Last updated: July 1, 2021
These Terms of Service (“Terms”) are a legal agreement between you (“you” or “your”) and Foghorn Payments Inc. (“Clik2pay”, “we,” “our”, or “us”), and govern your use of the Clik2pay product and our services, including mobile applications, websites, software, and other products and services (collectively, the “Services”). By using any of the Services or otherwise indicating your consent you agree to these Terms, and any other policies referenced within (“Policies”), including terms that limit our liability (see Section 23) and require individual arbitration for any potential legal dispute (see Section 29). If you are using the Services on behalf of a business, you agree that you accept these Terms and have authority to enter into these Terms on behalf of that business. You should read all of the Terms carefully before using the Services. If you do not agree with or accept any of these Terms, you should cease using the Services immediately.
Clik2pay’s Services allow you to send payment requests to collect payments from your customers. Our messaging facilitates funds transfer, and settlement of funds to an account designated by you.
In connection with the Services, you authorize us to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits us to generate an electronic funds transfer to settle the proceeds of all transactions, less any applicable Fees (as defined in Section 8) (“Proceeds”). Your authorizations will remain in full force and effect until you stop using the Services. Our receipt of transaction funds satisfies your customer’s obligation to make payment to you. We will remit to you funds actually received by us on your behalf, less amounts owed to us.
You must register with Clik2pay to use the Services and access any Proceeds. During registration, we will ask you for information including your name and other personal and business information. You must use your or your business’ true and accurate name when registering and provide accurate and complete information in response to our questions. This name will appear on the messages to your customers for all payments you accept using the Services. If a transaction dispute results from your failure to use a reasonably descriptive username, you agree to indemnify Clik2pay for any costs stemming from such dispute. You are fully responsible for all activity that occurs as a result of your use of the Services, including for any actions taken by persons to whom you have granted or who have gained access to the Services. You confirm that you are 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 you operate and that you are an authorized signatory for the business you represent.
Clik2pay may request additional information from you at any time. If you refuse any of these requests, your access to the Services may be suspended or terminated.
We will settle Proceeds to your valid, linked Canadian bank account, and automatically initiate a payout of Proceeds on every valid bank settlement date. If you do not have a linked bank account, you cannot receive Proceeds. We may defer payout or restrict access to your Proceeds if we need to conduct an investigation or resolve any pending Dispute (as defined in Section 27) related to your use of the Services. We may withhold funds by temporarily suspending or delaying payment of Proceeds to you to secure the performance of your obligations under any agreement between you and Clik2pay. We also may defer payout or restrict access to your Proceeds as necessary to comply with applicable law or court order, or if requested by any governmental entity. You will not assign Proceeds due to you under these terms to any third party.
When a payment is made to you, we will update your activity and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your activity, including monthly statements, are available on the mobile application. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your use of the Services, and (b) reconciling all transactional information that is associated with your use of the Services. If you believe that there is an error or unauthorized transaction activity, you must contact us immediately.
You agree to pay the applicable fees listed on our Fee Schedule (“Fees”) for use of the applicable Services. All Fees are charged at the time we process a transaction and are deducted from the transferred or collected funds. Subject to these Terms, we reserve the right to change our Fees upon ninety (90) days’ advance notice provided on the Clik2pay website or communicated to you through the Services. The changes will be effective as of the time they are posted or communicated to you. If you do not agree with these changes, you may stop using the Services. All Fees, charges, and payments collected or paid through the Services are denominated in Canadian dollars, unless otherwise specified. You agree that Clik2pay may set off amounts owed to Clik2pay against funds held or processed by Clik2pay.
The Current Version will be effective as of the time it is posted or communicated to you. Your continued use of the Services after the posting or communication of the Current Version constitutes your acceptance of such Current Version. It is your 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.
We will attempt to fix processing errors we discover. If the error resulted in your receipt of fewer funds than you were entitled to, we will credit you for the difference. If the error resulted in your receipt of more funds than you were entitled to, Clik2pay will withhold any amounts owing from any future Proceeds until we are fully reimbursed for the overpaid amount. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Your failure to notify us of a processing error within sixty (60) days will be deemed to be a waiver of your right to receive the amount owing to you. We will only correct transactions that you process incorrectly if you notify us of such an error.
You are solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your 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 we will not determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. We will report payments and other information to regulatory and government authorities to the extent required by applicable law.
You are solely responsible for all customer service issues or complaints relating to customer purchases. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to our Services.
Please contact firstname.lastname@example.org for all inquiries related to the Services. Clik2pay’s address is: Foghorn Payments Inc. 20 Bloor Street East PO Box 75039 Toronto, ON M4W 3T3.
We reserve the right to amend the Terms or our Policies at any time with notice that we deem to be reasonable in the circumstances and in accordance with applicable law, by posting the revised version on our website or communicating it to you through the Services (each a “Current Version”). The Current Version will be effective as of the time it is posted or communicated to you. Your continued use of the Services after the posting or communication of the Current Version constitutes your acceptance of such Current Version. It is your 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.
We may provide disclosures and notices required by law and other information about your use of the Services to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your registration. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time it is posted or emailed to you unless we receive notice that the email was not delivered. If you do not wish to receive these disclosures and notices, you must cease using the Services.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us, including for the purposes of secondary authentication, receipts, reminders and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you in those communications. You acknowledge that opting out of receiving communications may impact your use of the Services.
