.11 “Party” means either Payment Rails or Merchant, as applicable, and “Parties” means Payment Rails and Merchant;

1.12 “Patches” means all updates, upgrades, patches, bug fixes, corrections, service packs and releases to the Services or any constituent component thereof;

1.13 “Services” means the software services developed, owned or operated by Payment Rails that enable currency conversion, bank transfers, financial payments made to individuals, transfers of money to a credit or debit card, or other Transactions whether performed via API, an Authorized Application (as defined in the API Terms of Use) or other method, and related functions. Services also includes the Subscription Services;

1.14 “Subscription Services” and “Subscription Term” shall have the meaning set out in section 5.1 hereinbelow;

1.15 “Term” shall have the meaning set out in Section 7.1 hereinbelow;

1.16 “Trademarks“ means trade-marks, trade-names, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not and any goodwill associated therewith;

1.17 “Transaction” means one instance of an outbound or inbound payment made through the Services, one instance of a bank transfer, one instance of a transfer of money to a credit or debit card, or any other individual financial transaction facilitated through the Services; and

1.18 “User” means a client or partner or other user of Customer who may be accessing the Services through the API, an Authorized Application (as defined in the API Terms of Use) or via other means. A “Logged-in User” is a User who has created an account and is logged in to the Services.

2. Payment Rails Services

2.1 Provision of Services
Subject to the terms and conditions of this Agreement and payment in full of the applicable Fees, Payment Rails shall make the Services available to Customer and the Users pursuant to this Agreement during the Term of this Agreement, solely for Customer’s internal business operations and for the use of its Users. In particular, Customer shall not submit any payment transactions or receive funds for or due to an instruction of a third party. Customer agrees that subscription for Services hereunder are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by Payment Rails regarding future functionality or features of the Services.

2.2 Execution and Cut-off Times
Transactions shall be executed within the timelines prescribed by law, and as specified in the Cut off times. For the purposes of calculating execution times and other timelines dependent on the time of submission of a payment order, the cut-off time shall be 3:30PM EST (Eastern Standard Time) on a business day in Canada for payments sent within Canada, and 2:00PM GMT (Greenwich Mean Time) on a business day in the United Kingdom for payments sent outside of Canada. Payment orders submitted after that time are deemed to have been received on the next business day.

2.3 Correct Use of Identifiers and Payment Order Format
Customer is responsible for the correct submission of a payment order and the use of the correct identifier of the payee. The correct use of identifiers and the accepted format for the submission of payment orders is described in the Documentation. Payment Rails may reject any payment order that is not correctly formatted or contains errors that Payment Rails is able to detect in the normal course of events. Payment Rails will inform Customer promptly of any rejection of a payment order. Where possible, Payment Rails may inform Customer about ways to remedy any error. Payment Rails will assist Customer in tracing and recovering any misdirected funds, but reserves the right to charge for this service if allowed by applicable laws.

2.4 Information about Transactions
Customer can obtain information about Transactions at any time by logging into the Customer’s payment account or using the relevant functionality of the Payment Rails API. The use of the Payment Rails API is described in the API Terms of Use and API Documentation.

2.5 Services Changes
Customer acknowledges and agrees that Payment Rails may, from time to time and at its sole discretion, make changes or updates to the Services, including to reflect changes in technology, industry practices and patterns of system use. Customer may object to the proposed changes by terminating this Agreement (and any objection to the change may be treated as a termination notice). Continued use of the Services without termination amounts to acceptance of the changed terms. Any changes with regards to the technical use of the Services may be communicated with less than two months notice if this is necessary for the continued secure provision of the Services. Customer is required to accept all Patches necessary for the proper functioning and security of the Services, as such Patches may be released by Payment Rails. Except for emergency or security related maintenance activities, Payment Rails will use commercially reasonable efforts to coordinate with Customer the scheduling of application of Patches, based on Payment Rails’ next available standard maintenance window.

