MERCHANT APPLICATION AND AGREEMENT
This MERCHANT APPLICATION AND AGREEMENT (this “Agreement”) is entered into by and between Home Trust Company (“Home Trust”), and the Merchant identified in this Agreement. Under the terms of this Agreement, Home Trust and Payment Services Interactive Gateway Inc. (“PSiGate”) will be the providers to Merchant of the services necessary to authorize, process and settle all the Merchant’s credit card and Interac/Debit transactions as requested by Merchant in the Application below and as set forth in the Agreement. Home Trust and PSiGate are wholly owned subsidiaries of Home Capital Group Inc. First Data Loan Company, Canada is a party to this Agreement for MasterCard acceptance, and Home Trust is a party to this Agreement for Visa acceptance.
PSiGate SERVICES REQUESTED (Check all that apply): GATEWAY E-TERMINAL MOBILEPAY POS CARD ACCEPTANCE REQUESTED (Check all that apply): VISA MASTERCARD AMERICAN EXPRESS INTERAC ONLINE CURRENCY REQUESTED: CANADIAN DOLLAR U.S. DOLLAR CANADIAN & U.S. DOLLAR
1. MERCHANT INFORMATION
MERCHANT “DOING BUSINESS AS” NAME FULL LEGAL NAME OF CORPORATION OR PARTNERSHIP
PRIMARY CONTACT GST# BUSINESS START DATE (DD/MM/YYYY)
BILLING ADDRESS CITY PROVINCE POSTAL CODE
LEGAL ADDRESS (NO P.O. BOX) CITY PROVINCE POSTAL CODE
TELEPHONE NUMBER FAX NUMBER
E-MAIL ADDRESS WEBSITE CID#
2. BUSINESS INFORMATION
TYPE OF OWNERSHIP: SOLE OWNERSHIP PARTNERSHIP JOINT VENTURE LLC PUBLIC CORP PRIVATE CORP GOVT. CORP NON-PROFIT
TYPE OF BUSINESS: RETAIL WHOLESALE RESTAURANT LODGING MAIL ORDER INTERNET BUSINESS TO BUSINESS HOME BASED
DESCRIBE THE GOODS OR SERVICES SOLD:
PERCENT OF BUSINESS: % CARD SWIPE + % MANUAL KEY ENTRY WITH IMPRINT, CARD PRESENT + % MAIL ORDER + % E-COMMERCE = 100%
SEASONAL SALES: YES NO IF YES, WHICH MONTHS AVERAGE SALES VOLUME IN THESE MONTHS
DO YOU CURRENTLY ACCEPT VISA OR MASTERCARD? YES NO IF YES, NAME OF CURRENT PROCESSOR REASON FOR LEAVING IF YES, PLEASE SUBMIT 3 MOST RECENT MONTHS’ STATEMENTS
ANNUAL CREDIT CARD SALES ANNUAL VISA SALES ANNUAL MASTERCARD SALES ANNUAL INTERAC SALES AVERAGE TRANSACTION MAXIMUM TRANSACTION $ $ $ $ $ $
PERCENT OF BUSINESS: [CARD SWIPE %] + [MANUAL KEY ENTRY WITH IMPRINT, CARD PRESENT %] + [MAIL ORDER %] + [E-COMMERCE % = 100% PERCENTAGE OF ORDERS DELIVERED IN: [0 DAYS %] + [1-7 DAYS %] + [8-14 DAYS %] + [15-30 DAYS %] + [30+ DAYS %] = 100% AVERAGE NUMBER OF DAYS TO PREPARE SHIPMENTS FOR DELIVERY TO CUSTOMER FROM DATE OF ORDER: ARE CUSTOMERS REQUIRED TO PROVIDE A DEPOSIT? YES NO WHAT PERCENT OF THE TOTAL SALE IS REQUIRED? % WHAT PERCENT OF YOUR CREDIT CARD TRANSACTIONS REQUIRE A DEPOSIT? % DO YOU HAVE A REFUND POLICY FOR YOUR ONLINE TRANSACTIONS? YES NO TERMS? CHECK THE APPLICABLE REFUND POLICY: CASH EXCHANGE STORE CREDIT VISA/MC CREDIT OTHER WITHIN HOW MANY DAYS DO YOU PROCESS REFUND TRANSACTIONS? 0-3 DAYS 4-7 DAYS 8-14 DAYS OVER 14 DAYS
3. OWNERS AND OFFICERS (Must equal 51% or greater ownership)
NAME TITLE PERCENT OF OWNERSHIP
RESIDENT ADDRESS CITY PROVINCE POSTAL CODE
HOME TELEPHONE SOCIAL INSURANCE NUMBER(OPTIONAL) DATE OF BIRTH DRIVER’S LICENSE NO.
NAME TITLE PERCENT OF OWNERSHIP
RESIDENT ADDRESS CITY PROVINCE POSTAL CODE
HOME TELEPHONE SOCIAL INSURANCE NUMBER(OPTIONAL) DATE OF BIRTH DRIVER’S LICENSE NO.
