PSiGate – Bank of Montreal MasterCard Internet Merchant Agreement
This agreement is made and entered into by and among Bank of Montreal (“Bank”), a Canadian Chartered Bank with a principal office in Toronto, Ontario, Canada; Payment
Services Interactive Gateway Inc. (“PSiGate”), an Ontario corporation with its principal office located in Mississauga, Ontario and the undersigned merchant (“Merchant”). In return
for Bank and PSiGate performing Electronic Merchant Services that Merchant has requested and that are explained in this Agreement, Bank, PSiGate and the Merchant each agree
to the following:
1. Definitions
In this Agreement, the following terms will have the following meanings:
Agreement means this document and related schedules, amendments, notices and revisions.
Authorization means an authorization from a Card Issuer that the Cardholder’s account has sufficient credit available for a Transaction.
Business Day means any day other than a Saturday or a Sunday or a day on which Bank is lawfully closed for business in Toronto, Ontario, Canada.
Card means a valid MasterCard credit card.
Cardholder means a Person to whom a Card has been issued and/or any authorized user of such Card.
Card Issuer means the Bank or other financial institution that issues a Card to the Cardholder.
Chargeback means any Transaction that is reversed by a Card Issuer, leaving Merchant liable for the amount of the Transaction.
Draft Capture means the electronic capture of Transaction data.
Electronic Merchant Services means the electronic credit card authorization, data processing and settlement services (or any other credit card related services)
provided to Merchant by Bank and PSiGate to facilitate Transactions conducted by means of Merchant’s Electronic Purchase Services, as described below.
Electronic Purchase Services means the electronic commerce services utilized by Merchant to transact sales via the Internet.
Fees means the fees other than the Total Discount Rate payable by Merchant to PSiGate, as set out in Schedule A.
Merchant Account means a deposit account with a Canadian financial institution, which Merchant has designated as the account to be debited and credited by PSiGate
for Transactions, Fees, Chargebacks and other amounts due hereunder.
Merchant Discount Rate means the fee Bank charges for the services it provides under this Agreement.
Person means any corporation, partnership association, trust, individual or other entity or organization.
Prohibited Transaction means any Transaction, which constitutes, relates or is ancillary to, in whole or in part:
Pornographic or illicit material of any type
Escort services
Gambling operations, including, without limitation, “virtual casinos”
Ticket factoring
Pyramid selling
Goods or services otherwise prohibited by applicable law or under the rules, regulations or directives of MasterCard International Inc. and any good or service of
a class or type similar to those specified above which is specifically identified by Bank or PSiGate (in their sole discretion) from time to time and at any time upon
notice thereof given hereunder to each other party to this Agreement as constituting a Transaction subject to this definition.
PSiGate Account means the deposit account at Bank operated by PSiGate.
PSiGate Discount Rate means the fee PSiGate charges for the services it provides under this Agreement.
Rolling Merchant Reserve means a fund collected by PSiGate on a semi-monthly basis as a security deposit as set out in Schedule B.
Settlement Account means a deposit account with Bank designated by Merchant as the account to be debited and credited for Transactions, Fees, Chargebacks and
other amounts due hereunder.
Total Discount Rate means the combined Merchant Discount Rate and the PSiGate Discount Rate, as set out in Schedule A.
Transaction means a sale, lease, rental or other offer of goods or services by Merchant, which is facilitated by means of Electronic Purchase Services and is paid for with
a Card or any adjustment or return that is credited to a Card.
Transaction Record means the electronic record of each Transaction, which is electronically sent by Merchant to Cardholder.
User Documentation means all media and written materials, which may include online or electronic documentation, associated with the Electronic Merchant Services.
2. Services To Be Provided
During the term of this Agreement and subject to the other provisions of this Agreement, and unless otherwise specifically agreed to in writing by Bank and PSiGate and
Merchant, Bank and PSiGate shall be the sole provider of, and shall satisfy all of Merchant’s requirements for, Electronic Merchant Services, effected in Canadian dollars.
Any Transactions effected in a currency other than Canadian dollars are not covered by this Agreement.
