Last updated: May 26, 2023
These Terms of Service including all documents linked herein (“Terms”) are a legal agreement between you (“Merchant”) and Foghorn Payments Inc. (“Clik2pay”) and govern Merchant’s use of the Clik2pay product and Clik2pay’s services, including mobile applications, websites, software, the portal, and other products and services (collectively, the “Services”). Such Services may be used directly or via a third party platform which has been integrated to the Services. By using any of the Services or otherwise indicating Merchant’s consent Merchant agrees to these Terms, and any other policies referenced within (“Policies”), including terms that limit Clik2pay’s liability (see Section 23) and require individual arbitration for any potential legal dispute (see Section 29). If Merchant is using the Services on behalf of a business, Merchant agrees that Merchant accepts these Terms and has authority to enter into these Terms on behalf of that business. Merchant should read all of the Terms carefully before using the Services. If Merchant does not agree with or accept any of these Terms, Merchant should cease using the Services immediately. These Terms will be binding on Merchant and take effect on the date that Merchant commences use of the Services.
Clik2pay’s Services allow Merchant to send payment requests to collect payments from Merchant’s customers. Clik2pay’s messaging facilitates funds transfer, and settlement of funds to an account designated by Merchant.
In connection with the Services, Merchant authorizes Clik2pay to act as Merchant’s agent for the limited purposes of holding, receiving, and disbursing funds on Merchant’s behalf. For the purposes of receiving settlement of funds, Merchant must identify an operating account at a Canadian financial institution to which transactions will settle (the “Operating Account”). On each settlement day, Clik2pay will settle by means of direct deposit to the Operating Account of the amounts of all such transactions received by Clik2pay, less the value of Fees and any transactions which have been reimbursed or returned pursuant to Interac® rules; and the value of any overpayments made to Merchant by Clik2pay (“Proceeds”). Merchant authorizations will remain in full force and effect until Merchant stops using the Services. Clik2pay’s receipt of transaction funds satisfies Merchant’s customer’s obligation to make payment to Merchant. Clik2pay will remit to Merchant funds actually received by Clik2pay on Merchant’s behalf, less amounts owed to Clik2pay.
Each party receiving or obtaining Confidential Information (the “Receiving Party”) of the other party pursuant to these Terms (the “Disclosing Party”) hereby agrees: (i) to hold the Disclosing Party’s Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including all precautions the Receiving Party employs with respect to its own Confidential Information); (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder; (iv) not to copy or reverse engineer such Confidential Information; and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to these Terms.
Merchant will maintain the confidentiality of any username, PIN or passwords or other security data used to access the Services and will be responsible for any use or misuse of the Clik2pay portal, the Clik2pay mobile app, the Clik2pay API, and any third party platform by Merchant’s employees or agents. Upon becoming aware that Merchant’s username, PIN or password have become compromised, Merchant will promptly take measures to resolve security risks, and provide notice to Clik2pay. Merchant will remain liable for any unauthorized use of the Clik2pay portal and the Clik2pay API until such notice has been received by Clik2pay.
Notwithstanding any provision in these Terms to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of such an order or requirement and the opportunity to contest it. Nothing in these Terms shall be construed to prohibit or restrict Clik2pay’s use or disclosure of transaction data to third parties, including Interac®, in connection with Clik2pay’s performance of its obligations hereunder or for purposes related to fraud and risk management, customer support, or as otherwise required by applicable laws.
As used in these Terms, “Confidential Information” means any data or information, oral or written, treated as confidential by a party which has or will come into the possession or knowledge of the other party in connection with or as a result of entering into these Terms, and any information that relates to the party’s past, present, or future research, development or business activities, and any information relating to services, developments, inventions, processes, plans, financial information, revenue, transaction volume, forecasts, and projections. Notwithstanding the foregoing, Confidential Information shall not include data or information if: (i) it was already known to the Receiving Party prior to the Effective Date, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of these Terms or other wrongful act of the Receiving Party; (iii) it has been rightfully received by the Receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the data or information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
Each party shall comply with all laws and regulations relating to the protection and privacy of personal information. Neither party shall use any personal information for any marketing, preference tracking or other purposes not directly related to the performance of their obligations pursuant to these Terms. These Terms include and Merchant agrees to Clik2pay’s Privacy Policy, which shall be subject to these Terms in the event of any conflict or inconsistency and which explains how Clik2pay collects, uses and protects the personal information Merchant provides to Clik2pay. Merchant represents and warrants that personal information has been lawfully obtained in accordance with applicable laws and all customers to whom the personal information relates have consented to the disclosure and use of their personal information by Merchant as contemplated by these Terms, including the sending of SMS messages and emails. Merchant agrees to immediately inform Clik2pay of any changed circumstance which may affect the truth or accuracy of the foregoing.