HAVE ANY OF THE PRINCIPALS EVER FILED FOR BANKRUPTCY?(OPTIONAL) YES NO
IF YES, NAME DATE FILED: DATE DISCHARGED:
Merchant Application & Agreement (Gateway-MIDs) v6-09 Page 1 of 9 Merchant Initials: ______
MERCHANT APPLICATION AND AGREEMENT 4. BANKING AND TRADE REFERENCE INFORMATION BANK NAME: CONTACT: PHONE: TRANSIT NO.:
STREET ADDRESS: CITY: PROVINCE: POSTAL CODE:
TRADE NAME: CONTACT: PHONE:
STREET ADDRESS: CITY: PROVINCE: POSTAL CODE:
TRADE NAME: CONTACT: PHONE:
STREET ADDRESS: CITY: PROVINCE: POSTAL CODE:
5. RATES AND FEES
PLAN TYPE: NEW EXISTING MERCHANT # DISCOUNT RATE* PER TRANSACTION BANK NAME TRANSIT # ACCOUNT #
VISA 2.60 % $
MASTERCARD 2.60 % $
AMERICAN % $ EXPRESS
INTERAC/IOP % $
OTHER % $
OTHER FEES: (IF APPLICABLE)
CHARGEBACK ADMIN FEE (PER APPLICATION FEE (ONE TIME)** $ 50.00 MINIMUM MDR MONTHLY FEE $ 10.00 OCCURRENCE) $ 15.00
NON-SUFFICIENT FUNDS (PER INTERAC SET UP FEE $ ANNUAL FEE $ 0.00 OCCURRENCE) $ 25.00
OTHER: MAINTENANCE NON-QUALIFIED TRANSACTION ADMINISTRATION FEE $ SURCHARGE % 1.0% FEE $ 15.00
MASTERCARD FOREIGN TRANSACTION FEE (PER MONTHLY STATEMENT FEE $ TRANSACTION) $0.125 USD ($0.17 CDN) OTHER: $
SMALL TICKET SURCHARGE (FOR TRANSACTIONS LESS MONTHLY SETTLEMENT FEE $ THAN CDN $20) $0.20 PER TRANSACTION OTHER: $
PSIGATE FEES: (IF APPLICABLE)
APPLICATION FEE (ONE TIME)** $ 50.00 PER TRANSACTION FEE $ 0.25 OTHER: $
MONTHLY FEE (GATEWAY) $ 30.00 MONTHLY FEE (E-TERMINAL) $ 50.00 MONTHLY FEE (MOBILEPAY) $
* Discount Rate may be subject to Association and foreign assessment fees and to non-qualified interchange fees as set IMPRINTER TYPE: STANDARD MOBILE forth under Section 46 of the Terms and Conditions. ** Application Fee is non-refundable. IMPRINTER PLATE: YES NO $ 6. PRE-AUTHORIZED DEBIT AGREEMENT
PLEASE DEBIT/CHARGE MY CREDIT CARD FOR INVOICED AMOUNTS – NAME ON CREDIT CARD:
CREDIT CARD NUMBER: EXPIRY DATE:
PLEASE DEBIT/CHARGE MY BANK ACCOUNT FOR INVOICED AMOUNTS VOID CHEQUE ATTACHED
Merchant agrees that a Pre-Authorized Debit for the set-up, monthly and transaction fees in the amount stated in this Agreement, with reasonable latitude for minor adjustments, may be drawn from my Credit Card or Bank Account given in this Application, beginning as of the date stated in this Agreement. Merchant hereby authorizes Home Trust to credit and debit Merchant's designated bank account(s) in accordance with the PAD Agreement and represents and warrants that all persons who are required to sign on the account(s) have signed below. 7. SERVICE INFORMATION
AUTHORIZED CONTACT NAME: AUTHORIZED CONTACT NAME:
MAIN CONTACT EMAIL: BILLING CONTACT EMAIL:
TECHNICAL CONTACT EMAIL: FUNDING CONTACT EMAIL:
SHOPPING CART: API:
REFERRED BY: PSiGate SALES ASSOCIATE:
Merchant Application & Agreement (Gateway-MIDs) v6-09 Page 2 of 9 Merchant Initials: ______
MERCHANT APPLICATION AND AGREEMENT 8. APPLICATION TERMS FOR MERCHANTS AND GUARANTORS - As the person signing below on behalf of the business designated on the above Application ("Merchant"), I certify that I am an owner, partner or officer of the Merchant and have been duly authorized to sign this Merchant Application and Agreement on behalf of the Merchant. Merchant and each guarantor signing below ("Guarantor") hereby acknowledge that at the time of application they have each received and read (1) this Merchant Application and Agreement, (2) the Personal Guarantee, (3) the Pre-Authorized Debit Agreement (the "PAD Agreement"), (4) Terms and Conditions for Merchant Agreement and (5) Rates and Fees. Merchant and Guarantor acknowledge that once your Merchant Application and Agreement is approved, Home Trust shall promptly provide to the Merchant and the Guarantor (6) the Merchant Operating Guide (the "Operating Guide").
BY ACCEPTING PAYMENT INSTRUMENTS AND REMITTING TRANSACTION DATA, YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED AND READ AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN NUMBERS (1) THROUGH (6) ABOVE. IF YOU DO NOT WISH TO ACCEPT ALL OF SUCH TERMS, YOU MUST NOT ACCEPT PAYMENT INSTRUMENTS OR SUBMIT TRANSACTION DATA OR USE THE MERCHANT NUMBER ASSIGNED TO YOU AND YOU MUST NOTIFY US IMMEDIATELY AND RETURN ALL MATERIALS PROVIDED TO YOU. UPON RECEIPT OF YOUR NOTIFICATION, THIS AGREEMENT SHALL BE NULL AND VOID AND WE SHALL HAVE NO OBLIGATION TO YOU WHATSOEVER WITH RESPECT TO ANY TRANSACTION DATA OR OTHERWISE.
Merchant, each Owner and each Guarantor consent to Home Trust or its designees investigating and verifying the credit and financial information of, and obtaining credit reports from credit reporting agencies or credit bureaus on each of the Merchant, Owners and Guarantor (and this is prior written notice for so doing). If the Application is approved, subsequent credit reports may be required or used in connection with the maintenance or renewal of the Agreement. The Merchant, Owners and Guarantors agree that all business references, including banks, may release any and all credit and financial information to Home Trust. Merchant, each Owner and each Guarantor expressly consent to Home Trust's collection and use of Personal Information in accordance with our Privacy Policy and specifically as part of our credit investigation, and acknowledge that your social insurance number, date of birth and driver's license number will be used for credit matching and identity verification. Home Trust may exchange your Personal Information with financial institutions (including the parties to this Agreement) and Associations for the purpose of providing you with the requested products and services and for security measures in relation to your account.
Merchant represents and warrants that all information on this Application, and the related information submitted in conjunction with the Application, is true, complete and not misleading. The Application now belongs to Home Trust. Merchant understands that the application fee is non-refundable. ANY UNILATERAL ALTERATION, STRIKEOVER OR MODIFICATION TO THE PREPRINTED TEXT OR LINE ENTRIES OF THIS MERCHANT APPLICATION AND AGREEMENT SHALL BE OF NO EFFECT WHATSOEVER, AND AT HOME TRUST'S SOLE DISCRETION, MAY RENDER THIS MERCHANT APPLICATION INVALID.
Facsimile and electronic mail versions of executed copies of this Agreement shall be binding and enforceable against the parties and have the same force and effect as if they were original signatures.