3. Term of Agreement
a) This Agreement shall remain in full force and effect for an initial term of two (2) years from the date of signing by the Merchant. This Agreement shall be automatically
extended upon the same terms and conditions, subject to the prevailing Total Discount Rates and other Fees on the renewal date (subject to notice by Bank and or
PSiGate to the applicable party or parties of any changes to one or more terms or conditions hereof to be effective at the time of such renewal), for successive one (1)
year terms unless notice of non-renewal or termination is provided by any party as provided herein. Any party may give notice of non-renewal of this Agreement in writing
not more than ninety (90) and not less than sixty (60) days prior to any expiration date. Subject to paragraph (6) below, if any party shall default in the performance of any
of its obligations hereunder and shall fail or refuse to remedy such default within ten (10) days after written notice, or if any party shall breach any representation or
warranty made herein, any other party may terminate this Agreement immediately upon written notice to the other parties.
b) This Agreement may be terminated by a party effective immediately, without prior notice, by fax or phone call in the event that: (i) another party files a petition of
bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors, or makes an
assignment for the benefit of creditors; (ii) a receiver, trustee or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or
proceeding under bankruptcy or insolvency laws in instituted against such party and is not stayed, enjoined or discharged within sixty (60) days; (iv) such party adopts a
resolution for discontinuance of its business or for its dissolution;
c) Bank or PSiGate may immediately and without prior notice suspend or terminate this Agreement, freeze Merchant Accounts or take other steps necessary, if (i) Merchant
misrepresents itself in this Agreement or its application to Bank and/or PSiGate in any way; (ii) Merchant does not observe or act according to the terms of this Agreement
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(ii) Bank and/or PSiGate feel insecure or unsafe about Merchant’s business practices. Bank or PSiGate may also terminate this Agreement on thirty (30) days notice to
Merchant if Bank and PSiGate terminate their business relationship.
d) The obligations of the undersigned parties for any Transaction completed on or prior to the date of termination of this Agreement shall survive such termination.
e) In the event of termination of this Agreement, the Merchant will return all forms, and other material bearing Bank’s and/or PSiGate’s trademark, the MasterCard name or
logo, or any representation of these to Bank or PSiGate, as the case may be, without delay.
4. Confidential Information
Merchant agrees that it will not, without the Cardholder’s consent, share MasterCard account number information with any third party or Person other than otherwise provided
herein.
Without limiting the generality of foregoing, each of Merchant, Bank and PSiGate shall maintain as confidential all records, data, correspondence and other information
furnished by Bank or PSiGate, or which is received from any other source or compiled by or on behalf of either party, at any time and by whatever means with respect to each
Cardholder, use of its Card, Card account number or other Card account or personal information of such Cardholder and/or its Transactions hereunder, including, without
limitation, the terms of this Agreement and all systems required for the authorization, processing and settlement of Transactions.
Merchant acknowledges that Bank and PSiGate are in possession of personal information relating to Merchant and consent to the use by Bank and PSiGate to the use of
such information as appropriate in the normal course of their respective businesses including, without limitation, adding Merchant to their terminated merchant files.
5. Authorizations
a) Merchant shall submit all Transactions to the Bank for Authorization and shall obtain an Authorization or declined Authorization.
b) Merchant shall submit for settlement only those Transactions that represent valid Transactions between Merchant and a Cardholder.
c) Merchant acknowledges that an Authorization indicates only the absence of negative credit status at the time of Authorization. It does not necessarily protect Merchant
from Chargebacks.
6. Settlement
a) Merchant agrees to establish and maintain the Merchant Account.
b) Merchant shall not submit for settlement any Transaction for which it has not received Authorization or for which fulfillment has not been completed.
c) Upon completion of a Transaction, Merchant shall send a Transaction Record to the Cardholder.
d) Merchant shall submit Transactions to Bank for settlement within three (3) Business Days of receipt of authorization, either directly, through Draft Capture, or, at the sole
option of PSiGate, through the services of a third party provider ("Provider").
e) In the event of Draft Capture, Bank agrees to settle Transactions delivered by Draft Capture on the same Business Day, if Bank receives the Transaction Record by 11:45
p.m. Eastern Time. Otherwise, Bank will settle Transactions on the next Business Day.
f) Should a Provider be used, PSiGate and Merchant agree that Provider will transmit Transaction Records to Bank’s data centre on magnetic tape. Magnetic tapes will be
produced according to the standards of the Canadian Bankers Association. Bank will receive a written total of the Transaction Records listed on the magnetic tape. The
Provider will keep a copy of each magnetic tape for at least ten (10) business days after sending it to Bank. Transaction Records delivered by Provider before 2:00 p.m.
