Term and Termination
The Agreement shall commence as of the date on the Agreement and shall remain in effect until termination by the Merchant or Company. All Company assets are to be returned in good working order, including, but not limited to racks, cards, and terminal equipment within 30 days of termination.
The Company may terminate this Agreement immediately or suspend performance here under upon the occurrence of i) an event of default or in the event any PAD debit “bounces” due to insufficient funds or Merchant intervention ii) in the event The Company determines it is necessary in order to protect The Company’s business or good name iii) Merchant fails to achieve minimum sales targets as set from time to time by The Company iv) Merchant is in breach of any other provision of this Agreement and fails to remedy such breach within seven (7) days after receiving notice from The Company of such breach.
Upon termination, Merchant shall cease selling the products and return to The Company all equipment and supplies, return all Point of Presence Materials, and pay all sums due under this Agreement. If Merchant fails to do so in a timely fashion, The Company shall be entitled to charge the Merchant for any equipment or displays not returned or returned in a damaged state.
Obligations of The Company
During the term of this Agreement, The Company shall:
(a) give to the Merchant such assistance as is required by the Merchant;
(b) provide timely delivery of products and services;
(c) provide business hours support to the Merchant;
(d) provide best practice information relating to products and services and Fraud and AML procedures;
(e) provide settlement of payments and associated reporting.
Obligations of the Merchant
During the term of this Agreement, the Merchant shall:
(a) use its best efforts to advertise and promote the products, including installation of terminal upon receipt;
(b) use the forms provided by The Company from time to time to market and sell the products;
(c) understand that, if applicable, they are enrolled in the Gift Card Program Fee (GCPF) which includes auto replenishment of gift, financial, and long distance cards. The GCPF of $1.50 (one dollar and fifty cents) will be charged to the Merchant weekly;
(d) understand that a weekly non usage fee of $2.50 (two dollars and fifty cents) will be charged if weekly sales do not total $10.00 (ten dollars) or more (excluding Webstore or Web Services Merchants);
(e) agree that they will only apply the convenience fee to appropriate products as described on the voucher;
(f) ensure that all staff are trained on The Companies service, including, but not limited fraud and anti-money laundering warnings;
(g) refrain from ever providing PIN information over the phone, regardless if the caller says they are employed by The Company or the Product Vendor;
(h) acknowledges that any product, whether PIN (personal identification number) or POSA (point of sale activation), once activated cannot be refunded;
(i) be responsible for all transactions printed using The Companies services, including but not limited to transactions obtained fraudulently, or through theft;
(j) refrain from damaging, altering, modifying, repairing or servicing the Terminal without the previous written consent of The Company;
(k) remain fully responsible for the repair or replacement costs associated with damage to the Terminal that is due to (but not limited to) neglect or misuse;
(l) refrain from selling, distributing or promoting products that are in direct competition with The Company products;
(m) be responsible for any and all taxes, deductions and remittances it is required to make under Canadian law in connection with the sale of products. The Merchant agrees to save harmless and indemnify The Company from and against all claims, charges, taxes, penalties or demands which may be made by any government authorities with respect to the Merchant’s compliance or lack thereof with Canadian law;
(n) agree to be included any online store locator. You have the right to be removed from the store locator by contacting Customer Service;
(o) agree that if you have provided The Company with a valid email address, you have given the Company consent to send electronic messages regarding your service, including but not limited to product updates, server maintenance updates, newsletters, fraud warnings, and other notifications. You have the right to be removed or opt-out from non-service oriented electronic messages by contacting Customer Service;
(p) accepts that all reporting and invoicing is accessible only through The Company’s secure web portal and/or via email. You can subscribe to our fax invoice service for $2.50 per week.
The Merchant hereby authorizes The Company or its authorized third party to originate a Pre Authorized Debit (“PAD”) to the Merchant’s account, as provided by the Merchant for all obligations of the Merchant under this Agreement. In the event that The Company incurs any charges due to the failure of a PAD debit to properly process or in the event that the Merchant does not have sufficient funds in its account to permit the PAD debit to go through, the Merchant shall immediately, upon demand, reimburse The Company for all such charges and expenses incurred together with a $35.00 administrative fee. Notwithstanding the foregoing, the failure of a PAD debit to properly post to the Merchant’s account shall entitle The Company to immediately suspend service or terminate this Agreement. If there is any discrepancy between the POS terminal transaction reports and the transaction reports generated by the Server, the Server reports shall be considered correct and accurate.
The Company reserves the right from time to time to:
(i) discontinue or to limit its production or deliveries of any products;
(ii) change any product commissions as found on the Schedule A;
(iii) alter the design or the construction of any products;
(iv) add new and additional products and (v) to replace its hardware, software and service providers with alternative products and services, provided
however that The Company shall not so significantly exercise such right in connection with the products and/or services so as to negatively impact the ability of the Merchant to sell the products.
The company maintains ownership of all hardware and software and reserves the right to remove the equipment at any time.
Representation, Warranties and Covenants
The Parties represent and warrant to each other as follows:
(a) each party has the power to and is authorized to enter into this Agreement;
(b) that nothing in this Agreement shall be construed as authority by The Company for the Merchant to act as an agent of The Company except for the sales and promotion of the product as provided herein and the Merchant hereby expressly undertakes and agrees that it will not incur any debt or obligation on behalf of The Company;
(c) neither party will enter into another Agreement the carrying out of which would interfere with this Agreement;
(d) each party shall maintain confidential and secure all material and information that is the property of the other Party.
The Merchant will indemnify, defend and save harmless The Company, its officers, directors, agents, servants and sub-licensees against any claims, losses or damages resulting from the Merchant’s breach of any representations, warrants or covenants contained in this Agreement.
Limitation of Liability
In no event shall The Company be liable to the Merchant or to any other person or entity for any claims, actions, loss or damage including, without limitation, loss of revenue or profit or savings, lost or damaged data, or other commercial or economic loss or any indirect or incidental, special or consequential damages whatsoever even if The Company has been advised of the possibility of such damages. Notwithstanding anything else in this Agreement, The Company’s maximum aggregate liability for any cause whatsoever related to this Agreement shall not exceed the aggregate amount of the Commissions earned by the Merchant in the twelve (12) months prior to the claim.
This Agreement shall be made and construed in accordance with the laws of the Province of Ontario and the courts of that province shall have exclusive jurisdiction to entertain any action or settle any dispute arising from this Agreement.
Assignment and Notification
The Merchant shall not be permitted to assign its rights in this Agreement to any other person or party without the prior written consent of The Company having been obtained. The Company shall be permitted to assign its rights in this Agreement to any other person or party without prior written notice to The Merchant. No modification or amendment to this Agreement shall be valid or effective unless set forth in writing.