Applicable to the province of Quebec only: It is the express wish of the parties that this Application and any related documents be drawn up and executed in English. Les parties conviennent que la présente authorization et tous les documents s'y rattachant soient rédigés et signés en anglais. 9. PERSONAL GUARANTEE In exchange for Home Trust's acceptance of the Agreement, the undersigned Guarantor unconditionally and irrevocably guarantees, jointly and severally, and for Quebec purposes, solidarity, performance of the Merchant's obligations under the Agreement and prompt payment of all sums due under this Agreement, and in the event of default, hereby waives Notice of Default and agrees to indemnify and save Home Trust harmless from and against any and all amounts due from Merchant under the Agreement. Guarantor confirms that this is a Guarantee of payment and not of collection and that Home Trust is relying upon this Guarantee in entering into the Agreement. The Guarantor's obligations under this guarantee are continuing, unconditional and absolute and without limiting the generality of the forgoing shall not be released, discharged, limited or otherwise affected by and the Guarantor hereby waives to the greatest extent permitted by law, any act or omission of any person or any other circumstance whatsoever which might constitute a legal or equitable discharge, limitation or reduction of the Guarantor's obligations hereunder. 10. ACCEPTANCE Merchant: Merchant: Signature______Signature______Print Name Title Date (DD/MM/YY) Print Name Title Date (DD/MM/YY) Guarantor: Guarantor: Signature______Signature______Print Name Title Date (DD/MM/YY) Print Name Title Date (DD/MM/YY) Home Trust Company: First Data Loan Company, Canada by its attorney Home Trust Company: Signature______Signature______Print Name Title Date (DD/MM /YY) Print Name Title Date (DD/MM/YY)
Merchant Application & Agreement (Gateway-MIDs) v6-09 Page 3 of 9 Merchant Initials: ______
MERCHANT AGREEMENT TERMS AND CONDITIONS the use of the Services; (iii) assistance with the interface to PSiGate’s server; (iv) coordination with Merchants’ card processor and bank and communication to the ARTICLE A – DEFINITIONS card processor; (v) assistance with interfacing of the transaction data with legacy systems; (vi) testing of interface to PSiGate’s server; and (vii) training on the use of 1 Account and Transaction Information means information that is necessary the Services. to process Card transactions correctly, including all information recorded electromechanically or otherwise on a Card, and more specifically includes: (i) any 18 “Settlement Account” means a demand deposit account established at a information used to authenticate a Card payment transaction such as, but not limited financial institution capable of receiving credits and debits from Home Trust for the to, payment card number, payment card expiration date, Personal Identification limited purpose of debiting or crediting Merchant for Card transactions under this Number (PIN), Card Verification Value (CVV), Card Verification Value2 (CVV2), Agreement. passwords, pass phrases, digital certificates, and biometric authentication mechanisms, (ii) any information obtained during the processing of a Card payment 19 “Software” means the Services, User Documentation all copyrights, know- transaction that otherwise identifies individual consumers and their purchases. The how, trade secrets, trademarks, service marks, trade names, patents, and other information includes consumer name, purchase description, purchase amount, and proprietary rights. other details of the Card transaction. However, Account and Transaction Information does not include consumer name, purchase description, purchase amount and other 20 “Threatening Condition” means a Merchant’s conduct or Merchant’s details of the Card transaction, if such information is specifically provided by the products which violates applicable law or poses a threat to PSiGate’s systems, cardholder independent of the Card transaction. equipment, processes, or intellectual property.
2 “Card” means any valid credit card or debit card issued by a member of a 21 “Transaction Record” means either a Credit Record or a Sales Record, Card Organization and bearing its respective trade names, trademarks, and/or trade individually or collectively. symbols, that Merchant is approved to accept under this Agreement. 22 “User Documentation” means all materials which may include online or 3 “Card Not Present” or “CNP” transactions means any instance where a electronic documentation associated with the Services, as amended from time to Card transaction is initiated by a cardholder where a physical Card is not presented time. to the Merchant, as in the case of mail orders (“MO”), telephone orders (“TO”), orders via the Internet (“IO”) and pre-authorized orders (“PO”). 23 “Workaround” means the temporary prevention of the reoccurrence of a Failure after implementation of a specific procedural or process change. 4 “Card Organization” means MasterCard, Visa, Interac or any other card organization or the issuer of any other card of any association or network. ARTICLE B – SERVICES
5 “Chargeback” means a Sales Record which is returned to Home Trust after 24 Prior to activation of the Services, Home Trust shall establish an account in it was settled in accordance with the Rules. Merchant’s name. Upon payment of the setup fee, pursuant to the Rates and Fees Section of the Application, the Services shall be activated. Merchant shall select a 6 “Credit Record” means all documents, whether in hard copy or electronic personal password and shall not disclose that password except to Home Trust and form, used to evidence any refund or price adjustment given by Merchant to a persons authorized by Merchant to access Merchant’s account with Home Trust. cardholder for a previous sales transaction, which must conform to the Rules. The Merchant shall be entirely liable for all activities conducted through Merchant’s format for each Credit Record must be approved by Servicers. account.
7 “Effective Date” means the date this Agreement is executed by Home Trust. PSiGate has provided a development and testing environment to the Merchant for the purposes of testing the Services. Upon the Merchant placing the Services into 8 “Failure” means the Services do not substantially perform in accordance with live production the Merchant agrees that the Services are satisfactorily performing, the User Documentation. free of Failure, and in accordance with the User Documentation.
9 “Fees” means discount fees, transaction fees, foreign assessment fees, non- 25 PSiGate will provide Merchant with the Services in accordance with the User qualified interchange fees. Documentation. Home Trust reserves the right to change any aspect of the Services, including, without limitation, Fees, terms and conditions of this Agreement 10 “Permanent Fix” means a fully tested and quality controlled error correction and the characteristics of the Services, upon 5 days advance notice. Notice of to a Failure in the Services. change as provided in this section shall be deemed to have been given upon electronic posting on PSiGate’s network at www.psigate.com for a period of not less 11 “Relief” means an immediate solution or Permanent Fix to a Failure or a than seven consecutive days. Merchant’s continued use of the Services following Workaround that avoids the Failure or reduces the impact of such Failure until such notice of any such revision in the foregoing manner shall be conclusively deemed time that a Permanent Fix is available, but excludes recovery or restoration of a acceptance of all of such revisions. system database or similar task. 26 PSiGate grants Merchant a non-exclusive, non-transferable, revocable, 12 “Reserve Account” means those funds held at a bank for the purposes set limited sub-license for a term of two years from the first day of the month in which forth in Section 77. Merchant accesses the Services in either test or production mode to use the Software. Merchant agrees that PSiGate and its licensors are the sole owners of all 13 “Rules” means the written rules and regulations imposed or adopted by any right, title and interest in and to the Software. Merchant shall not commit any act Card Organization as the same may be amended from time to time. that might prejudice or adversely affect the validity of such ownership. Merchant may make a reasonable number of copies of User Documentation for use only by 14 “Sales Record” means all documents, whether in hard copy or electronic Merchant and its employees. form, used to evidence the sale of Merchant’s goods and/or services through the use of Cards. The format for each Sales Record must be approved by Servicers. PSiGate shall be entitled to create, distribute and sub-license aggregate statistical and database compilations derived from Merchant data and Merchant’s customers 15 “Servicers” include but are not limited to Home Trust, PSiGate and First data, such as demographics, site traffic, viewing and navigation patterns, and Data Loan Company Canada (“FDLCC”). transaction characteristics.