Eastern Time will be settled on the same day; otherwise they will be settled on the next Business Day. Bank may reject a Transaction Record if (i) the magnetic tape on
which it is recorded does not comply with the standards of the Canadian Banker’s Association or (ii) the Transaction Records listed on the magnetic tape do not balance
correctly. If, in the opinion of the Bank, the number of rejected Transaction Records on a single magnetic tape is excessive, Bank may refuse to credit the Settlement
Account until an acceptable replacement magnetic tape is provided.
g) Bank will deposit all funds to the Merchant’s Settlement Account.
h) Merchant directs Bank to transfer to the PSiGate Account the value of all Transactions, net of the Merchant Discount Rate. PSiGate will deposit such funds into
Merchant’s Merchant Account under the terms set out in Schedule B, net of the PSiGate Discount Rate, all Fees and the Rolling Merchant Reserve.
i) All deposit figures are subject to Bank’s final audit. If there are any inaccuracies, Bank and/or PSiGate will be entitled to Chargeback or credit the appropriate Merchant
Account.
j) Upon transfer of settled funds to PSiGate Account, PSiGate will maintain Merchant’s funds in trust subject to the removal of the PSiGate Discount Rate and all Fees, until
PSiGate credits the Merchant Account as set out in Schedule B. Bank is in no way liable for any deposits or dispensing of transferred funds into the Merchant Account.
k) PSiGate will provide monthly statements to Merchant, which will include a list of all Transactions, the Total Discount Rate and Rolling Merchant Reserve applied to such
Transactions and the Fees charged. Merchant will review all Transactions listed in each statement and within thirty (30) days of receipt notify PSiGate in writing of any (a)
suspected omissions, (b) incorrect debits or (c) inaccurate Transactions. In the event Merchant does not so notify PSiGate, Merchant is deemed to agree that all such
Transactions and other listed data are correct and that PSiGate and Bank are released from any claim relating to any item on such statement. PSiGate will ensure that
Bank is made aware of any dispute within one Business Day of receiving notice of the dispute.
7. Terms of Operation
It is agreed that:
i. Merchant may sell goods or services to Cardholders through its Electronic Purchase Services to Cardholders providing their Card numbers;
ii. Merchant shall not conduct Transactions at prices that exceed Merchant’s posted prices for such goods or services;
iii. Merchant shall not impose any fees or other surcharges for the use of a Card as payment;
iv. Merchant shall not offer discounts or incentives to encourage Cardholders to pay by means other than a Card;
v. Merchant’s acceptance practices and procedures will not discriminate against or discourage the use of Cards in favour of any other card brand;
vi. Merchant shall not set a minimum dollar limit on Transactions;
vii. Merchant shall not discriminate against a Transaction in favour of one completed with any other form of payment; and
viii. Merchant shall not conduct any Prohibited Transaction, nor will Bank and/or PSiGate perform any aspect of the Electronic Merchant Service in connection with a
Transaction, which is, to its knowledge or belief on reasonable grounds, a Prohibited Transaction.
ix. If any goods are accepted for return or any services are terminated or cancelled or any price adjustment is allowed, Merchant shall make the refund, replacement or
adjustment to the Cardholder by crediting the Cardholder. Merchant shall not make any cash refund to the Cardholder but shall deliver to the Cardholder a Transaction
Record of each refund completed so as to include the date of the Transaction; a description of the goods or services involved; the dollar amount of the credit granted,
including all applicable taxes; and Merchant’s name and contact information.
x. The amount of any refund shall not exceed the amount shown as the total on the Transaction Record except by the exact amount required to reimburse the Cardholder
for postage paid by the Cardholder to return goods in accordance with a policy applied consistently by Merchant to all Cardholders.
xi. Merchant shall not execute a Transaction to replace funds that are unable to be collected from another payment method, such as to cover a returned cheque.
xii. Merchant agrees to retain an electronic copy of each completed Transaction Record for a minimum of 18 months from the date of the Transaction.
xiii. Merchant agrees to provide Bank and/or PSiGate with a Transaction Record of any Transaction within eight (8) days of Bank’s and/or PSiGate’s request therefore. If
Merchant fails to do so or to cooperate with Bank and/or PSiGate, Bank and/or PSiGate may refuse to credit Merchant Account for the amount of the Transaction, or
Chargeback the Transaction to the Merchant Account if Bank and PSiGate have already credited such account for such Transaction.