2.6 Payment Rails’ Responsibilities
Payment Rails shall: (i) provide support for the Services on an as needed basis; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Payment Rails shall use commercially reasonable efforts to give at least 12 hours’ advance notice; (b) any unavailability caused by circumstances beyond Payment Rails’ reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Payment Rails employees), Internet service provider or third-party service provider failures or delays, or denial of service attacks; or (c) a service suspension as set out in section 2.12.

2.7 Protection of Customer Data
Payment Rails has taken commercially reasonable steps to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as more fully described in the Privacy Policy. Payment Rails shall not (i) intentionally modify Customer Data, (ii) disclose Customer Data except as required by law or legal process or as expressly permitted in writing by Customer, or (iii) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. Customer acknowledges and agrees that Payment Rails, its Affiliates or agents may perform certain aspects of the Services (including, without limitation, support services), as well as other services (including disaster recovery) from locations other than Customer’s place(s) of business.

2.8 Customer Responsibilities
Customer shall: (i) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and the use of Customer Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Payment Rails promptly of any such unauthorized access or use, and (iii) use the Services only in accordance with this Agreement and the Documentation and applicable laws and government regulations.

2.9 Restrictions
Customer will not allow the Services to be accessed or used by anyone other than Customer or their Users. Except as provided herein, Customer may not: (i) loan, rent, lease, transfer, convey, assign, sell, distribute or license the Services (or any part thereof); (ii) modify, combine and/or distribute the Services (or any part thereof) with any other software or code in a manner which would subject the Services to Open Source License Terms (as defined hereinbelow); (iii) sell information services to other parties through the use of the Services, whether in the form of a service bureau or other information processing entity; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material (including but not limited to Customer Data) in violation of third-party privacy rights; (v) use the Services in violation of any applicable law; (vi) use the Services to store or transmit Malicious Code; (vii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (viii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (xi) reverse engineer, decompile or disassemble the Services or attempt to gain unauthorized access to the Services or their related systems or networks; or (x) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services. Payment Rails reserves all other rights not expressly granted to Customer hereunder. For the purposes of this Agreement, “Open Source License Terms” means license terms of certain computer code (open source elements) which require such code to (i) be disclosed in source code form to third parties, (ii) be licensed to third parties for the purpose of making derivative works, or (iii) be redistributable to third parties at no charge.

2.10 Prohibited Businesses
In addition to the general prohibitions and restrictions as found in section 2.09 hereinabove, Customer represents and warrants that they shall not use the Services in any manner, including but not limited to using the Services for Transactions, relating to or involved in the following high-risk industries and businesses: (a) adult entertainment including but not limited to pornography, sex-oriented magazines, sex toys, sex channels for television, prostitution, adult cinemas, sex shops, peep shows, and strip clubs; (b) gambling including but not limited to bookmakers, casinos, lotteries, amusement arcades, bingo halls, betting brokers, betting intermediaries, and betting exchanges; (c) any and all bitcoin, digital currency, virtual currency, or cryptocurrency businesses; (d) any and all e-money services such as peer-to-peer transfers, digital wallets, e-commerce payments, or cyber money; (e) money service businesses including but not limited to MSBs, bureau de change, money transmission, money remittance, cheque cashers, cheque encashment, and offshore companies; (f) pay day lending businesses including but not limited to pay day loan companies, short-term unsecured loans, and cash advance companies; (g) financial services including but not limited to investment companies, pensions, securities, trusts, fund management, banking, credit unions, correspondent banking, payment services provider, and handling credit monies; (h) cash intensive businesses including but not limited to pawnbrokers, cash for gold, cheque cashing, nail bars, antiques, second hand car sales, and collection agencies; (i) defence or military industry businesses including but not limited to sales of arms, ammunition, guns, missiles, military vehicles, military aircraft, or any business related to the armed forces or armed services; (j) development assistance including but not limited to development cooperation, development assistance, technical assistance, international aid, overseas aid and foreign aid; (k) diamond and precious metal businesses including but not limited to diamond merchants, precious metal merchants (gold, silver, etc.), jewellers and watch sales; (l) embassies, diplomatic missions, high commissions or consulates; (m) bonded warehouses including but not limited to wine merchants, and wholesale alcohol or drinks distribution; (n) life science and experimental life science companies including but not limited to bioscience and animal testing; (o) political parties, pressure groups think tanks, advocacy groups, lobby groups, campaign groups, interest groups, special interest groups, and policy institutes; (p) private security firms, security contractors, security guard services, patrol services, bodyguards, guard dog services, parking security, and bouncers; (q) unregistered charities and foundations; and (r) any other business prohibited by law.