16 “Services” means access to, interface with and processing of Card 27 Merchant agrees that Home Trust and PSiGate may refer to Merchant by authorization and settlement transactions of Merchant’s customers. trade name and trademark and may describe Merchant’s business in Home Trust and PSiGate’s marketing materials, press releases, announcements and web site. 17 “Services Support” includes, without limitation, the provision of: (i) relief to Merchant grants Home Trust and PSiGate a limited license to use any Merchant reported and documented errors in the Software; (ii) answers to questions regarding trade names and trademarks solely in connection with the rights granted to Home
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Trust and PSiGate pursuant to this section. All goodwill associated with Merchant’s 34 Merchant is required to follow and comply with the Rules. The Card trade name and trademarks will inure solely to Merchant. Merchant may display the Organizations may impose different compliance requirements on different types and slogan “Enabled by PSiGate”, or any other PSiGate slogans together with the levels of Merchants. The Card Organizations may impose restrictions, fines, or PSiGate logo, or any other PSiGate trademark or service mark or logo, on prohibit Merchant from participating in Card Organization programs if it is Merchant’s web site or marketing literature only after obtaining PSiGate’s written determined Merchant is non-compliant with such programs. Merchant understands approval. All goodwill associated with PSiGate’s trade name, trademarks, slogans that it must be in compliance with data security regulations for its type or level of and logos will inure solely to PSiGate. Merchant as defined by the Card Organizations security procedures as well as comply with general security procedures. Servicers will endeavor to provide ARTICLE C - MERCHANT’S RESPONSIBILITIES Merchant with amended operating procedures outlining the various Card 28 Merchant represents, warrants and covenants that: (i) its use of the Services Organization requirements with regard to data security, and other matters, pursuant and Merchant’s web site shall comply with all applicable laws; (ii) its web pages to the terms of this Agreement. Merchant shall maintain compliance with all Card shall not contain and Merchant shall not propagate, distribute, house, process, store Organization, and PCI Data Security Standards, LLC procedures and regulations, or otherwise in any way handle material that is pornographic, obscene, lewd, and to pay any and all fines levied by the applicable Card Organization for its non- lascivious, excessively violent, harassing, harmful, offensive, disparaging or compliance. 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 Servicers may in their sole discretion, suspend or terminate card processing or material in violation of any international, federal, provincial, state or local services under the Agreement for any data security compromise. Notwithstanding regulation or law; (iv) it shall comply with all applicable Rules; (v) it will not use the anything in this Agreement to the contrary, Merchant agrees to indemnify and hold Services for illegal purposes, or to interfere with or disrupt other network users, Servicers harmless from and against all losses, liabilities, damages and expenses network services or network equipment; (vi) it shall comply with all local, provincial, (including lawyers’ fees and collection costs) brought by a third party resulting from state and federal laws governing the transmission, storage, production, and/or Merchant’s failure to comply with the Rules, and in particular Card Organization data retrieval of electronic information; and (vii) it will not export, re-export, transfer, or security rules. make available, whether directly or indirectly, any regulated item or information provided pursuant to this Agreement to anyone without first complying with all export Operating Guide; Rules control laws and regulations which may be imposed by the United States, Canada and any country or organization of nations within whose jurisdiction Merchant 35 You agree to comply with all requirements of this Agreement and the operates or does business. Operating Guide. You also agree to comply with the Rules, including but not limited to the information available on the following websites: 29 Merchant represents and warrants that it is a single business entity and is not comprised of more than one business unit which: (i) must provide separate financial http://www.mastercard.com/ca/merchant/en/getstarted/rules.html reports at Merchant’s bank; (ii) are located at different geographical locations; (iii) http://corporate.visa.com/pd/rules/main.jsp are listed as separate business units in either Merchant’s financial statements or that of Merchant’s parent organization; or (iv) carry separate financial accountability 36 The Card Organizations have established guidelines, merchant monitoring within the Merchant’s organization or by Merchant’s bank. Merchant also represents programs and reports to track merchant activity such as, but not limited to excessive and warrants that it has only one web storefront, one Merchant identification number Credits and Chargebacks, and increased deposit activity. In the event you exceed and one account number. Merchant agrees that the Services shall be utilized by the guidelines or submit suspicious transactions as identified by a Card Merchant on one server only, utilizing computer equipment owned by, leased to or Organization or any related program or reports, you may be subject to: (i) operating operated for the benefit of Merchant. procedure requirement modifications; (ii) incremental Chargebacks and/or fees; (iii) settlement delay or withholding; (iv) termination of this Agreement; and/or (v) audit 30 Merchant shall be solely responsible for all telephone, computer, hardware and imposition of fines. and software equipment and services necessary to access and utilize the Services. Merchant shall bear all collection risk (including, without limitation, card fraud and Trademarks any other type of credit fraud or Merchant disputes including chargebacks) with respect to sales of its products or services and shall bear all responsibility and 37 Merchant’s use of the Card Organization trademarks must comply with all liability for the proper payment of all taxes which may be levied or assessed applicable requirements of the Rules. Merchant’s use or display of the trademarks (including, without limitation, sales taxes) in respect of sales of its products or will terminate upon termination of this Agreement or upon notification by the Card services. Merchant is responsible for insuring that the cardholder understands that Organizations that Merchant must discontinue such use or display. the Merchant is responsible for the transaction, including goods and services related to customer service, dispute resolution and the performance of the terms and ARTICLE D - SERVICES SUPPORT conditions of the transaction. Merchant must inform cardholder prominently and unequivocally of the identity of the Merchant at all points of interaction. 38 PSiGate will make commercially reasonable efforts to provide Services Support on a timely basis. 31 Merchant shall not (and shall not knowingly cause or permit anyone to) reproduce or prepare any derivative work based upon the Services or any other 39 Prior to submitting a support request to PSiGate, Merchant will first proprietary information belonging to Home Trust or PSiGate. Merchant agrees to troubleshoot its system to determine if issues may be arising from other software or secure and protect tangible forms of the Software so as to maintain the rights of hardware of the Merchant, its Internet service provider, the Internet or other Home Trust, PSiGate and its licensors. Merchant shall not (and shall not knowingly variables outside the control and domain of PSiGate. Merchant may be charged by cause or permit anyone to) disassemble, decompile, decrypt, extract, or reverse PSiGate, at PSiGate’s discretion, for products or technical support which are not engineer the Software in order to ascertain, derive, and/or appropriate for any covered under the Services Support policies and procedures of PSiGate then in reason or purpose, the source code or source listing for the Software. effect. PSiGate will advise Merchant of the possibility of charges for any products or technical support requested prior to proceeding. 32 Merchant is responsible for its employee’s actions while in Merchant’s employ. ARTICLE E – FEES 33 Merchant agrees that the User Documentation shall be disclosed only to its employees as are necessary to facilitate the Services, shall not be disclosed to third 40 Merchant promises to pay Home Trust, its successors and assigns fees for parties without the written consent of Home Trust and PSiGate and shall be kept in the Services set forth in the Rates and Fees section of the Application, and any a safe and secure location. other fees deemed applicable by Home Trust and/or PSiGate, including but not limited to Fees. Merchant waives any right to off-set against any of the Fees. There Data Security shall be added to all Fees an amount equal to all taxes, however designated, levied or based, including, with-out limitation, sales and use taxes imposed in connection with the Services. Merchant shall be liable to pay for the full month’s Fees even if
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the Services are terminated before the end of the month for any reason. Merchant become effective upon the date any such change is implemented by the applicable agrees that said Fees shall be paid from, and withdrawn by Home Trust from, the Card Organization or third party. account designated by the Merchant on the Pre-Authorized Debit Agreement. Failing which, Merchant agrees that Home Trust may withdraw said payment from 47 We may also increase and/or implement new fees for our Services for any the Settlement Account. other reason by notifying you 30 days prior to the effective date of any such change.