Merchant must register with Clik2pay to use the Services and access any Proceeds. During registration, Clik2pay will ask Merchant for information including Merchant’s name and other personal and business information as applicable. Merchant must use Merchant’s or Merchant’s business’ true and accurate name when registering and provide accurate and complete information in response to Clik2pay’s questions. This business name may appear on messages sent to Merchant’s customers for all payment requests a Merchant creates or refunds using the Services. If a transaction dispute results from Merchant’s failure to use a reasonably descriptive username, Merchant shall indemnify Clik2pay for any costs stemming from such dispute. Merchant is fully responsible for all activity that occurs as a result of Merchant’s use of the Services, including for any actions taken by persons to whom Merchant has granted or who have gained access to the Services. Merchant confirms that Merchant is either a legal resident of Canada, a Canadian citizen, or a business entity authorized to conduct business by the province(s) or territory(ies) in which Merchant operates and that the person agreeing to these Terms is an authorized signatory for the business Merchant represents.
Clik2pay will review the information Merchant submits while signing up for the Services. Merchant authorizes Clik2pay to request identity verifying information about Merchant, including, but not limited to (a) a consumer and/or credit report, if applicable, and (b) to the extent applicable, a confirmation from the appropriate governmental authority of Merchant’s corporation’s legal existence. Clik2pay may periodically obtain additional reports to determine whether Merchant continues to meet the requirements to use the Services. Merchant permits Clik2pay to share information about Merchant and Merchant’s application (including whether Merchant is approved or declined), and Merchant’s use of the Services with Merchant’s bank, Clik2pay’s bank or other financial institutions, or as otherwise specified in the Privacy Policy. Clik2pay or its partners may conclude that Merchant will not be permitted to use the Services. Clik2pay may request additional information from Merchant at any time. If Merchant refuses any of these requests, Merchant’s access to the Services may be suspended or terminated.
Clik2pay will settle Proceeds to Merchant’s valid, linked Canadian bank account, and automatically initiate a payout of Proceeds on every valid bank settlement date. If Merchant does not have a linked bank account, Merchant cannot receive Proceeds. Clik2pay may defer payout or restrict access to Merchant’s Proceeds if Clik2pay needs to conduct an investigation or resolve any pending Dispute (as defined in Section 27) related to Merchant’s use of the Services. Clik2pay may withhold funds by temporarily suspending or delaying payment of Proceeds to Merchant to secure the performance of Merchant’s obligations under any agreement between Merchant and Clik2pay. Clik2pay also may defer payout or restrict access to Merchant’s Proceeds as necessary to comply with applicable law or court order, or if requested by any governmental entity. Merchant will not assign Proceeds due to Merchant under these Terms to any third party.
When a payment is made to Merchant, Clik2pay will update Merchant’s activity and provide Merchant a transaction confirmation. The confirmation will serve as Merchant’s receipt. Summaries of Merchant’s activity are available on the mobile application or the Clik2pay portal, as applicable. Except as required by law, Merchant is solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with Merchant’s use of the Services, and (b) reconciling all transactional information that is associated with Merchant’s use of the Services. If Merchant believes that there is an error or unauthorized transaction activity, Merchant must contact Clik2pay immediately.