2.11 Notices
Customer shall not remove any copyright, trademark or patent notices that appear or are displayed through the Services. Customer is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in or that Payment Rails otherwise provides with the Services.

2.12 Services Suspension
Payment Rails may suspend Customer’s account, access to or use of the Services with prior notice, the length of which depends on the urgency of the matter if : (i) Customer or one of its Users breaches any material provision of this Agreement (Payment Rails will restore Customer’s account or use of the Services after Payment Rails determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured); (ii) Payment Rails is of the reasonable opinion that Customer is unable to fulfil its financial or contractual obligations hereunder (iii) Payment Rails has reasons to believe that Customer uses the Services for or in connection with illegal activity or in violation of applicable laws or in violation of sections 2.09 or 2.10 hereinabove; or (iv) Payment Rails detects fraud, a security breach or any other similar threat that causes or that could cause, in Payment Rails’ reasonable opinion, damage to the Services, to Customer’s account and/or Customer Data (Payment Rails will use commercially reasonable efforts to restore the affected Services as soon as possible after the suspension of the Services). Any suspension by Payment Rails of the Services under this Section 2.12 shall not excuse Customer from its payment obligations under this Agreement.

2.13 Third Party Modules
Customer acknowledges and agrees that: (i) certain third party software or services (for example: PayPal API integration) may be included or embodied in or used in connection with the Services and are provided to Customer as part of the Services in accordance with the terms of this Agreement (collectively, “Third Party Modules”); (ii) Customer and its Users are and remain subject to the terms and conditions and policies of such Third Party Modules; and (iii) by accessing and using such Third Party Modules, Customer expressly relieves Payment Rails from any and all liability arising from such access or use, including, without limitation, for any disclosure, modification or deletion of Customer Data.

3. Customer Obligations

3.1 Safeguarding of Customers Service Credentials
Customer may access the Services only by using the service credentials communicated to it by Payment Rails and in a manner described in the Documentation. Customer may not share the service credentials and must secure them at all times against unauthorised access or use. Customer must immediately inform Payment Rails of any suspected or actual loss, theft, unauthorized access or use of the service credentials, by emailing support@paymentrails.com.

3.2 Users
Customer is responsible for all use and misuse of the Services by its Users (including Affiliates of Customer) or their breach of the terms of this Agreement and shall indemnify Payment Rails for any damages, costs and expenses suffered as a result of such use, misuse or breach.

3.3 Assistance
Customer shall provide Payment Rails with all necessary information and assistance that is necessary for the performance of Payment Rails’ obligations hereunder or otherwise that is reasonably requested by Payment Rails. This includes, but is not limited to, providing all information reasonably required (in Payment Rails’ sole opinion) in order to comply with applicable laws and regulatory requirements, including but not limited to applicable anti-money laundering and anti-terrorism financing regulations and guidelines. Payment Rails may withhold or suspend the provision of Services until Customer provides all information required. Customer is also obliged to keep all data and information up to date and inform Payment Rails of any changes.

3.4 Accurate Information
Customer shall be responsible for ensuring that all Customer Data (including but not limited to User account information or any other information required to complete a Transaction) is accurate. Payment Rails shall in no way be held responsible for a Transaction that is not completed as a result of Customer (or any of its Users) supplying incorrect Customer Data or other information.

3.5 Feedback
Payment Rails shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback that Customer (including any of the Users) may propose or make during the term of this Agreement or which Customer (including any of the Users) and Payment Rails may jointly make during the term of this Agreement (collectively, “Feedback”). Customer hereby irrevocably: (i) assigns (on its behalf and on behalf of the Users) all right, title and interest in and to the Feedback to Payment Rails; and (ii) waives in favour of Payment Rails, its successors and assigns any and all moral rights that Customer (including any of the Users) has or may have in the Feedback and agrees to provide Payment Rails such assistance as it may require to document, perfect, and maintain Payment Rails’ rights to the Feedback.