41 Merchant cannot change its settlement bank subsequent to the Effective Date Indemnification, Limitation on Liability and Exclusion of Special Damages without the prior written consent of Home Trust. Home Trust may charge an additional fee for considering the Merchant’s request. 48 Home Trust’s cumulative liability for all losses, claims, suits controversies, breaches or damages for any cause whatsoever (including but not limited to, those 42 Merchants with invoices remaining unpaid 30 days after the due date, or if arising out of or related to this Agreement and the Operating Guide) and regardless payment is returned NSF or rejected, are liable for a reconnection fee, pursuant to of the form of action or legal theory shall not exceed (i) $50,000; or (ii) the amount of the Rates and Fees section of the Application, and may have their Services Fees received by us pursuant to this Agreement for Services performed in the suspended. Suspended Services may be resumed upon receipt of full payment of all preceding 12 months, whichever is less. amounts due and Merchant agrees to pay a reconnection fee, pursuant to the Rates and Fees section of the Application. Suspension of Services shall not relieve 49 Home Trust’s liability for any delay in funding transactions to you for any Merchant from its obligation to pay any and all past due Fees. Merchant agrees that reason will be limited to interest computed from the date that you should have Merchant is responsible for all collection costs including legal fees, for any and all received funding pursuant to this Agreement unpaid amounts. 50 You agree to indemnify and hold us harmless from and against any losses, 43 Under no circumstances shall Home Trust be liable to Merchant under any actions, causes of action, claims, demands, costs, liabilities, expenses, damages, contract, negligence, strict liability or other legal or equitable theory for any amounts sanctions, fines or penalties (including legal fees on a solicitor and client basis) in excess of the aggregate Fees paid by Merchant under this Agreement during the claimed by a third party arising from: (i) any breach of any warranty, covenant or 12 month period prior to the date the cause of action arose. The exclusions and agreement or any misrepresentation by you under this Agreement; (ii) you or your limitations of this section will not apply in jurisdictions that prohibit the exclusion or employees’ or agents’ failure to comply with the terms of this Agreement or any limitation of incidental or consequential damages or limitations on the duration of an requirements of which you are advised from time to time including requirements of implied warranty. Card Organizations or of Card Issuers; (iii) you or your employees’ or agents’ fraud, negligence or willful misconduct in connection with Card transactions or otherwise 44 Settlement Account. Merchant shall maintain a Settlement Account at arising from your provision of goods and services to cardholders; or (iv) Card Home Trust or an institution acceptable to Home Trust with a balance of available transactions or the settlement of funds from transactions or your use of our Service; funds sufficient to accommodate Merchant's obligations under this Agreement. any third party indemnifications we are obligated to make as a result of your actions Home Trust may debit the Settlement Account daily for the Fees. Merchant agrees (including indemnification of any Card Organization or Issuer). This clause will to work with Home Trust to help resolve any problems in crediting/debiting the survive termination of this Agreement. Settlement Account. Merchant agrees to be bound by the terms of the operating rules of the Canadian Payments Association, as may be amended from time to time. 51 We agree to indemnify and hold you harmless from and against all losses, Merchant authorizes Home Trust to access information from the Settlement Account liabilities, damages and expenses claimed by a third party resulting from any breach and to initiate credit and/or debit entries and adjustments to the Settlement Account, of any warranty, covenant or agreement or any misrepresentation by us under this by bank wire or Electronic Funds Transfer (EFT) and/or through direct instructions to Agreement or arising out of our or our employees’ gross negligence or willful the financial institution where the Settlement Account is held, for amounts due under misconduct in connection with this Agreement. this Agreement as well as for any credit entries in error. Merchant authorizes the financial institution where the Settlement Account is maintained to effect all such 52 You agree that you will have no recourse against us, our agents, and our debits and credits to the Settlement Account. This authorization is without respect service providers for any losses, claims or damages, including any indirect, special, to the source of any funds in the Settlement Account, is irrevocable, and is coupled incidental or consequential damages or lost profits even if informed of the possibility with a security interest, and shall remain in full force and effect until Home Trust has of such damages (however arising, including negligence), arising out of or related to given written notice to the financial institution where the Settlement Account is Card transactions, the POS terminal, or settlement of funds. This clause will survive maintained that all monies due under this Agreement have been fully satisfied. All termination of this Agreement. settlements for MasterCard and Visa Card transactions shall be net of credits/refunds. Applicable discount fees, transaction fees, Chargebacks, or any 53 Due to the nature of EFT and the electronic networks utilized for the other amounts due from Merchant will be debited automatically by EFT from the movement of funds, and the fact that not all banks belong to the EFT network, Settlement Account when due. All credits to the Settlement Account or other payment to Merchant may be delayed. Servicers will not be liable for any delays in payments to Merchant are provisional and are subject to, among other things, final transfer of settlement funds or errors in debit and credit entries caused by third audit by Home Trust, Chargebacks, fees, assessments, and fines imposed by the parties, to any Card Organization or Merchant’s financial institution. Servicers Card Organizations. Merchant agrees that Home Trust may debit or credit the reserve the right to divert and hold all funds when Servicers are investigating any Settlement Account for any deficiencies, overages, fees, fines, charges, and breach of warranty, covenant, representation, or agreement by Merchant or has pending Chargebacks, or may deduct such amounts from settlement funds due to reasonable cause to believe that Merchant may have violated a provision of this Merchant. Alternatively, Servicers may elect to invoice Merchant for any such Agreement, the Operating Guide or the Rules or is engaged in illegal or fraudulent amounts, which amounts shall be payable within 30 calendar days of the date of activity. While transfer of settlement funds is normally conducted by EFT, Home such invoice or on such earlier date as may be specified by Servicers. Trust may be required to effect the transfers by bank wire transfer for reasons beyond the control of Servicers, in which event Merchant will be assessed a wire Fees Adjustments transfer fee for each such transfer.