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xiv. Merchant shall not submit for settlement any Transaction resulting from goods sold or services performed (or alleged to have been sold or performed) by parties other
than Merchant. Merchant shall not receive payment from any party except Bank and PSiGate for any Transaction completed using the Electronic Merchant Services.
xv. Merchant agrees to cooperate with Bank and PSiGate in investigating any Transaction.
8. Chargebacks
Even if Merchant may have been granted an Authorization for a Transaction, Bank may refuse to credit the appropriate Settlement Account for the amount of the
Transaction, or may Chargeback all or a part of the Transaction to the Merchant by debiting the PSiGate Account (or if there are insufficient funds in the PSiGate Account, the
Merchant Account) in its sole discretion, if:
i. The Transaction is or is claimed by the Cardholder to be, fraudulent or unauthorized;
ii. The goods or services referred to in the Transaction Record have been returned to Merchant or were not received by the Cardholder;
iii. The Cardholder has received a refund notice issued by Merchant for which the Cardholder has not been compensated;
iv. The goods or services referred to in the Transaction Record have not been received by the Cardholder or are claimed by the Cardholder to be unsatisfactory;
v. The total dollar amount shown on the Transaction Record is, or is claimed by the Cardholder to be, larger than the amount approved by the Cardholder;
vi. The Transaction Record is incomplete in any respect;
vii. The Card used in the Transaction was expired or not yet valid at the time of the Transaction;
viii. The Transaction includes an unauthorized cash advance that Merchant has made to a Cardholder;
ix. The Transaction is for any reason illegal, null, or invalid;
x. The Transaction represents a previously settled Transaction, which has been subject to a Chargeback to Merchant;
xi. Merchant has previously submitted the Transaction for settlement or PSiGate has already credited the Merchant Account for the Transaction;
xii. The Transaction submitted for settlement is fictitious, or Merchant has otherwise defrauded or attempted to defraud Bank or PSiGate;
xiii. Merchant fails to comply with the terms of this Agreement;
xiv. Merchant submits for settlement a Transaction representing goods sold or services performed (or alleged to have been sold or performed) by parties other than
Merchant;
xv. Merchant submits for settlement a recurring Transaction after receiving notification from the Cardholder to cancel such future Transactions;
xvi. An electronic copy of the Transaction Record is not provided to Bank or PSiGate within eight (8) days of a request therefore;
xvii. The currency of the Transaction is not in Canadian dollars;
xviii. Merchant fails to submit the Transaction for settlement within three (3) Business Days of receiving authorization;
xix. Merchant, in any other way, has not complied with the terms of this Agreement; or
xx. The Cardholder disputes a Transaction for any reason whatsoever.
9. Relations with Cardholders
Merchant agrees to settle all Cardholder claims and disputes about a Transaction directly with the Cardholder. Merchant agrees that Bank and PSiGate shall not be
responsible for attending to and servicing any Cardholder queries, complaints and requests regarding goods and services purchased with a Card.
10. Debits, Fees and Other Charges
a) Merchant unconditionally agrees and promises to pay the Total Discount Rate and Fees for the Electronic Merchant Services. Merchant acknowledges that the Total
Discount Rate and Fees will be deducted from the funds to which Merchant would otherwise be entitled upon the settlement of Transactions. Merchant waives any right of
offset against the Total Discount Rate and any of the Fees.
b) In the event of insufficient funds from Transactions to cover amounts owed by Merchant under this Agreement, the deficit shall constitute a debt of Merchant that is
payable on demand, and Bank and/or PSiGate may, at its option, without prior notice, debit any Merchant Account in the amount of the deficit.
c) If Chargeback volume is excessive, MasterCard International Inc. may impose Chargeback handling fees. Merchant agrees to reimburse Bank for the amount of these and
any other fees imposed by MasterCard International Inc. as a result of Merchant acts or omissions.