3.4 Viruses and Security
It is Customer’s responsibility to have and maintain in place Malicious Code protection software and security for all of its systems and data and those of its Users, including at a minimum firewalls, passwords, physical security, and access control policies. If Customer’s or the Users’ systems have persistent connections to the Internet, where there is potential for unauthorized access, Customer acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Customer’s responsibility. Customer acknowledges that, to be effective, Malicious Code protection software requires periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate. Payment Rails disclaims any warranty, express or implied, that the services or Customer’s or User’s data will remain virus-free. Support or other services hereunder necessitated by computer viruses, or by any failure or breach of Customer’s security for its systems or data, including, without limitation, damage caused by persons lacking authorized access, are not covered under this agreement. Merchant waives any claims hereunder against payment rails to the extent such claims arise: (i) from Customer’s failure to have or maintain current virus protection, (ii) as a result of a failure or breach of Customer’s security for their systems or Customer data, or (iii) as a result of any unauthorized access to Customer’s systems or devices (except if such access is made by Payment Rails’ employees or agents).

4. Fees and Payment for Services

4.1 Fees
In consideration of the Services provided under this Agreement, Customer shall pay the applicable fees as outlined on our Pricing Page, which shall also be communicated with you upon your becoming a Customer (hereinafter “Fees”). Standard fees are listed in EUR, GBP, USD, CAD or AUD, 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”.

4.2 Payment / Withholding of Fees
Fees due to Payment Rails under this Agreement may be automatically withheld by Payment Rails from the Currency exchanged through a Transaction, or other funds or additional service fees transferred as part of a Transaction. By entering into this Agreement, Customer explicitly authorizes Payment Rails to withhold the Fees in this manner, and as more specifically defined in the Fee Schedule.

4.3 Taxes
Unless otherwise stated, the Fees described the Fee Schedule do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. Where applicable, these taxes will be charged in addition to the Fees.

4.4 Additional Terms in “Fee Schedule”
For clarity, any and all additional terms regarding Fees or any other financial considerations in the Fee Schedule shall be considered integral to this Agreement.

5. Subscriptions

5.1 Subscription Term and Renewals
Unless otherwise specified in an applicable service agreement or other agreement, each subscription to the “Grow”, “Platform” or “Enterprise” version of the Services (the “Subscription Services”) shall automatically renew for either an additional one (1) month or twelve (12) month period (the “Subscription Term”), depending on the Customer’s selected billing cycle, unless either party gives the other written notice of termination at least one (1) business day prior to expiration of the then-current Subscription Term, or Customer cancels the Subscription Services through their account dashboard when they are a Logged-in User, no later than 24 hours prior to the renewal of the Subscription Term.

5.2 Upgrades and Downgrades
At any time but no later than 24 hours prior to the expiry of the Subscription Term, Customer may change the level of the Subscription Services, by changing it through their account dashboard when they are a Logged-in User. A downgrade shall not entitle Customer to a refund of any Fees already paid for the higher level of Subscription Services.

5.3 Fees and Payment
All Subscription Services Fees and related usage Fees (including but not limited to tax services, fraud prevention services, bank account validation services, identity verification services, and background screening services), are as set forth in the applicable Fee Schedule or services agreement and will be paid by Customer within fifteen (15) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable service agreement. All Fees are non-refundable. The rates in the Fee Schedule or service agreement may be updated by Payment Rails by providing Customer with at least sixty (60) days written or emailed notice. Customer is responsible for paying all taxes, and all taxes are excluded from any Fees set forth in the applicable Fee Schedule or service agreement. If Customer is required by law to withhold any taxes from Customer’s payment, the Fees payable by Customer will be increased as necessary so that after making any required withholdings, Payment Rails receives and retains (free from any liability for payment of taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