Merchant agrees to pay the applicable fees for the plan selected as shown here (“Fees”) or otherwise agreed to for use of the applicable Services. All Fees are charged at the time Clik2pay processes a transaction and are deducted from the transferred or collected funds or, upon Clik2pay’s request, Merchant shall pay Clik2pay any additional charges due by cheque, wire transfer, pre-authorized debit (“PAD”), or such other method as Clik2pay may specify. Where the Merchant is on a service plan to which a monthly Fee applies, you authorize Clik2pay to charge the Merchant the monthly Fee on the Effective Date and on the monthly anniversary day of the Effective Date or the next business day thereafter until cancelled. Clik2pay will deduct the monthly Fee amount from the Merchant’s bank account identified within the Merchant’s Clik2pay account registration process via PAD. Foghorn Payments Inc. may appear in your banking information as the debitor of the PAD. You confirm that you have authority under the terms of your bank account agreement to authorize this debit.
You acknowledge that: (i) Terms in this agreement regarding PAD are being entered into for Clik2pay’s benefit and the benefit of any financial institution that holds the PAD account (the “PAD Institution”), and is being entered into in consideration of the PAD Institution agreeing to process PADs against the PAD account in accordance with the rules of the Canadian Payments Association; (ii) Clik2pay may issue a PAD monthly; (iii) Delivery of this PAD to Clik2pay constitutes delivery by you to the PAD Institution; (iv) The PAD Institution is not required to verify that each PAD submitted by Clik2pay has been issued in accordance with this PAD, including the payment amount, or that the purpose of payment for which the PAD was submitted has been fulfilled by Clik2pay as a condition of honouring the PAD; and (v) You waive any requirement that Clik2pay give pre-notification of any payment amount.
You warrant to Clik2pay on a continuing basis that the information provided with respect to the PAD account is accurate and complete. You will notify Clik2pay of any change in such information at least 30 days prior to the next due date of a PAD. You may cancel the PAD at any time by giving Clik2pay 30 days’ prior written notice. For more information on your right to cancel a PAD, you may contact your financial institution or visit www.payments.ca. Clik2pay may also cancel the PAD on not less than 30 days’ notice to you. You have certain recourse rights if any debit does not comply with these Terms. For example, you have the right to receive reimbursement for any debit that is not authorized or is not consistent with these Terms. To obtain more information on recourse rights, you may contact your financial institution or visit www.payments.ca.
Subject to these Terms, Clik2pay reserves the right to change the Fees upon ninety (90) days’ advance notice provided on the Clik2pay website or communicated to Merchant through the Services. The changes will be effective at the end of the 90-day notice period. If Merchant does not agree with these changes, Merchant may stop using the Services.
All Fees, charges, and payments collected or paid through the Services are denominated in Canadian dollars, unless otherwise specified.
Merchant agrees that Clik2pay may set off amounts owed to Clik2pay against funds held or processed by Clik2pay.
Clik2pay will attempt to fix processing errors Clik2pay discovers. If the error resulted in Merchant’s receipt of fewer funds than Merchant was entitled to, Clik2pay will credit Merchant for the difference. If the error resulted in Merchant’s receipt of more funds than Merchant was entitled to, Clik2pay will withhold any amounts owing from any future Proceeds until Clik2pay is fully reimbursed for the overpaid amount. Merchant is responsible for monitoring Merchant’s transactions and ensuring that Clik2pay’s payments to Merchant are correct. Merchant must notify Clik2pay of any errors in payments made to Merchant within sixty (60) days of the error first appearing on Merchant’s electronic transaction history. Merchant’s failure to notify Clik2pay of a processing error within sixty (60) days will be deemed to be a waiver of Merchant’s right to receive the amount owing to Merchant. Clik2pay will only correct transactions that Merchant processes incorrectly if Merchant notifies Clik2pay of such an error.
Merchant is solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for Merchant’s use of the Services (“Taxes”), and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Clik2pay specifically disclaims any liability for Taxes, and Clik2pay will not determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Clik2pay will report payments and other information to regulatory and government authorities to the extent required by applicable law.
Merchant is solely responsible for all customer service issues or complaints relating to customer purchases. In performing customer service, Merchant will always present Merchant as a separate entity from Clik2pay. As between Merchant and Clik2pay, Clik2pay is solely responsible for customer service issues relating to Clik2pay’s Services.
