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3601 Highway #7 East, Suite#400, Markham, ON L3R 0M3.
WHEREAS Vendor provides point-of-sale equipment (“Equipment”) and related services (“Services”) concerning debit card, credit card or other eligible card transactions (“Transactions”);
AND WHEREAS Merchant has to agreed to purchase or lease Equipment and wishes to obtain Services from Vendor;
THEREFORE the parties agree as follows:
1.LEASE OR SALE OF EQUIPMENT – Merchant agrees to (i) purchase the Equipment for the price as specified; or (ii) lease the Equipment from a third party, the terms of such lease to be determined by separate agreement.
2.SERVICES CONDITIONAL ON ACCEPTANCE – the provision of Services is conditional upon the acceptance (“Acceptance”) of Merchant by Vendor and by Emergis Inc. (“Emergis”) or any other of Vendor’s partners.
3.TERM – This Agreement will become effective upon Acceptance and continue for four (4) years (the “Initial Term”) unless terminated as set forth herein. Thereafter, this Agreement will be automatically renewed for successive four (4) year terms (each, a “Successive Term”) unless the Merchant notifies the Vendor in writing of its intention not to renew this Agreement at least three (3) months prior to the commencement of a Successive Term.
4.(a)WARRANTY & REPAIR – Vendor will remotely diagnose and/or replace defective Equipment as long as Merchant: (i) has processed a Transaction within the past sixty (60) days; (ii) Merchant is not in arrears to Vendor; and (iii) is not in possession of unreturned Equipment. Merchant will be responsible for (i) returning defective Equipment to Vendor; and (ii) all costs associated with Equipment damaged as a result of neglect, abuse, spillage or similar occurrences. Unreturned Equipment will be subject to a fee of $99 per item of Equipment per month. (b) The warranty described in Paragraph 4(a) is specifically limited to the warranties allowed for and described in the manufacturer’s product warranty(s), all of which the Merchant states it is aware of, or is deemed to be aware of, and agrees constitutes CPOS Inc. limit of liability and is in breach of any other warranty of merchantability, quality, fitness and durability. CPOS Inc. shall not be responsible for any incidental, third party, or consequential damages arising from any breach of warranty. By this clause, the parties to this agreement accept that all warranties relating to the Vendors products have been disclosed, and there are no material claims with regard to any of those warranties.
5.PROVISION OF SERVICES – Vendor hereby agrees to use its reasonable efforts to provide the following Services:
(a) connection of the Equipment to a transaction processor for the processing of Transactions;
(b) settlement (“Settlement”) of the Transactions to Merchant’s bank account (the “Account”) for the face amount of all Transactions, less any related transaction fees (“Fees”) and all refund Transactions; and
(c) Settlement of surcharges (“Surcharges”), if any;
6.FEES AND SURCHARGES – Merchant acknowledges that:
(a) each Transaction will be subject to the Fees set out herein or as otherwise agreed to and that the Vendor’s share of such Fees will be deducted from the Account at any time and from time to time;
(b) Fees apply to both approved and denied Transactions, key exchanges, totals and Settlement; and
(c) a portion of the Surcharges are the property of and shall be held in trust for the Vendor and the Vendor’s share of such Surcharges will be deducted from the Account from time to time.
7.ACCEPTANCE OF DELIVERY – Refusal to accept delivery of the Equipment will result in the Merchant being charged a $500 re-stocking fee per Equipment, which fee the Merchant authorizes the Vendor to deduct directly from the Account.
8.VERIFICATION OF INSTALLATION – Failure to verify that the Equipment has been installed within one (1) business day of its delivery or failure to make the requisite lease payments under the lease will result in the Merchant being charged the accelerated sum of the remaining lease payments, which the Merchant authorizes the Vendor to deduct directly from the Account.
9.REMOVAL – The Merchant acknowledges and agrees that the Equipment may only be removed from the Merchant’s premises with the Vendor’s prior written consent and at the Merchant’s sole cost and expense.