5.4 Payment Via Credit Card
If you are purchasing the Subscription Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
(a) Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Payment Rails (or its designee) to automatically charge Customer’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription term for all fees accrued as of that date (if any) in accordance with the applicable Fee Schedule or service agreement. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of Non-payment related services.
(b) Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
(c) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Payment Rails and Payment Rails may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
(d) Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the “Settings > Subscription” page on the Dashboard.
(e) Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription term by sending Payment Rails notice of non-renewal to support@paymentrails.com in accordance with Section 5.a (Subscription Term and Renewals) or, by terminating via the “Settings > Subscription” page on the Dashboard, with termination effective at the end of the current Subscription Term. If the customer is on a Trial Subscriptions, and Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period and Customer’s Credit Card will not be charged.
(f) Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Payment Rails will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding fees for Customer’s use of the Services during the Subscription Term, after which Payment Rails will not charge Customer’s Credit Card for any additional fees.
(g) Where any Fees are owed to Payment Rails due to an invalid payment under sub-paragraph (c) hereinabove or upon termination as per sub-paragraph (f) hereinabove, Payment Rails reserves the right to settle any outstanding owed Fees by debiting any amounts held on Customer’s account and / or making use of a collection agency to recover any owed Fees.

5.5 Suspension of Service.
If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Payment Rails reserves the right to suspend Customer’s access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Payment Rails also reserves the right to suspend Customer’s access to the Services without liability to Customer if Customer’s use of the Services is in violation of the Terms of Use.

6. Intellectual Property

6.1 Payment Rails Property
Payment Rails (or its licensors) retains any and all Intellectual Property Rights in and to: (i) the Services and its constituent components, including any enhancements, upgrades or other modifications to the Services or any constituent component thereof; (ii) the Documentation; (iii) all Payment Rails Trademarks (including, without limitation, the “Payment Rails” trademark and logo); (iv) any work products arising from additional custom services (if specified in a separate agreement), unless otherwise agreed to by the Parties; and (v) all Intellectual Property related to any of the foregoing. Customer will acquire no rights or licences to any Payment Rails Intellectual Property unless otherwise expressly provided in this Agreement.

6.2 Customer Data
Customer grants Payment Rails a royalty-free, worldwide, non-exclusive, non-transferable (except to Payment Rails’ Affiliates and agents) and non-sublicensable (except to Payment Rails’ Affiliates and agents) license to use, process and transmit Customer Data for the purposes of, and only to the extent necessary for, the provision of the Services. Payment Rails acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customer Data, including any Intellectual Property Rights therein.

7. Term and Termination

7.1 Term
This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with the terms and conditions set forth in this Agreement (the “Term”).

7.2 Early Termination for Cause
Either Party may terminate this Agreement if: (i) a Party (or any of the Customer’s Users) fails to perform any of its material obligations under this Agreement and such failure is not remedied within 15 days from written notice (including by email) thereof having been given; or (ii) if the other Party takes or is required by any person with proper authority to take, any of the following actions: (a) an assignment, composition or similar act for the benefit of creditors; (b) an attachment or receiving of assets; (c) the filing of a petition for bankruptcy, insolvency or relief of debtors or the institution of any proceedings relating to bankruptcy, insolvency or relief of debtors; (d) committing or threatening to commit any act of bankruptcy; or (e) a winding-up, liquidation or dissolution of the business pursuant to an order of a court of competent jurisdiction.

7.3 Early Termination for Cause by Payment Rails
Payment Rails may terminate this Agreement without notice or with such notice as Payment Rails reasonably determines: (a) if Customer is in material breach of any provision of this Agreement; (b) if Customer fails to comply with Payment Rails’ request for information about Customer or its business or its end-users, or with Payment Rails’ instructions on the use of the Services, in order to comply with legal or regulatory requirements (including but not limited to regulations on anti-money laundering, counter-terrorism financing, fraud or data protection); (c) if Payment Rails reasonably suspects that Customer or any of Customer’s users are involved in any illegal activity (and an activity shall be deemed illegal if it violates any laws or regulations where Customer has any place of business or where any of the Customer’s customers are located, or if it is illegal in any country in which Payment Rails has offices); (d) if Payment Rails reasonably suspects that Customer uses the Services other than for bona fide payments for its own business (including but not limited to processing payments for third parties); (e) if Payment Rails is ordered to terminate the Agreement or otherwise ordered to cease doing business with Customer by a court or competent authority; or (f) if Payment Rails has reasons to believe that Customer is unlikely able to fulfil its financial obligations under this Agreement.