Clik2pay reserves the right to amend these Terms or the Policies at any time with notice that Clik2pay deems to be reasonable in the circumstances and in accordance with applicable law, by posting the revised version on Clik2pay’s website or communicating it to Merchant through the Services (each a “Current Version”). The Current Version will be effective as of the time it is posted or communicated to Merchant. Merchant’s continued use of the Services after the posting or communication of the Current Version constitutes Merchant’s acceptance of such Current Version. It is Merchant’s responsibility to check the site from time to time to verify such revisions. However, any Dispute that arose before the changes will be governed by the applicable terms and policies in place when the Dispute arose.
Clik2pay may provide disclosures and notices required by law and other information about Merchant’s use of the Services to Merchant electronically, by posting it on Clik2pay’s website, pushing notifications through the Services, or by emailing it to the email address listed in Merchant’s registration. Electronic disclosures and notices have the same meaning and effect as if Clik2pay had provided Merchant with paper copies. Such disclosures and notices are considered received by Merchant within twenty-four (24) hours of the time it is posted or emailed to Merchant unless Clik2pay receives notice that the email was not delivered. If Merchant does not wish to receive these disclosures and notices, Merchant must cease using the Services.
Merchant consents to accept and receive communications from Clik2pay, including e-mail, text messages, calls, and push notifications to the cellular telephone number Merchant provides to Clik2pay, including for the purposes of secondary authentication, receipts, reminders and other notifications. Standard message and data rates applied by Merchant’s cell phone carrier may apply to the text messages Clik2pay sends Merchant. Merchant may opt-out of receiving communications by following the unsubscribe options Clik2pay provides to Merchant in those communications. Merchant acknowledges that opting out of receiving communications may impact Merchant’s use of the Services.
Merchant will send any notices to Clik2pay at support@clik2pay.com. All media releases, public announcements and public disclosures by Merchant relating to Clik2pay will be co-ordinated with and approved by Clik2pay prior to its release.
By using the Services, Merchant agrees to comply with all applicable bylaws, rules, and regulations (“Rules”) of Clik2pay’s bank and the payments networks that Clik2pay uses (“Networks”). The Networks amend their Rules from time to time. Clik2pay may be required to change these terms in connection with amendments to the Rules. In the event of inconsistency between a Rule and these Terms, and except as otherwise agreed between Clik2pay and the Network, the Rule shall apply. Merchant understands that Merchant’s failure to comply with the Rules may result in fines or other losses to Clik2pay. Merchant will indemnify Clik2pay and reimburse Clik2pay immediately for any fines or losses directly or indirectly caused by Merchant’s and Merchant’s agents’ actions.
Merchant may not, nor may Merchant permit any third party to, directly or indirectly: (a) export the Services, which may be subject to export restrictions imposed by Canadian law, including the Exports and Imports Permit Act (Canada); (b) access or monitor any material or information on any Clik2pay system using any manual process or robot, spider, scraper, or other automated means; (c) except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services; (d) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by Clik2pay’s other customers, or impose an unreasonable or disproportionately large load on Clik2pay’s infrastructure; (e) copy, reproduce, alter, modify, revise, perform, create derivative works, publicly display, republish, upload, post, transmit, transfer, sell, resell, license, sublicense, distribute or otherwise make available in any way material, information or Services from Clik2pay except as permitted by Clik2pay under these Terms; (f) use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (g) transfer any rights granted to Merchant under these Terms; (h) use the Services in a way that distracts or prevents Merchant from obeying traffic or safety laws; (i) use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm; (j) use the Services for any illegal activity or goods or for any purpose that is prohibited by these Terms or in any way that exposes Merchant, other Clik2pay customers, Clik2pay’s partners, or Clik2pay to harm; (k) represent or suggest that Clik2pay endorses any other business, product or service unless Clik2pay has separately agreed to do so in writing; (l) act as a payment facilitator; (m) use the Services to handle, process or transmit funds for any third party; (n) use the Services to process cash advances; or (o) otherwise use the Services except as expressly allowed under these Terms.