11. Security Standards
Merchant shall complete all Transactions utilizing secure socket layer (“SSL”) encryption technology. Bank and/or PSiGate reserve the right in its sole discretion, at any time
and from time to time, upon thirty (30) days notice to Merchant, to change its minimum encryption standard. In the event of any such change in the minimum encryption
standard of the Bank and/or PSiGate, Bank and/or PSiGate shall not be required to perform any aspect of the Electronic Merchant Services for Merchant until Bank and/or
PSiGate are satisfied that Merchant has complied with the applicable modified standard. Notwithstanding the implementation or modification of such minimum standard at
any time, Bank and/or PSiGate makes no representation or warranty to Merchant or as to the effectiveness of the protection provided by such minimum standard, nor as to its
suitability for avoiding, preventing or reducing any cost, loss, damage or expense which is or may be incurred by Merchant as a result of breaches of the prevailing security
system required by Bank and/or PSiGate.
12. Advertising
The Merchant agrees to prominently display on its Internet web sites, standard logos provided by Bank that indicates Cards are accepted by Merchant. The Merchant agrees
that any display or advertising for the Card will be at least as prominent as the display or advertising in respect of any other credit card, except for the Merchant’s proprietary
credit card, if any. Merchant must (i) clearly advertise its refund policy on its web site and (ii) clearly disclose that to Cardholders that Merchant is responsible for payment
transactions, products and services, customer service, dispute resolution, and all terms and conditions of sale.
Except as otherwise provided, all signs, promotions and advertising material, as well as announcements and press releases, relating in any way to the arrangement covered
by this Agreement shall be approved in writing by all parties; approval shall not be required for the Merchant to use standard Card advertising material supplied by Bank. The
Merchant agrees not to alter, or use without permission, the trademarks of MasterCard International Inc., Bank or PSiGate.
13. Other Responsibilities
a) Merchant agrees to obtain prior written approval before it uses in connection with its business, whether by means of the Internet or any other medium and whether for the
purpose of advertising or otherwise, any names, logos, trade names or service marks or representations of either Bank, PSiGate or any Card Issuer.
b) Merchant agrees that Bank or PSiGate may refer to Merchant by trade name and trademark and may describe Merchant's business in Bank's or PSiGate’s marketing
materials and web site. Merchant hereby grants Bank’s or PSiGate’s a limited license to use any Merchant trade names and trademarks solely in connection with the
rights granted to Bank or PSiGate pursuant to this section. All goodwill associated with Merchant’s trade name and trademarks will inure solely to Merchant. Merchant
hereby consents to Bank's or PSiGate’s use of Merchant's name and logo in Bank's or PSiGate’s customer lists, marketing materials, press releases and announcements.
c) For so long as this Agreement is in effect, Merchant agrees that Bank and/or PSiGate may obtain whatever commercial and credit information Bank and/or PSiGate
deems appropriate with respect to Merchant. Merchant hereby authorizes Bank and/or PSiGate to disclose or share information about Merchant to any Person or third
parties such as credit bureaus and other financial institutions, who Merchant may have financial dealings with. Merchant agrees to furnish Bank and/or PSiGate with such
financial statements and information concerning Merchant, Merchant’s business, or Merchant’s affiliates as Bank and/or PSiGate may reasonably request.
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d) Merchant agrees not to make any changes to its Merchant Accounts without giving at least 10 Business Days' prior written notice thereof to PSiGate. Upon receipt of this
notice, PSiGate will make Bank aware of such notice within one Business Day.
e) Merchant represents, warrants and covenants that: (i) its use of the Electronic Merchant Services and its web site shall comply with any and all applicable laws; (ii) its web
pages shall not contain and Merchant shall not propagate, distribute, house, process, store or otherwise in any way handle material that is pornographic, obscene, lewd,
lascivious, excessively violent, harassing, harmful, or offensive, that is disparaging or defamatory, that invades any right of privacy or that infringes upon any intellectual
property rights of any Person; (iii) it shall not transmit or store any information, data or material in violation of any law; (iv) it shall comply with all applicable rules and
regulations related to credit card processing, settlement and clearing of payment transactions; (v) it will not use the Electronic Merchant Services for illegal purposes, or to
interfere with or disrupt other network users, network services or network equipment; (vi) it shall comply with all laws governing the transmission, storage, production,
and/or retrieval of electronic information; (vii) it will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information
provided pursuant to this Agreement to anyone outside the United States without first complying with all export control laws and regulations which may be imposed by
Canada and or the United States, and any country or organization of nations within whose jurisdiction Merchant operates or does business.