45 The Fees for Services are based upon assumptions provided by the ARTICLE F - TERM AND TERMINATION Merchant about the anticipated annual volume and average transaction size for all Services as set forth in this Agreement and your method of doing business. If the 54 This Agreement shall take effect on the Effective Date. Home Trust may actual volume or average transaction size are not as expected or if you significantly terminate this Agreement upon giving Merchant 30 days written notice. Home Trust alter your method of doing business, we may adjust your Merchant Discount Rate may terminate this Agreement immediately and without notice if Merchant creates and Fees without prior notice. any harm or loss of goodwill to the Card Organizations.
46 The Fees may be adjusted to reflect increases or decreases by Card 55 Home Trust reserves the right to terminate any account of Merchant on which Organizations in interchange, assessments and other Card Organization fees or to no activity has occurred for a period of not less than 6 months. Home Trust pass through increases charged by third parties for on-line communications and reserves the right to remove any data stored in any Merchant directory upon similar items. All such adjustments shall be your responsibility to pay and shall termination of Merchant account.
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56 In the event that Home Trust reasonably believes that a Threatening 64 This Agreement may not be transferred or assigned by Merchant and any Condition exists, Home Trust will provide Merchant with notice of the Threatening attempts by Merchant to assign any of its rights or delegate any of its duties Condition, upon receipt of which Merchant agrees to exercise its best efforts to cure hereunder shall be null and void. This Agreement shall inure to the benefit of and the Threatening Condition. If in PSiGate’s sole discretion, the Threatening bind Home Trust, PSiGate and Merchant and their respective successors and Condition poses an imminent or actual threat to PSiGate’s systems, equipment, permitted assigns. processes, or intellectual property, Merchant agrees to suspend any and all activity on its account until such threat is cured. Notwithstanding the foregoing, Home Trust 65 Merchant warrants and represents that its signatory has been and is on the may thereafter deactivate Merchant’s account without notice until the threat is cured date of this Agreement duly authorized by all necessary corporate action to execute if Merchant does not itself suspend activity. this Agreement.
57 The initial term of this Agreement shall be two years from the Effective Date. 66 Servicers shall not be responsible for any failure to perform its obligations Thereafter, this Agreement will renew automatically for additional terms of one year under this Agreement if such failure is caused by acts of God, war, strikes, unless either party provides the other with written notice not less than 30 calendar revolutions, lack or failure of transportation facilities, laws or governmental days prior to any such renewal that it does not wish to renew this Agreement. In the regulations or other causes that are beyond the reasonable control of the Servicers. event of termination for any reason, the fees for the balance of the term shall immediately become due and payable. 67 This Agreement, including the Operating Guide and any schedules attached hereto, constitutes and contains the entire agreement between the parties with 58 This Agreement may be terminated by either party effective immediately and respect to the subject matter and supersedes any prior oral or written agreements. without notice in the event that: (i) the other party commits a material breach of this Each party agrees that the other has not made any representations, warranties or Agreement which remains uncured 30 days following written notice thereof; (ii) the agreements of any kind, except as expressly set forth herein. The headings in this other party files a petition in bankruptcy, files a petition seeking any reorganization, Agreement are intended for convenience of reference and shall not affect its arrangement, composition or similar relief under any law regarding insolvency or interpretation. relief for debtors, or makes an assignment for the benefit of creditors; (iii) a receiver, trustee or similar officer is appointed for the business or property of such party; (iv) 68 Merchant may not modify or amend this Agreement, including by custom, any involuntary petition or proceeding under bankruptcy or insolvency laws is usage of trade or course of dealing, except by an instrument in writing signed by instituted against such party and is not stayed, enjoined or discharged within 60 duly authorized officers of both of the parties. The waiver by either party of a breach days; or (v) the other party adopts a resolution for discontinuance of its business or of any provision contained herein shall be in writing and shall in no way be for its dissolution. construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. 59 Electronic Agreement, This section and sections 60 and 61 shall apply in the event Merchant executes this Agreement online on website and clicks the 69 The provisions of this Agreement relating to confidentiality, reverse “Submit,” “Accept,” or equivalent indicator. engineering and indemnification shall survive any termination or expiration of this Agreement. 60 Each party agrees that this Agreement may be effected by electronic means and understands that all electronic documents related hereto are legally binding in 70 If any provision of this Agreement shall be held illegal or unenforceable, that the same manner as are written documents when the information contained therein provision shall be limited to the minimum extent necessary so that this Agreement is sent or delivered in an electronic record capable of retention by the recipient at shall otherwise remain in full force and effect and enforceable. the time of receipt. An electronic record is not “capable of retention by the recipient” if the sender or its information processing system inhibits the ability of the recipient 71 Each provision of this Agreement shall be fairly interpreted and construed in to print or store the electronic record. accordance with its provisions and without any strict interpretation or construction in favour of or against either party. This Agreement may be signed in multiple counter- 61 Merchant understands that a contract may be executed by the interaction of parts, and each such duly signed counterpart shall be deemed to be an original an individual, acting on his or her own behalf or for another person, with an copy of this Agreement provided; however, that each party shall receive a electronic agent (such as this website and the computer program or programs counterpart fully signed by the other party. operating in conjunction with it), so long as the individual knows or has reason to know his or her actions will cause the electronic agent to complete the transaction or 72 Merchant further agrees and consents that any information collected by the performance. In the event, however, that Merchant has unintentionally submitted an Servicers shall be used in accordance with PSiGate’s privacy statement available at online application because of an error made by Merchant in dealing with this http://www.psigate.com/privacy.asp and for FDLCC at www.firstdata.com/en_CA. website, and Merchant promptly notifies of such error and informs that Merchant does not intend to be bound and agrees that the online application erroneously 73 Account ant Transaction Information Security Policies. Merchant shall submitted will be deemed null and void provided that Merchant has not used any of collect Account and Transaction Information by consent of the cardholder for the the Services. It is understood and agreed that any use by Merchant of any of the sole purpose of completing the Card transaction or as specifically required by law. Services shall bind Merchant to this Agreement, whether or not Merchant claims the The Merchant shall not provide this information to any other party except for the online application was submitted in error. purpose of assisting in the completion of the Card transaction. Merchant shall be solely responsible for any Account and Transaction Information that it retains and ARTICLE G – GENERAL any retained information shall be protected in accordance