Merchant may not use the Services for the following businesses or business activities: (1) unlicensed or unregulated financial service businesses (2) fantasy phone call services, telemarketing, or infomercial sales, (3) non-governmental lottery sales, (4) massage parlours, (5) escort services, (6) adult entertainment-oriented products or services, (7) ticket factoring businesses, (8) organizations involved in pyramid selling and multi-level marketing businesses, (9) organizations involved in illegal activities, (10) internet gambling or internet casinos, (11) virtual casinos, (12) gambling or betting of any kind, (13) sales of age-restricted products, including alcohol, liquor, cigarettes or tobacco, or (14) any illegal or quasi-legal business activity.
Merchant will only accept payments for transactions that are allowed by applicable law. Clik2pay may decide not to authorize or settle any transaction that Merchant submits to Clik2pay if Clik2pay believes that the transaction is in violation of these Terms or any other agreement with Clik2pay, or that it exposes Merchant, Merchant’s customers, Clik2pay’s processors or Clik2pay to harm. Harm includes fraud and other criminal acts. Clik2pay reserves the right to prevent or suspend Merchant’s access to the Services if Merchant does not comply with any part of these Terms or any applicable law. If Clik2pay suspects that Merchant has used the Services for an unauthorized, illegal, or criminal purpose, Merchant gives Clik2pay express authorization to share information about Merchant, Merchant’s Clik2pay activity, and any of Merchant’s transactions with law enforcement and, as deemed necessary by Clik2pay, Clik2pay’s payment processing and financial institution partners.
Clik2pay grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sublicensable licence to use the software that is part of the Services, as authorized in these Terms. Clik2pay may make software updates to the Services available to Merchant, which Merchant must install to continue using the Services. Any such software updates may be subject to additional terms made known to Merchant at that time.
Clik2pay and/or Clik2pay’s licensors own all rights, title, interest, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. Clik2pay and/or Clik2pay’s licensors reserve all Intellectual Property Rights not expressly granted to Merchant in these Terms. Merchant agrees not to adjust to try to circumvent or delete any intellectual property notices contained on the website or in a Service and in particular in any digital rights or other security technology embedded or contained within any Service. Merchant may not rent, lease, lend, sell, redistribute or sublicense the Services, the Clik2pay Intellectual Property Rights, or any part thereof. Merchant may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, edit, modify, remove or add features to, or create derivative works of the Services, the Clik2pay Intellectual Property Rights, or any part thereof. Any attempt to do so is a violation of the licence granted by Clik2pay to Merchant.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any province, country, territory or other jurisdiction.
The 2-Lock logo and the Clik2pay button are Clik2pay’s trademarks. Interac® is a registered trademark and the Interac e-Transfer® logo is a trademark of Interac Corp., and is used by Clik2pay under licence. Other trademarks and trade names may also be used in the Services. Any use of Network logos and marks (“Marks”) is governed by the Rules, and any use must comply with these requirements. The Networks are the sole and exclusive owners of their respective Marks. Merchant will not contest the ownership of the Marks, and any Network may prohibit Merchant from using its Marks for any reason and at any time. Clik2pay does not authorize Merchant to use the Marks. The use or misuse of any trademarks except as provided in these Terms is strictly prohibited. Clik2pay respects the copyright and trademark rights of others and asks Merchant to do the same. Clik2pay responds to all valid notices of copyright and trademark infringement, and it is Clik2pay’s policy to suspend or terminate the access privileges of those who repeatedly infringe the copyrights and trademarks of others.
Subject to the terms and conditions of these Terms, Clik2pay grants to Merchant a limited, non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable licence to use, display, and reproduce the Clik2pay Trademarks including the Clik2pay logo, button and 2-Lock design on Merchant’s website, in Merchant’s invoices and in other communications to customers by Merchant. Clik2pay may rename or rebrand Clik2pay from time to time in its sole discretion.
Merchant grants to Clik2pay a limited, non-exclusive, non-sublicensable, non-transferable (except as provided in Section 31 (Assignment)), royalty-free, revocable, licence to use, display, store, reproduce and distribute Merchant’s trademarks in order that Clik2pay may identify Merchant as a user of Clik2pay in any list of Clik2pay users on the Clik2pay website or other user lists created by Clik2pay.