10.EQUIPMENT AT THE RISK OF THE MERCHANT – The Merchant assumes all of the obligations and risks of an absolute owner, and the Equipment is at the sole and exclusive risk of the Merchant from its date of delivery. The Merchant is liable for any loss, damage or destruction to the Equipment, however caused.
11.INSURANCE – Merchant must keep the Equipment insured against all risks of loss or damage from any cause whatsoever for not less than the full replacement value thereof. Merchant must carry public liability insurance, both personal injury and property damage, covering the Equipment. All such insurance must be in form and with companies satisfactory to Vendor and name Vendor as Loss Payee. Merchant must pay the premiums for such insurance and deliver to Vendor satisfactory evidence of same. Proceeds of such insurance payable as a result of loss or damage to the Equipment must be applied towards Merchant’s obligations hereunder, and Merchant irrevocably appoints Vendor as its attorney-in-fact to make a claim for, receive payment of and execute and endorse all documents, cheques or drafts received in payment for loss or damage under any such insurance policy.
12.INSURANCE NON-COMPLIANCE – In the event Merchant fails to comply with its obligations under s.11 to deliver to Vendor evidence of insurance naming Vendor as Loss Payee, or upon cancellation or non-renewal of the required insurance, Merchant may be subject to an Insurance Non-Compliance Charge in the amount of $4.95 per month, per item of Equipment, such amount to be deducted from the Account during the remaining term of this Agreement or until such time as satisfactory evidence of insurance coverage has been provided. The Insurance Non-Compliance Charge is not an insurance premium and will not be used to obtain insurance for the Merchant, and will not relieve Merchant of any obligation under s. 11.
13.DATA PLAN – The overage rate for all cellular data plans is $.05/kilobyte. In addition to the cellular data fees set out herein, any data transmission while roaming will be subject to roaming charges, which rates vary by carrier.
14.TRANSACTIONAL DATA – Merchant authorizes Vendor to share any and all data with third parties, including data regarding Transactions, for the purposes of enabling such third parties to provide ancillary Services to Merchant, including, but not limited to, merchant cash advance services.
15.VENDOR’S LIMITED LIABILITY – The Vendor is not, under any circumstances whatsoever, liable for any damage to property or injury to any person, either direct or consequential, caused by or arising out of the delivery, installation, use, repair or presence or defect of the Equipment or any part or portion of the Equipment. All other liability of the Vendor is limited to $1.00.
16.FEES AND MONIES OWING – The Merchant irrevocably authorizes and directs the Vendor or its agents/subcontractors to deduct out of the proceeds of all Transactions or Surcharges, all amounts as may be due and payable in accordance with the terms and conditions of this Agreement and further authorizes the Vendor to deduct any Fees or any other monies owing to the Vendor directly from the Account.
17.REFUSED OR RETURNED FEES – If monies deducted from the Account in accordance with this Agreement are refused or returned due to insufficient funds or otherwise, the Vendor reserves the right to:
(a) charge the Merchant administrative fees in addition to any and all outstanding Fees or monies owing; and
(b) deduct out of the Proceeds a reserve amount sufficient to protect the Vendor against future refusals or returns.