with the respective Card Organization standards. Account and Transaction Information security policies 62 The parties shall perform all of their duties under this Agreement as define the information that must be secure and the minimum level of security that independent contractors. Nothing in this Agreement shall be construed to give either must be provided. Merchant shall cooperate with Visa, MasterCard, PCI Security party the power to direct or control the daily activities of the other party, or to Standards Council, LLC, and other Card Organizations. Merchant shall notify constitute the parties as principal and agent, employer and employee, franchiser Servicers immediately if there is a data breach or account compromise. and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. The parties agree that, except as specifically provided in this 74 Protection of Cardholder Information. The sale or disclosure of cardholder Agreement, neither party grants the other party the power or authority to make or data is strictly prohibited by the Rules, as well as federal, provincial, state and local give any agreement, statement, representation, warranty or other commitment on laws. Unless Merchant obtains written consents from Servicers, each applicable behalf of the other party, or to enter into any contract or otherwise incur any liability Card Organization, Home Trust, and cardholder, Merchant must not use, disclose, or obligation, express or implied, on behalf of the other party, or to transfer, release sell, or otherwise disseminate any cardholder data to any third parties except as or waive any right, title or interest of such other party. necessary to use the Services, resolve Chargebacks, complete retrieval requests, or as required by subpoena or order by a court or other governmental agency. 63 This Agreement shall be governed by and interpreted in accordance with the Merchant shall use proper controls to restrict access to all records containing Card laws of the Province of Ontario and the federal laws of Canada and each party data. Merchant may not retain or store magnetic stripe data after a transaction has submits to the exclusive jurisdiction of the courts of the Province of Ontario. been authorized. If Merchant stores any electronically captured signatures of a cardholder, Merchant may not reproduce such signature except upon the specific
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request of Home Trust or PSiGate, Merchant shall store all media containing receive the benefits thereof with respect to Card transactions hereunder. Merchant cardholder data (including Sales Records, Credit Records, rental agreements, etc.) represents and warrants that no other person or entity has a security interest in the in an area limited to selected personnel, and, prior to discarding any such media property described herein and that this security interest is a first lien security interest destroy the media in a manner that renders the data unreadable and unrecoverable. and secures Merchant's obligations to Servicers under this Agreement. Servicers In addition to the foregoing, Merchant shall comply with the applicable requirements shall have all rights of a secured party and Merchant must obtain the prior written of the MasterCard cardholder Information Security Program and the Visa Account consent of Servicers before granting any subsequent security interest in the Information Security Program. property described herein. Merchant agrees that it is Merchant's intent that these accounts and secured property shall to the extent allowed by applicable law not be 75 Provision of Business Records. At all times during the term of this subject to any preference, claim, or stay by reason of any bankruptcy or insolvency Agreement, upon Home Trust’s request, Merchant shall provide all documentation law. Merchant agrees to act consistently with the understanding that said accounts evidencing Merchant’s financial condition as well as other documentation deemed and secured property under this Agreement are free of all such preferences, claims reasonably necessary to verify the information contained in the Merchant Account or stays by reason of and as allowed by any such law. Application. All financial statements of Merchant that are provided shall be prepared in accordance with generally accepted accounting principles. Merchant agrees to 79 Notices. All communications under this Agreement will be in writing and will provide such documentation within 30 days of the request. In the event Merchant be delivered in person, via email or by mail courier, return receipt requested, fails to provide the requested documentation, Home Trust shall be entitled to addressed to the following: terminate this Agreement. Home Trust and PSI Gate 76 Setoff Rights. Home Trust shall have the right, at any time and without 145 King Street West notice, to charge back to Merchant, and deduct, withdraw or set-off from payments Suite 2400 due Merchant from Card transactions, or from the Settlement Account, the Reserve Toronto, On M5H 1J8 Account, any other account or amounts due Merchant the full amount of any Card transactions designated by Home Trust or a Card Organization or which fails to PSiGate Merchant Service meet the requirements of this Agreement. 1-877-374-9444
77 Reserve Account. At any time and for any reason (including, without The parties may, from time to time, designate different persons or addresses to limitation, notice of termination or actual termination of this Agreement, change in which subsequent communications will be sent by sending a notice of such transaction volume, change in business model, unauthorized transactions, cessation designations in accordance with this Section. of business, insolvency, excessive Chargebacks, suspected or actual fraud, or competing claims regarding funds generated via Merchant’s processing activities), 80 Complaints. All complaints in respect of PsiGate shall be directed to Home Home Trust may require Merchant to transfer funds to Servicers, which funds shall Trust at the address provided above. All complaints in respect of Home Trust shall serve as collateral to protect Servicers against actual or contingent liabilities or be directed to Home Trust, attention Chief Compliance Officer, at the address losses that might be incurred by Servicers in the event Merchant is unable or fails to provided above. pay Chargebacks, adjustments, fees, and other charges and obligations due or anticipated to become due to Servicers hereunder. At any time, Servicers shall be Any unresolved complaints should be forwarded to the Chief Compliance Officer of entitled to require Merchant to increase funds in the Reserve Account, in the event Home Trust at the address above. If the complaint remains unresolved, you have of which Home Trust shall notify Merchant in writing of the increased funding the right to refer you dispute to the Canadian Banking Ombusman Inc., a third party requirement, except in the event of notice of termination or actual termination of this dispute resolution agency at the address below: Agreement, unauthorized transactions, cessation of business, suspected or actual breach or default, or cessation of processing under this Agreement. If notice is Ombudsman for Banking Services and Investments required, Servicers may notify Merchant either before or after the establishment or P.O. Box 896 increased funding requirement of the Reserve Account, but not later than 5 business Station Adelaide days after the establishment or increased funding requirement of the Reserve Toronto, ON MSC 2K3 Account. Home Trust shall specify in its notice, at Home Trust’s sole discretion, the amounts to be funded and the timing for establishment or increased funding of such Also, pursuant to the Trust and Loan Companies Act, if you have a complaint in Reserve Account; provided, however, that Home Trust may require that such respect of a deposit account, a payment, credit or charge card, or the disclosure of Reserve Account be funded immediately (including, without limitation, in instances or manner of calculating the cost of borrowing in respect of a loan the complaint of unauthorized transactions, suspected or actual fraud or termination for cause). may be communicated in writing to: Such funds will be deposited into a non-interest bearing account maintained at Home Trust. Servicers may, without notice, fund the Reserve Account (whether Financial Consumer