Merchant shall strictly comply with all trademark standards and brand guidelines with respect to the use of the Clik2pay trademarks. Neither party shall create a combination mark consisting of one or more trademarks of the other party. All materials created by or for a party which relate to the other party or any materials that contain the other party’s trademarks will be subject to the other party’s prior written approval, which will not be unreasonably withheld or delayed. Each party will allow the other party at least five (5) business days from receipt to review such materials. All uses of the other party’s trademarks shall enure to the benefit of the party owning such trademark.
Clik2pay does not warrant that the Services will be compatible with Merchant’s mobile device or carrier. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with Merchant’s mobile device manufacturer or Merchant’s carrier. Merchant may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls.
The Services may contain hyperlinks or references to third-party sites. Any such hyperlinks or references are provided for Merchant’s convenience only. Such third party sites are not governed by these Terms and Merchant’s use of such sites may be governed by the terms and conditions of such sites. Merchant accesses any such sites at Merchant’s own risk and Clik2pay expressly disclaims any liability for these sites. When Merchant uses a link to go from the Services to a third party site, Clik2pay’s Privacy Policy is no longer in effect.
Clik2pay has implemented technical and organizational measures designed to secure Merchant’s personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, Clik2pay cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Merchant’s personal information for improper purposes. Merchant provides Merchant’s personal information at Merchant’s own risk. Merchant is responsible for safeguarding Merchant’s password and for restricting access to the Services from Merchant’s compatible mobile devices and computer(s). Merchant will immediately notify Clik2pay of any unauthorized use of Merchant’s password or the Services or any other breach of security.
Merchant represents and warrants to Clik2pay that: (a) Merchant is at least eighteen (18) years of age, if applicable; (b) Merchant is eligible to register and use the Services and has the right, power, and ability to enter into and perform under these Terms; (c) any information Merchant provides accurately and truthfully represents Merchant’s business or personal identity under which Merchant sells goods and services; (d) Merchant and all transactions initiated by Merchant will comply with all federal, provincial, territorial, and local laws, rules, and regulations applicable to Merchant and/or Merchant’s business, including all laws governing the protection of personal information, anti-spam legislation and consumer protection laws; (e) Merchant will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) Merchant’s use of the Services will be in compliance with these Terms.
In addition, with each Clik2pay transaction Merchant processes through the Services, Merchant represents, warrants and covenants to Clik2pay that: (a) the transaction represents a bona fide sale; (b) the transaction accurately describes the goods and/or services provided to the customer; (c) Merchant will fulfil all of Merchant’s obligations to the customer and will resolve any dispute or complaint directly with the customer; (d) both Merchant and the transaction comply with all federal, provincial, territorial, and local laws, rules, and regulations applicable to Merchant and Merchant’s business, including any applicable tax laws and regulations; (e) except in the ordinary course of business, Merchant is not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of Merchant’s entity; and (f) Merchant is not submitting a transaction involving Merchant’s own cards (except for reasonable test transactions).
The Services may be controlled and operated from facilities in the United States. Clik2pay makes no representations that the Services are appropriate or available for use other than in Canada. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Canadian and local laws and regulations, including but not limited to export and import regulations. Merchant represents that Merchant is not a person or entity described or designated under the provisions of any Canadian anti-terrorism or sanctions legislation (including under the Criminal Code (Canada), the Special Economic Measures Act (Canada) or the United Nations Act (Canada), or any associated regulations thereof) (a “Listed Person”). Merchant may not use the Services if Merchant is or becomes a Listed Person. Unless otherwise explicitly stated, all materials related to the Services are solely directed to individuals, companies, or other entities located in Canada.
The use of “Clik2pay” in Sections 22, 23 and 24 means Clik2pay, its processors, its suppliers, and its licensors (and their respective subsidiaries, affiliates, agents, directors, employees, and representatives).