7.4 Termination by Customer
Customer may terminate this Agreement at any time by canceling their Subscription Services as specified in section 5.1 hereinabove. Termination under this section shall not entitle Customer to any refund of any Fees already paid.

7.5 Recourse
The termination of this Agreement for any reason whatsoever will in no way affect either Party’s rights and recourse against the other Party, at law or in equity, for damages for failure to discharge an obligation under this Agreement.

7.6 Access to Customer Data
Unless otherwise agreed in writing between the Parties, after a 30-day period following the date of termination of this Agreement, Payment Rails shall have no obligation to maintain or grant access to any of Customer Data and may thereafter, unless legally prohibited, delete all of Customer Data in Payment Rails systems or otherwise in Payment Rails’ possession or under Payment Rails control.

7.7 Surviving Provisions
Portions of sections 5 through 12 shall survive any termination of this Agreement, as determined by the nature of the section. Any other section (or portion thereof) that by its very nature should survive termination shall also survive termination.

8. Representations and Warranties

8.1 Payment Rails to Customer
Payment Rails represents and warrants to Customer that:
(a) Authority: (i) it has the full right, power and authority to enter into this Agreement; and (ii) that Payment Rails’ entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party;
(b) Rights: (i) subject to third party software licensed directly to Customer, if any, in connection with the use of the Services, it has all necessary rights to provide the Services and (ii) to its reasonable knowledge, the Services do not violate any third party Intellectual Property Right; and
(c) Services: (i) Payment Rails, its employees and agents have the necessary knowledge, experience, and skills to provide the Services; (ii) Payment Rails has and/or will acquire and maintain all license and permits required of them in order to provide the Services; and (iii) maintenance and continuing operation of the Services will be performed in a competent and professional manner.

8.2 Customer to Payment Rails
Customer represents and warrants to Payment Rails that:
(a) Authority: (i) it has the full right, power and authority to enter into this Agreement; (ii) that Customer’s entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which Customer is a party;
(b) Rights: (i) it is entitled to post, submit, transmit or otherwise make available Customer Data through Services (as an owner, licensor or otherwise) and to grant Payment Rails the license described in Section 7.2; and (ii) Customer Data is accurate, not confidential and not in violation of any contractual restrictions, intellectual property rights or other third- party rights; and
(c) Malicious Code Protection: it has and will maintain in place during the term of this Agreement Malicious Code protection software and security for all of Customer’s and User’s systems, devices and data, which such security includes firewalls, passwords, physical security, and access control policies.

8.3 Warranty Disclaimer
Except as set out in section 8.1, Payment Rails expressly disclaims on its behalf and on behalf of its affiliates, shareholders, officers, directors, employees and agents all representations, warranties and conditions express, legal or implied not contained herein, including representations, warranties and conditions of merchantability, quality, performance, fitness for a particular purpose, accuracy and non-infringement. Among others, Payment Rails does not represent or warrant and expressly disclaims that: (i) the services will meet Customer’s business requirements; (ii) the operation of the services will be error-free or uninterrupted or, that the results obtained from their use will be accurate or reliable; (iii) all service errors can be corrected or found in order to be corrected. Payment Rails shall not be responsible for and disclaims any liability associated with any failure to process credit card transactions or the result of any tax calculation through third party modules. Payment Rails shall not, by reason of the discontinuation or modification of the services or the termination or non-renewal of this agreement, be liable to Customer for compensation, reimbursement or damages on account of the loss of prospective profits, or on account of expenditures, investments or commitments made in connection with the establishment, development or maintenance of Customer’s business.