Agency of Canada initially or due to increased funding requirements) with deductions from payments 6th Floor, Enterprise Building due Merchant from Card transactions or by a charge against the Settlement Account 427 Laurier Ave. West or any other available account of Merchant. Servicers will hold or be entitled to hold Ottawa, Ontario K1R 1B9 the funds in the Reserve Account until such time as Servicers are satisfied that Merchant has no further obligations to Servicers under this Agreement. Merchant's 81 Disclaimers: THE SERVICES PROVIDED HEREUNDER ARE PROVIDED failure to fund the Reserve Account (whether initially or due to increased funding "AS IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR requirements) will result in immediate termination of this Agreement. WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH MERCHANT. THIS 78 Security Interest. MERCHANT GRANTS SERVICERS A LIEN AND DISCLAIMER OF WARRANTY EXTENDS TO MERCHANT AND ALL USERS OF SECURITY INTEREST IN THE SETTLEMENT ACCOUNT, THE RESERVE MERCHANT’S GOODS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES ACCOUNT, ALL CARD TRANSACTIONS (INCLUDING FUTURE CARD AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, TRANSACTIONS), ANY RIGHTS TO RECEIVE CREDITS OR PAYMENTS UNDER INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS THIS AGREEMENT, AND ALL DEPOSITS AND OTHER PROPERTY OF FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH MERCHANT THAT SERVICERS OR ITS AFFILIATES POSSESS OR MAINTAIN RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED (INCLUDING ALL PROCEEDS OF THE FOREGOING), AND MERCHANT SHALL WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF EXECUTE, DELIVER AND PAY THE FEES FOR ANY DOCUMENTS SERVICERS PERFORMANCE. REQUEST TO CREATE, PERFECT, MAINTAIN AND ENFORCE THIS SECURITY INTEREST. TO THE EXTENT PERMITTED BY LAW, MERCHANT IRREVOCABLY 82 Audit. During the term of this Agreement and for 2 years thereafter, Servicers AUTHORIZES SERVICERS TO EXECUTE ANY FINANCING STATEMENTS OR shall have the right to examine Merchant’s records, books, systems, controls, OTHER DOCUMENTS NECESSARY RELATED TO THIS SECURITY INTEREST. processes and procedures for the purpose of verifying Merchant’s compliance with Servicers shall also be the beneficiary of any insurance, surety bond or similar the terms and conditions of this Agreement. Merchant shall provide to the auditors indemnity or guaranty (whether voluntary or required by law) of Merchant or for the and personnel of Servicers reasonable access to records and shall cooperate and benefit of Merchant, and Merchant assigns to Servicers the rights to make claims or provide to such auditors, in a timely manner, all such assistance as they may
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reasonably require in connection with any such audit. Except in the event that avail himself of that opportunity prior to the signing of this Agreement, Merchant did Servicers have a reasonable basis to believe that Merchant is in violation of any so voluntarily without any undue pressure and agrees that Merchant failure to obtain Rules or laws, or in breach of any warranties, Servicers will provide Merchant no independent legal advice shall not be used by Merchant as a defense to the less than 5 days written notice prior to the date of an audit, the audit will be enforcement of his obligations under this Agreement. conducted during Merchant’s normal business hours, and audits shall occur no more than twice in any calendar year.
83 INTERAC™ ONLINE MERCHANT TERMS AND CONDITIONS. For this Section 83 only, “Agreement” shall mean the Emergis Internet Transaction Re-seller Agreement between Emergis Inc and PSiGate. “Cardholder” shall mean a person holding an Interac™ card issued by that person’s financial institution, permitting that person to utilize Interac™ services to pay for his/her purchases from the Merchant. “Emergis” shall mean Emergis Inc.
Home Trust shall ensure that its agreement with Merchants: (a) include requirements that the Merchant adhere to all requirements applicable to the services it performs specified in the Agreement, the INTERAC Online By-law, these INTERAC Online Operating Regulations, the Trade-mark License Agreement and any other directive, guideline or policy passed by resolution and promulgated by Acxsys™ and all applicable federal and provincial laws, (b) require that the Merchant be provided with the text of the specific requirements referred to in paragraph (a), (c) contain confidentiality provisions that confer an equivalent degree of protection to that required under the INTERAC Online By-law, (d) confer on to Emergis the right to verify that the Merchant is in compliance with the requirements referred to in paragraph (a), (e) confer on to Emergis the right to terminate the Agreement for any material breach of the requirements referred to in paragraph (a), (f) confer on to Emergis the right to share with other Participants and Acxsys™ information pertaining to any termination, suspension or other action taken against the Merchant for reasons of non-compliance with the requirements referred to in paragraph (a), (g) include the requirement that the Merchant assist Emergis as well as Acxsys™ with the investigation of a fraud; and when needed, take any action necessary, including but not limited to the cancellation of the shipment of the goods, to prevent any financial loss, (h) include the requirement that the Merchant must have appropriate processes and procedures in place to protect Home Trust information in accordance with all applicable federal and provincial privacy legislations, (i) obtain informed consent from it’s merchants for the use by Acxsys™ of any information collected from its Merchants, (j) include the requirement that the Merchant must display the Issuer Confirmation Number generated by the Issuer on the confirmation screen to the customer, (k) include a requirement that the Merchants Web site contain the following, (i) Timeout message: Where the Merchant allows less than 30 minutes for a customer to complete a transaction through an Issuer’s website, the Merchant shall disclose to the Home Trust the amount of time allocated to complete the transaction, (ii) Trade-mark: The Merchant shall display the Trade-mark in accordance with the INTERAC Online Operating Regulations; and (iii) Currency: The Merchant shall disclose to the customer the amount that will debited from the customer’s account in Canadian funds.
Merchant agrees as follows: (a) to provide to Emergis the information required to complete Emergis’ security compliance certification program, as required by Interac Online Annual Compliance Program, (b) to comply with any minimum transactions values which may be set by either Emergis or the financial institution issuing the Interac™ card (providing the Merchant is aware of such existing minimum requirements or has been given at least 90 days written notification of the establishment of such minimum values), (c) that Acxsys™ and/or Emergis amend these Terms and Conditions and any of their requirements and/or regulation at any time (upon written notice to the Home Trust who shall in turn immediately transmit the same to Merchant and agrees to be bound and abide immediately to any new requirements and/or regulations imposed pursuant to such modifications of the Terms and Conditions), (d) that Emergis may immediately terminate the provision of such services upon failure of Home Trust or Merchant to perform, observe, conform to or comply with any of the obligations described herein, (e) upon termination of this Agreement, to discontinue immediately all use of the Service and immediately return all POP Materials to Emergis, (f) grant Emergis, the right to verify that Merchant is in compliance with the Interac™ Online Requirements, (g) maintain accurate logs of employee shift and provide these logs (with or without employee names) to Emergis, within 24 hours of a request of Acxsys™ as part of an investigation of a fraud or incident, (h) comply with all applicable Interac Online regulations (including without limitation the Security Regulations and Standards issued by Acxsys™)
The Merchant agrees that it had the opportunity to seek and was not prevented nor discouraged by Home Trust from seeking independent legal advice prior to the execution and delivery of this Agreement and that in the event that Merchant did not
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