18.MERCHANT’S RESPONSIBILITIES – The Merchant will:
(a) process Transactions only for the bona fide sale of goods and services and connect the Equipment to the transaction processor specified by the Vendor;
(b) adhere to all requirements (the “Requirements”) applicable specifically to the services it provides as specified by (i) the Canadian Payments Association; (ii) Credit Card companies and associations; (iii) the Interac Association (“Interac”) Memorandum, By-law, Regulations or any other directive guidelines or policies promulgated by the Board of Directors of the Interac Association; (iv) or any requirements of which Emergis or the Vendor advises from time to time generally;
(c) be bound and abide to the Interac Client Terms and Conditions;
(d) if Merchant believes any adjustments should be made to the Account, notify Vendor in writing within forty-five (45) days after any such debit or credit is or should have been effected. If Merchant notifies Vendor after such time period, Vendor may, in its discretion, assist Merchant at Merchant’s expense, in investigating whether any adjustments are appropriate and whether any amounts are due to or from other parties. Regardless, Vendor does not have any obligation to investigate or effect any such adjustments, and any voluntary efforts by Vendor to investigate such matters do not create an obligation to continue such investigation or any future investigation;
(e) maintain the Account at all times and allow the Vendor and Emergis access to debit and credit the Account for the purposes of giving effect to this Agreement;
(f) take such steps as are necessary or advisable in order to prevent unauthorized use of the Equipment;
(g) notify the Vendor immediately upon discovering any loss (including theft) or damage to or unauthorized use of the Equipment;
(h) maintain the Equipment in a state of good repair, condition and working order as would a prudent owner;
(i) promptly report any errors, malfunctions or other problems of the Equipment to the Vendor;
(j) allow the Vendor to have free and unobstructed access to the Merchant’s premises as required for site preparation, installation, investigation and maintenance activities during the Merchant’s normal business hours;
(k) maintain appropriate reporting and operational processes to reconcile on a daily basis Settlement totals posted to the Account;
(l) maintain accurate logs of employee shifts and provide these logs (with or without employee names) to the Vendor or Emergis within 24 hours of a request to do so; and
(m) aid in the remote diagnostics and service of the Equipment.
19.MERCHANT ACKNOWLEDGMENTS – The Merchant acknowledges that:
(a) the Vendor does not guarantee uninterrupted service of the Equipment and specifically waives all rights that it has or may have and hereby releases the Vendor from any and all liabilities whatsoever of every nature for or by reason of any interruption of services or the Equipment;
(b) the Vendor is not liable whatsoever for any direct or indirect losses or damages, general or specific, with respect to the profits, revenue, earnings and/or goodwill of the Merchant as a result of services provided and its use of the Equipment or any related mechanical, electrical, data, system, processing, errors or failures. The Merchant specifically waives all rights that it has or may have in relation thereto and irrevocably releases and forever discharges the Vendor from and against any such losses or Damages, however caused; and
(c) the Vendor has the right to have access to examine and verify at any reasonable time all records of the Merchant pertaining to Transactions processed through the Equipment; and
20.INDEMNIFICATION – The Merchant shall indemnify and hold the Vendor harmless from and against any and all claims, suits, damages, losses, costs, expenses and fees (including legal fees) incurred directly or indirectly by the Vendor by reason of the Merchant’s failure to utilize the Equipment or the Services in accordance with the terms and conditions of this Agreement, and for any liability to third parties for any injuries or damages not resulting solely from the negligence or wilful misconduct of the Vendor, which result from the provision by the Vendor of the Equipment or Services.
21.ASSIGNMENT – The Merchant may not assign this Agreement without the prior written consent of the Vendor. The Vendor may assign this Agreement at any time.
22.AGENTS OR ASSIGNEES – Any reference to Vendor shall include its agents, subcontractors, officers, employees, affiliates, successors and permitted assigns, as applicable.
23.TERMINATION BY VENDOR – The Vendor may terminate this Agreement, or cease providing the Services in respect of a particular piece of Equipment:
(a) at any time without notice;
(b) if the Merchant has failed to comply with the Requirements;
(c) the Merchant has failed to comply with material terms of this Agreement;
(d) if the Vendor is aware or Emergis has notified the Vendor that the Merchant is in material breach of its obligations under the Acquirer/Merchant Acknowledgement; or
(e) either Emergis or the Vendor notifies the other party that the Merchant represents an unacceptable risk to the integrity of the Services. Termination of this Agreement, or termination of Services in respect of a particular piece of Equipment, does not relieve the Merchant from its obligations to pay applicable fees incurred to the date of termination.