f) Merchant shall be solely responsible for all telephone, computer, hardware and software equipment and services necessary to access and utilize the Electronic Merchant
Services.
g) Merchant shall not (and shall not knowingly cause or permit anyone to) reproduce or prepare any derivative work based upon the Electronic Merchant Services or any
other proprietary information belonging to Bank and/or PSiGate. Merchant agrees to secure and protect tangible forms of the software, which comprise the Electronic
Merchant Services, the User Documentation and other proprietary information belonging to Bank and/or PSiGate and its licensors so as to maintain the rights of Bank
and/or PSiGate under and its licensors therein. Merchant shall not (and shall not knowingly cause or permit anyone to) disassemble, decompile, decrypt, extract, or
reverse engineer the software which comprise the Electronic Merchant Services, or otherwise apply any procedure or process to the Electronic Merchant Services or the
software which comprise the Electronic Merchant Services, in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listing for
the software which comprise the Electronic Merchant Services, or any procedure, process or other material embodied in the Electronic Merchant Services or the software
which comprise the Electronic Merchant Services.
h) If an individual, Merchant certifies that he or she has reached the age of majority.
i) Merchant agrees that the User Documentation shall be disclosed only to those of its employees as are necessary to facilitate the Electronic Merchant Services, shall not
be disclosed to third parties without the written consent PSiGate and shall be kept in a safe and secure location.
j) Merchant must advise PSiGate of any change of ownership or to the nature of its business. PSiGate must inform Bank of any such change within one Business Day of
notice thereof.
14. Limitations on Liability
a) Bank and PSiGate are not responsible for any claims, losses, costs, damages or expenses caused by delaying or failing to perform any of the Electronic Merchant
Services described in this Agreement.
b) Bank and PSiGate shall not be responsible for any inability to provide the Electronic Merchant Services or Merchant's inability to access or utilize the Electronic Merchant
Services caused by Merchant's inability to access or interact with any other service providers, networks, users or informational or computing resources through the
Internet, services provided by other service providers, including acts or omissions of communications carriers or suppliers, software or hardware failure of parties other
than Bank or PSiGate, performance impairments caused elsewhere on the Internet, scheduled downtime to implement new features, new releases, software patches or
system maintenance.
c) The Electronic Merchant Services include the ability to transmit data beyond Bank’s or PSiGate's networks, through other networks, public and private. Use of or presence
on other networks may require approval of the respective network authorities and will be subject to any acceptable usage policies such networks may establish. Bank and
PSiGate shall not be responsible for obtaining such approvals or for violation of such policies.
d) Merchant's sole and exclusive remedy in the event of its dissatisfaction with Bank, PSiGate, the Electronic Merchant Services or any alleged breach of this Agreement by
Bank or PSiGate shall be to terminate this Agreement.
e) Under no circumstances shall Bank or PSiGate be liable to Merchant for indirect, incidental, special, consequential, punitive or exemplary damages of any kind
whatsoever, even if advised of the possibility of such damages arising, including, but not limited to, loss of revenue, profits or business, injury to any Merchant relationship
with customers, costs of procurement of substitute goods or services, costs of delay, costs of lost or damaged data or documentation, or any liability of Merchant to third
parties arising from any source, out of or related to: (i) loss of data; (ii) loss of or damage to software or hardware; (iii) loss or liability resulting from access delays or
access interruptions; (iv) loss or liability arising from computer viruses; (v) loss or liability resulting from data non-delivery or data misdelivery; or (vi) any other loss or
liability resulting from the negligent acts and/or omissions of Bank or PSiGate or other merchants, loss and liability resulting from acts of God.
f) Under no circumstances shall Bank or PSiGate be liable to Merchant under any contract, negligence, strict liability or other legal or equitable theory for any amounts in
excess of the aggregate of the Total Discount Rate and the Fees paid by Merchant hereunder during the twelve-month period prior to the date the cause of action arose.
15. Indemnification
Merchant shall indemnify and hold harmless Bank and/or PSiGate, its affiliates and its licensors from and against any and all losses, liability, claims, damages, costs and
expenses, including reasonable legal fees, arising out of any and all third party suits or proceedings based upon any act or omission by Merchant arising out of a breach of
this Agreement or in connection with the Electronic Merchant Services. Bank and/or PSiGate, at its option, may defend or settle any such suit or proceeding on Merchant's
behalf.