The Services are provided “as is” without representation or warranty of any kind, whether express, implied, or statutory. Without limiting the foregoing, Clik2pay specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
Clik2pay does not represent, warrant, promise (whether expressly or by implication), or guarantee that the Services are accurate, reliable, or correct; that any content is or remains available, accurate, complete and up to date, free from bugs, errors or omissions; that the Services will meet Merchant’s requirements; that the Services will be available at any particular time or location, uninterrupted, error-free, without defect or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any reliance Merchant may place on the information on the Services is at Merchant’s own risk and Clik2pay may suspend or terminate operation of the Services at any time at Clik2pay’s sole discretion. Nothing in these Terms shall operate to prejudice any mandatory statutory requirement or Merchant’s statutory rights. Information on the Services is provided for Merchant’s general information purposes only and to inform Merchant about Clik2pay and Clik2pay’s services and news, features, and other websites which may be of interest. It does not constitute technical, financial or legal advice or any other type of advice and should not be relied on for any purpose.
Clik2pay does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. Clik2pay does not have control of, or liability for, goods or services that are paid for using the Services.
To the maximum extent permitted by applicable law, in no event will Clik2pay be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of the Services or any error or inaccuracies in any information on the Services. In all cases, Clik2pay will not be liable for any loss or damage that is not reasonably foreseeable.
Under no circumstances will Clik2pay be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorised access or use of the Services or the information contained therein.
To the maximum extent permitted by applicable law, the total liability of Clik2pay for any claim arising under these Terms or relating to the Services shall in all circumstances be limited to the direct damages arising from such claim and will not exceed the aggregate amount of Fees earned by Clik2pay in connection with Merchant’s use of the Services during the six (6) month period immediately preceding the event giving rise to the claim.
Merchant will indemnify, defend, and hold Clik2pay harmless from and against any and all claims, costs, losses, damages, judgements, tax assessments, penalties, interest, and expenses (including reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of Merchant’s representations, warranties, or obligations set forth in these Terms; (b) any grossly negligent act or omission or wilful misconduct of Merchant; (c) Merchant’s wrongful or improper use of the Services; (d) Merchant’s violation of any third-party right, including any right of privacy, publicity rights or Intellectual Property Rights; (e) Merchant’s violation of any law, rule or regulation of Canada (including its provinces and territories) or any other country; and (f) any other party’s access and/or use of the Services with Merchant’s unique name, password or other appropriate security code.
In addition, Merchant will indemnify, defend, and hold Clik2pay and Clik2pay’s processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgements, tax assessments, penalties, interest, and expenses (including reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any transaction submitted by Merchant through the Services (including the accuracy of any content or product, service, or transaction information that Merchant provides or any claim or dispute arising out of products or services offered or sold by Merchant).
These Terms shall take effect on the Effective Date and shall continue in force until terminated in accordance with this Section 25 (the “Term”).
Either party may terminate these Terms by providing at least 30 days’ prior notice to the other Party if: (i) the other party commits a material breach of these Terms and fails to cure such breach within the 30-day notice period; or (ii) the other party becomes subject to bankruptcy, insolvency, liquidation, winding-up, receivership or similar proceedings.
Clik2pay may terminate these Terms with immediate effect by providing notice to Merchant if: (i) any of the representations and warranties made by Merchant are no longer true; or (ii) Clik2pay is no longer able to provide the Clik2pay Services for any reason, including as a result of any change to the Interac® rules.
Notwithstanding any other provision of these Terms, Clik2pay may terminate for convenience all or any part of these Terms at any time during the Term, with no cost, liability or future obligation on the part of Clik2pay, forthwith upon 90 days’ prior written notice to Merchant. Notwithstanding any other provision of these Terms, Merchant may terminate these Terms for convenience at any time during the Term forthwith upon 90 days’ prior written notice to Clik2pay.
Clik2pay may suspend the Clik2pay functionality for such period of time as Clik2pay may determine in its sole discretion if, in Clik2pay’s reasonable opinion, Merchant’s transactions have generated excessive fraud or if Merchant is in breach of any provision of these Terms. Clik2pay will provide reasonable notice to Merchant wherever possible. Any termination of these Terms does not relieve Merchant of obligations to pay Fees or costs accrued prior to the termination, and any other amounts owed to Clik2pay as provided in these Terms. If Merchant’s access to Services has been terminated, Merchant may still be permitted to use Clik2pay’s other products, subject to Clik2pay’s discretion. Termination of Clik2pay Services will cancel any pending transactions. Any funds that Clik2pay is holding in custody for Merchant at the time of closure, less any applicable Fees, will be paid out according to Merchant’s payout schedule, subject to the other conditions in these Terms. If an investigation is pending at the time Merchant terminates Merchant’s use of the Services, Clik2pay may place a hold on Merchant’s funds. If Merchant is later determined to be entitled to some or all of the funds, Clik2pay will release those funds to Merchant.