By using the Services, you agree 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. You understand that your failure to comply with the Rules may result in fines or other losses to Clik2pay. You will indemnify us and reimburse us immediately for any fines or losses directly or indirectly caused by your and your agents’ actions.
You may not, nor may you 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 our other customers, or impose an unreasonable or disproportionately large load on our 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 us 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 you under these Terms; (h) use the Services in a way that distracts or prevents you 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 you, other Clik2pay customers, our partners, or Clik2pay to harm; (k) represent or suggest that we endorse any other business, product or service unless we have 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.
You 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.
You will only accept payments for transactions that are allowed by applicable law. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of these Terms or any other agreement with Clik2pay, or that it exposes you, your customers, our processors or Clik2pay to harm. Harm includes fraud and other criminal acts. We reserve the right to prevent or suspend your access to the Services if you do not comply with any part of these Terms or any applicable law. If we suspect that you have used the Services for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Clik2pay activity, and any of your transactions with law enforcement and, as deemed necessary by Clik2pay, our payment processing and financial institution partners.
We grant you 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. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time.
We and/or our 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. We and/or our licensors reserve all Intellectual Property Rights not expressly granted to you in these Terms. You agree 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.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trade-mark, 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 our trade-marks. Interac e-Transfer™ and the Interac logo are owned by and used with the permission of Interac Corp. Used under licence. Other trade-marks 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. You will not contest the ownership of the Marks, and any Network may prohibit you from using its Marks for any reason and at any time. Clik2pay does not authorize you to use the Marks. The use or misuse of any trade-marks except as provided in these Terms is strictly prohibited. These Terms do not grant you any rights to our trade-marks or service marks or any third party trade-marks or service marks and nothing contained herein shall be construed as granting any licence or right to use any trade-mark without our prior written permission. Clik2pay respects the copyright and trade-mark rights of others and asks you to do the same. Clik2pay responds to all valid notices of copyright and trade-mark infringement, and it is Clik2pay’s policy to suspend or terminate the access privileges of those who repeatedly infringe the copyrights and trade-marks of others.
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You 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.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk. You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or the Services or any other breach of security.
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms; (c) any information you provide accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, provincial, territorial, and local laws, rules, and regulations applicable to you and/or your business, including all laws governing the protection of personal information, anti-spam legislation and consumer protection laws; (e) you 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) your use of the Services will be in compliance with these Terms.
In addition, with each Clik2pay transaction you process through the Services, you represent, warrant and covenant to us that: (a) the transaction represents a bona fide sale; (b) the transaction accurately describes the goods and/or services provided to the customer; (c) you will fulfil all of your obligations to the customer and will resolve any dispute or complaint directly with the customer; (d) you and the transaction comply with all federal, provincial, territorial, and local laws, rules, and regulations applicable to you and your business, including any applicable tax laws and regulations; (e) except in the ordinary course of business, you are not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of your entity; and (f) you are not submitting a transaction involving your 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. You represent that you are 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”). You may not use the Services if you are or become 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 your 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 you may place on the information on the Services is at your own risk and we may suspend or terminate operation of the Services at any time at our sole discretion. Nothing in these Terms shall operate to prejudice any mandatory statutory requirement or your statutory rights. Information on the Services is provided for your general information purposes only and to inform you about us and our 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 greater of: (a) the aggregate amount of Fees earned by us in connection with your use of the Services during the three (3) month period immediately preceding the event giving rise to the claim, and (b) $500.
You 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 your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of Canada (including its provinces and territories) or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code. In addition, you will indemnify, defend, and hold us and our 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 you through the Services (including the accuracy of any content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you).
We may terminate these Terms or suspend or terminate your access to or use of any Service at any time for any reason. We will provide reasonable notice to you wherever possible. You may terminate the Terms applicable to your use of the Services by terminating your use of the Services at any time. Any termination of these Terms does not relieve you of obligations to pay Fees or costs accrued prior to the termination, and any other amounts owed to us as provided in these Terms. If your access to Services has been terminated, you may still be permitted to use Clik2pay’s other products, subject to our discretion. Termination of Clik2pay Services will cancel any pending transactions. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out according to your payout schedule, subject to the other conditions in these Terms. If an investigation is pending at the time you terminate your use of the Services, we may place a hold on your funds. If you are later determined to be entitled to some or all of the funds, we will release those funds to you.
If these Terms or your 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) we may (but have no obligation to) delete your information and activity data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your 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 (Our Fees), 9 (Processing Errors), 10 (Taxes), 11 (Customer Service), 16 (Ownership and Intellectual Property Rights), 17 (Copyright and Trade-mark 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 32 (Other Provisions).
“Disputes” are defined as any claim, controversy, or dispute between you 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 our relationship.
Any action or proceeding by you relating to any Dispute must commence within two years after the cause of action accrues or you shall be deemed to have waived your right to commence such action or proceeding.
You 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. You waive any right to have your case decided by a jury and you waive 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 you 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, you agree that any judicial proceedings involving Clik2pay will be brought in, and you hereby consent 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 and any rights and licences granted hereunder or thereunder may not be transferred or assigned by you 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.
These Terms, and any applicable Policies, are a complete statement of the agreement between you 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 we 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.
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 tous les documents qui s’y rattachent soient rédigés en anglais seulement.