16. General
a) The parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give any party the power to
direct or control the daily activities of any other party, or to constitute any of the parties as principal and agent, employer and employee, franchisor and franchisee,
partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this
Agreement, neither party grants any other party the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf
of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release or waive
any right, title or interest of such other party.
b) This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and each
party hereby submits to the exclusive jurisdiction of the courts of the Province of Ontario.
c) This Agreement shall be binding upon the parties and their successors and assigns. This Agreement may not be transferred or assigned by Merchant and any attempts by
Merchant to assign any of its rights or delegate any of its duties hereunder shall be null and void. This Agreement shall inure to the benefit of and bind Bank and/or
PSiGate and Merchant and any or all of their rights and obligations to their respective successors and assigns. Bank may assign this Agreement upon ten (10) days
written notice to Merchant and PSiGate.
d) Merchant warrants and represents that its signatory whose signature appears below duly authorized by all necessary corporate action to execute this Agreement.
e) Bank and/or PSiGate shall not be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes,
revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of Bank and/or PSiGate.
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f) This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Each
party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. The
headings in this Agreement are intended for convenience of reference and shall not affect its interpretation. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all such counterparts shall constitute one and the same Agreement.
g) This Agreement may not be modified or amended, including by custom, usage of trade or course of dealing, except by an instrument in writing signed by duly authorized
officers of each of the parties hereto. The waiver by any party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a
waiver of any subsequent breach of such provision or the waiver of the provision itself.
h) The provisions of this Agreement relating to confidentiality, reverse engineering and indemnification shall survive any termination or expiration of this Agreement.
i) If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
j) Except as otherwise provided herein, any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing to the
address set forth below and shall be deemed to have been delivered and given for all purposes on the delivery date, if delivered personally to the party to whom the same
is directed, one Business Day after deposit with a commercial overnight carrier, with written verification of receipt and upon completion of transmission if sent via
telecopier with confirmation of successful transmission.
k) Each provision of this Agreement shall be fairly interpreted and construed in accordance with its provisions and without any strict interpretation or construction in favour of
or against either party.
l) In addition to PSiGate, one or more affiliates of PSiGate may assist in providing web services and local support functions in connection with this Agreement.
m) Time is of the essence for the purpose of this Agreement.
This Agreement among Merchant, Bank and PSiGate is executed on behalf of each party as follows:
Agreed to by:
_____________________________________________ PAYMENT SERVICES INTERACTIVE GATEWAY INC.
Merchant Name 6725-6 Millcreek Drive
Mississauga, Ontario
L5N 5V2
_____________________________________________
Address
_____________________________________________ _________________________________________
By, Title (type or print) PSiGate Authorized Signature (1)
_____________________________________________ ________________________________________
By (authorized signature) Name and Title (type or print)
_____________________________________________ _________________________________________
Date PSiGate Authorized Signature (2)
_________________________________________
Name and Title (type or print)
_____________________________________________
Bank of Montreal
_________________________________________
Date
______________________________________________
Address
______________________________________________
By, Title (type or print)
_____________________________________
By (authorized signature)
_____________________________________
Date
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Schedule A
FEES – Canadian Funds
Total Discount Rate: 3.95% Of the gross sales value (inclusive of all taxes, shipping and
other charges) of each settled Transaction
Chargeback Fee: $25.00 Per Chargeback
Wire Transfer: $25.00 Per request by Merchant
Electronic Funds Transfer: No Charge
Schedule B
SETTLEMENT TERMS
A. PSiGate will deposit to the Merchant Account semi-monthly, on the 15th and the last day of each month, all funds to which the
Merchant is entitled, on the terms and conditions contained in this Agreement.
B. In particular, Transactions settled by the Bank from:
(a) The 1st to the 15th days of the month, shall be settled by PSiGate on the last day of that month, and
(b) The 16th to the last day of the month, shall be settled by PSiGate on the 15th day of the following month.
C. Merchant agrees that PSiGate will retain a holdback equal to 5% of each semi-monthly settlement as a Rolling Merchant Reserve.
The Rolling Merchant Reserve will be adjusted semi-monthly and each holdback will be held for 90 days on a rolling basis, and then
returned to the Merchant by being credited to Merchant Account.
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