If these Terms or Merchant’s use of the Services is terminated or suspended for any reason: (a) the licence and any other rights granted under these Terms will end, (b) Clik2pay may (but have no obligation to) delete Merchant’s information and activity data stored on Clik2pay’s servers, and (c) Clik2pay will not be liable to Merchant or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of Merchant’s information or activity data.
In addition to any payment obligations, the following sections of these Terms survive and remain in effect in accordance with their terms upon termination: 5 (Underwriting and Identity Verification), 6 (Access to Proceeds), 7 (Records and Activity), 8 (Clik2pay’s Fees), 9 (Processing Errors), 10 (Taxes), 11 (Customer Service), 16 (Ownership and Intellectual Property Rights), 17 (Copyright and Trademark Use and Infringement), 19 (Links to Other Websites), 21 (Representations and Warranties), 22 (No Warranties), 23 (Limitation of Liability and Damages), 24 (Indemnity), 26 (Effect of Termination), 27 (Disputes), 28 (Limitation on Time to Initiate a Dispute), 29 (Binding Individual Arbitration), 30 (Governing Law), 31 (Assignment), and 35 (Other Provisions).
“Disputes” are defined as any claim, controversy, or dispute between Merchant and Clik2pay, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of the relationship between the parties.
Any action or proceeding by Merchant relating to any Dispute must commence within two years after the cause of action accrues or Merchant shall be deemed to have waived Merchant’s right to commence such action or proceeding.
Merchant and Clik2pay agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. Any arbitration under these Terms will only be on an individual basis. Merchant waives any right to have Merchant’s case decided by a jury and Merchant waives any right to participate in a class action against Clik2pay. If any provision of this arbitration clause is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by JAMS (https://www.jamsadr.com) or the International Centre for Dispute Resolution Canada (https://www.icdr.org). Any arbitration hearing will occur in Toronto, Ontario. The arbitrator’s award will be binding on the parties and may be entered as a judgement in any court of competent jurisdiction. For purposes of this arbitration provision, references to Merchant and Clik2pay also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, Merchant agrees that any judicial proceedings involving Clik2pay will be brought in, and Merchant hereby consents to the exclusive jurisdiction and venue of, the provincial or federal courts in the City of Toronto, Ontario.
These Terms and any related Dispute will be construed in accordance with and governed by the laws in effect in the province of Ontario and the federal laws of Canada applicable therein, without regard to its choice of law or conflicts of law principles.
These Terms shall be binding upon the parties and their respective successors and permitted assigns. These Terms and any rights and licences granted hereunder or thereunder may not be transferred or assigned by Merchant and any attempted transfer or assignment will be null and void. Clik2pay may transfer or assign any obligation, the Services or these Terms at any time.
During the Term, Clik2pay will be the sole and exclusive provider of the Services and similar services to Merchant.
Neither Merchant or Clik2pay will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of Merchant or Clik2pay whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any subcontractors or any third party providers of goods or services, labour disruptions, pandemics, blackouts, or embargoes).
These Terms and any applicable Policies are a complete statement of the agreement between Merchant and Clik2pay regarding the Services. In the event of a conflict between these Terms and any other Clik2pay agreement or Policy, these Terms will prevail and control the subject matter of such conflict. If any provision of these Terms is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that Clik2pay may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms will be deemed to be a further or continuing waiver of such term or any other term. These Terms may be executed and delivered by electronic means and such electronic signature will have the same force and effect as an original handwritten signature and will be binding on the parties.
The parties have requested that these Terms and all related documents be drawn up in English only. Les parties aux présentes ont exigé que le présent contrat et to documents qui s’y rattachent soient rédigés en anglais seulement.