24.TERMINATION BY MERCHANT – The Merchant may only terminate this Agreement by providing at least three (3) months written notice (“Notice’) to the Vendor prior to the completion of the Initial Term or prior to the commencement of a Successive Term. Termination by the Merchant during the Initial Term or without Notice prior to the commencement of a Successive Term will result in the Merchant being charged a $500 early termination fee (“ETF”) per terminal, which fee the Merchant authorizes the Vendor to deduct directly from the Account. A Merchant that does not process a Transaction for ninety (90) consecutive days will be deemed to have terminated the Agreement and be subject to (i) the ETF; or (ii) a reconnection fee of $249.
25.DEACTIVATION BY MERCHANT – Deactivation of the Equipment by Merchant is subject to a fee of $99.
26.TERMINATION NOT TO AFFECT ANCILLARY AGREEMENTS – Termination of this Agreement does not affect any separate agreement regarding the Equipment or Services between the Merchant and a third party.
27.GOVERNING LAW – This Agreement shall be governed by the laws of the Province of Ontario. All disputes relating to this Agreement shall be litigated exclusively in the courts located in the City of Toronto notwithstanding that other courts may have jurisdiction over the parties and the subject matter. Merchant waives, infosar as permitted by law, trial by jury in any litigation arising from or in any way relating to this Agreement. Merchant further agrees not to pursue a claim against Vendor or its assigns as part of a class action or other representative action.
28.ENUREMENT – This Agreement is binding upon the parties hereto and their respective heirs, executors, administrators, legal personal representatives, successors and assigns.
29.ENGLISH LANGUAGE – It is the express wish of the parties hereto that this contract and any related documents other than those which by law must be in French, shall be drawn up in the English language. Il est de la volonté expresse des parties que le présent contrat et tous les documents qui s’y rattachent soient rédiges en langue anglaise, exception faite des documents pour lesquels la loi exige l’usage exclusif du français.
30.INDEPENDENT LEGAL ADVICE – The Merchant acknowledges that it has received, or been afforded the opportunity to receive and has declined to receive, independent legal advice with respect to its rights and obligations under this Agreement.
31.SEVERABILITY – The invalidity or unenforceability of any one or more of the provisions of this Agreement shall not affect the validity or enforceability of any of the other provisions hereof.
32.ENTIRE AGREEMENT – The parties acknowledge that this Agreement comprises the entire agreement between the parties and that there are no representations, warranties, guarantees, terms or conditions, expressed or implied, other than those contained herein and that there are no collateral agreements.
33.ADVERTISING AND DISPLAYS
(a) the Vendor has the right to identify the Merchant as a user of the Equipment and Services in its marketing materials; and (b) wherever possible, Merchant will display Vendor’s trade name and/or logo in the form provided by Vendor.
34.MODIFICATIONS – This Agreement may be modified in whole or in part by the Vendor at any time without notice.
35.PAD AUTHORIZATION AND WAIVER
(a) Merchant agrees that any withdrawal from the Account by Vendor pursuant to this Agreement is a PAD for business purposes as defined under Canadian Payment Association Rule H1 and waives the right to receive advance notice from Vendor of any and all such PADs; and
(b) Merchant authorizes Vendor to originate a PAD to the Account and agrees to cooperate with Vendor to establish and maintain this PAD payment mechanism.
36.TRANSACTION RECEIPTS – Merchant must maintain all receipts for Transactions for not less than one (1) year from the date of Settlement and provide such receipts to the Vendor upon request. Failure to provide such receipts may result in the Transaction being reversed and the dollar value of the Transaction being charged directly to the Merchant.
37.ADMINISTRATIVE FEES – Vendor reserves the right to charge Merchant administrative fees for services requested by Merchant.
38.SURVIVAL – The provisions of s. 16, 17, 18, 19, 35 and 36 shall survive the termination of this Agreement.