9. Limitation of Liability

9.1 Exclusion of Certain Damages
Payment Rails shall not be liable and assumes no responsibility for any loss or damages arising from or in connection with: (i) the modification or alteration in any manner by Customer or Users of any part of the Services; (ii) the use of any Customer Data or other services or products not developed or provided by Payment Rails; (iii) failure of Customer or Users to meet their obligations hereunder; (iv) claims related to or arising from any error in the treatment of any Customer Data or other information received or processed by Customer through the Services; (v) the access or use by Customer or the Users of any third-party websites or resources that may be accessed from the Services through a link or otherwise; or (vi) claims by any of Customer’s employees.

9.2 Exclusion of Indirect Damages
To the maximum extent permitted by law, in no event will Payment Rails, it’s shareholders, officers, directors, employees or agents: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to this agreement or caused by the any of the services, or the use, misuse or inability to use the services or the documentation, even if Payment Rails has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.

9.3 Amount Limitation
The total liability of Payment Rails for claims by Customer or any other person arising under this Agreement shall be limited to the fees paid by Customer to Payment Rails during the 12-month period preceding the event from which the liability arises. Any damage in favor of Customer against Payment Rails shall be reduced by any refund or credit received by Customer under the Agreement and any such refund and credit shall apply towards the limitation of liability.

9.4 Infringement Limitation
If all or any portion of the Services is, in Payment Rails’ opinion, likely to or otherwise does become the subject of a claim for infringement of any Intellectual Property Rights, Payment Rails may, at its option and its sole cost and expense, either: (i) procure in favour of Customer the right to use the same as contemplated herein, (ii) modify the same to become non infringing provided that any such modification does not materially impair the ability of the Services, or any part thereof to conform to and perform in accordance with the specifications therefor or the intended use of the Services; or (iii) replace the infringing part of the Services, with compatible, feature and functionally equivalent, and non-infringing products or services or documentation, as the case may be. If in Payment Rails’ reasonable opinion it is not commercially reasonable for it to comply with any of (i), (ii) or (iii) above, it may upon written notice to Customer, terminate this Agreement in case the Services are infringing. The remedies set forth in this Section 9.4 are Customer’s sole remedy in the event of a potential infringement or a claim for infringement in connection with the Services.

9.5 Allocation of Risk
Customer acknowledges that Payment Rails pricing reflects the allocation of risk under this Agreement and the limitation of liability specified herein.

10. Customer Indemnification

10.1 Customer Indemnification
Customer shall defend Payment Rails against any claim, demand, suit or proceeding made or brought against Payment Rails, any of its Affiliates, or any of their respective shareholders, officers, directors, employees, or agents (“Indemnified Parties”) by a third party alleging that Customer Data, or Customer (or any User) use of the Services in breach of this Agreement, infringes or misappropriates the Intellectual Property Rights or other rights of a third party or violates applicable law (a “Claim”), and shall indemnify and hold harmless the Indemnified Parties for any loss, claim, damages, cost, expenses, and other liability (including reasonable lawyers’ and experts’ fees and expenses) that any Indemnified Party incurs a result of or in connection with such Claim, provided that Payment Rails: (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases Payment Rails of all liability); and (iii) provide to Customer all reasonable assistance, at Customer’s expense.

11. Confidentiality

11.1 Prior Non-Disclosure Agreement
If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this Section 11.

11.2 Obligation of Confidentiality
The Party (“Recipient”) receiving from the other Party (the “Discloser”) any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect Discloser’s Confidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Without limiting the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish the Confidential Information of Discloser or permit such action, except as reasonably required for the purpose of this Agreement or pursuant to applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its employees, consultants and subcontractors (including, without limitation, its legal advisors) who have a need to know the Confidential Information for the purpose of this Agreement or as permitted herein. Recipient remains liable and responsible for any breach of the terms of this Section 11 made by such employees, consultants or subcontractors (including for greater certainty, in the case of Customer, the Users).

11.3 Use of Confidential Information
Recipient shall not use the Confidential Information of Discloser in any manner except as reasonably required for the purpose of this Agreement or as permitted herein.

11.4 Legal Disclosure
In the event that Recipient becomes legally compelled to disclose any portion of the Discloser’s Confidential Information, Recipient shall forthwith give notice thereof to Discloser and shall collaborate with same in good faith and on a reasonable basis in order to prevent or limit the disclosure or obtain any appropriate protective order or measure. In the event that disclosure may not be prevented, that the protective order or other measure is not obtained or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which is legally required (as reasonably determined by Recipient) and exercise reasonable efforts to obtain reliable assurance that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.

11.5 Injunctive Relief
Each Party acknowledges that the restrictions contained in this section 11 are reasonable and necessary to protect the other Party’s legitimate interests. Each Party understands and agrees that the remedies at law for the violation of any of the covenants or provisions of this section 11 will be inadequate, that such violations will cause irreparable injury within a short period of time, and that each Party shall be entitled to preliminary injunctive relief and other injunctive relief against any such violation by the other Party without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the Party shall have at law and in equity for the enforcement of those covenants and provisions.

11.6 Assistance
Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.

12. General Provisions

12.1 Customer Reference
Customer agrees that Payment Rails may identify Customer as a user of the Services and use its name, trademark(s) and logo(s) in sales presentations, marketing materials and press releases.

12.2 Subcontract
Payment Rails may subcontract any of or all of its obligations under this Agreement to any third party without Customer’s prior written consent.

12.3 Governing Law and Jurisdiction
This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the Province of Ontario, Canada, in the city of Toronto. The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.

12.4 Regulatory Information
Payment Rails is not a bank and does not offer banking services as those terms are defined in Canadian law or government body, including the Bank Act, S.C. 1991, c. 46. Any and all payment services that form part of the Services are provided by the Affiliate, Payment Rails CA Inc., which is registered as a Money Service Business with the Financial Transactions Reports Analysis Centre of Canada (FINTRAC), registration number M18487871, and the Autorité des Marchés Financiers (AMF) in Quebec with license number 904296.

Payment Rails CA Inc. has its registered address at 2201-250 Yonge Street, Toronto ON M5B 2L7, Canada.

12.5 Relationship of Parties
This Agreement is an agreement between separate legal entities and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party.

12.6 Other binding agreements incorporated by reference
Customer acknowledges and agrees that it shall also be bound by the Payment Rails Privacy Policy located at the URL https://www.paymentrails.com/privacy. The Privacy Policy is hereby incorporated by reference in this Agreement. In the event of conflict between the Privacy Policy and this Agreement, the terms of this Agreement shall prevail, and the conflicting term(s) of the Privacy Policy shall be effectively excised, and the remaining terms shall remain in full force and effect.

12.7 Entire Agreement
This Agreement, including any other agreements incorporated by reference herein, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each Party; no other act, document, usage or custom will be deemed to modify this Agreement.

12.8 Assignment
Customer may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without Payment Rails’ prior written consent. Notwithstanding the foregoing, provided that Customer is in compliance with this Agreement, Customer may upon advance written notice to Payment Rails assign all of Customer’s rights and obligations under this Agreement to an existing Affiliate, solely in connection with an internal restructuring provided that such Affiliate: (i) agrees to comply with all of Customer’s obligations under this Agreement evidenced by executing such documentation as Payment Rails reasonably requires to effectuate such assignment; and (ii) is not, in Payment Rails’ sole opinion, a competitor of Payment Rails and does not otherwise pose a threat to Payment Rails’ Intellectual Property Rights. Any assignment, delegation or transfer which violates the foregoing will be void.

12.9 Successors and Assigns
All obligations set forth in this Agreement will bind and enure to the benefit of the respective successors and permitted assigns of the Parties.

12.10 Severability
If any of the provisions contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby.

12.11 Waiver
The failure of a Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of such Party to enforce such provision and every other provision.

12.12 Notice
All notices, permissions and approvals required to be sent hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the 5th day after mailing, or (iii) the 1st day after sending by email. All notices sent to a Party in connection with this Agreement (including its termination) must be addressed to the Party’s contact information listed in this Agreement or in the account information of Customer.

12.13 Contacting Payment Rails
If Customer has any questions about this Agreement, Payment Rails can be contacted at:

support@paymentrails.com

130 King Street West, Suite 1800
Toronto, ON M5X 1E3
Canada

1-855-672-9688

© Payment Rails 2020