1. General Description

These Terms & Conditions (“Merchant Terms & Conditions” or “Agreement”) constitute a legal agreement between you and PayWith Canada Inc. (“we” or “us” or “our” or “Company” or “PayWith”) governing the processing of PayWith mCards (defined below) using your card processing terminals and the use of PayWith’s marketing and promotional services via our platform accessible through app.paywith.com website, our web applications, and our mobile applications, and enabling you to develop promotional programs personalized to your business (referred to as “Marketing Campaigns”) that, among other elements, includes accepting mCards as a method of payment in accordance with these Terms and Conditions.

2.   Principal Company Obligations

PayWith agrees that we will:

a.        provide and support tools to design Marketing Campaigns for your business that will be beneficial and attractive to potential customers of your business (“Users”), including access to your personal PayWith account on our web application;

b.       advertise Marketing Campaigns on our web applications, on our mobile applications, through our affiliate network and advertising partners, or through other third party advertisers.

c.        facilitate the processing of payment by use of virtual credit cards issued by PayWith (“mCards”) to

Users on your credit card processing terminal or other payment processing means;

d.       work with you to try to resolve any User complaints related to payment processing of mCards;

e.        notify you of all third party changes to your Marketing Campaigns including any changes made by us; and

f.        provide you with redemption tracking and summary analytics for your Marketing Campaigns.

3. Principal Merchant Obligations

In connection with your Marketing Campaigns, you agree that you will:

a.        provide complete and accurate information as may be requested in connection with your Marketing Campaigns, maintain the accuracy of all such information, and provide prompt approval of any proofs of any related advertising materials generated by PayWith;

b.       authorize us to advertise the Marketing Campaigns, in accordance with this Agreement, and make minor adjustments to the Marketing Campaigns and advertising copy as we deem necessary or desirable to promote your Marketing Campaigns efficiently, which authority is hereby granted;

c.        honor all incentives, rewards, and credits earned by Users as part of your Marketing Campaigns (“Incentives”) and provide Users with the goods and/or services that are promised under each Marketing Campaign, and offer the same prices to any User paying with mCards as those using any other payment method;

d.       immediately notify us of any unauthorized use or suspected unauthorized use, fraud or suspected fraud, or other breach of security of the PayWith or mCards;

e.        accept responsibility for any User complaints and customer service issues that may arise in connection with any User’s redemption or attempted redemption of Incentives associated with your Marketing Campaign;

f.        accept responsibility for any Marketing Campaign which you create, modify, or terminate when you are logged into our web application; and

g.        make all payments in a timely fashion per section 9 of these Merchant Terms and Conditions.

PayWith mCards are not for the purchase of goods or services for future delivery or consumption. This means that you should not allow Consumers to use mCards to purchase printed gift certificates, gift cards, or credit of any kind which will be redeemable at a future time. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

4. Processing of mCards

An mCard is either:

1.      A physical plastic card bearing the branding of a marketing program which has a magnetic strip readable by any standard credit card terminal, or

2.      A visual representation on an electronic device (e.g. a smartphone) of three pieces of data: a 16-digit number (the “mCard number”), an expiry date expressed as 4 digits (MM/YY) and a 3-digit Card Verification Value (CVV) number.

The card processing fee or “Merchant Discount Rate” (MDR) applicable to an mCard transaction will be the MDR you have agreed with your Payment Processor for a basic, non-premiumMasterCard®.

5. Marketing Campaigns and Marketing

When we advertise incentives or rewards associated with your Marketing Campaign, we do so as your marketing service. You, as principal, retain the legal obligation to redeem the Incentives for the goods and/or services promised to the Users under the Marketing Campaign. Use of any Incentives for alcoholic beverages is at the sole discretion of the Merchant, and is subject to compliance with applicable law. You agree that in providing the goods and/or services that are the subject of the Marketing Campaign, you will not impose any restrictions on redemption, extra fees, charges or conditions that contradict the terms set forth in connection with this Agreement or the conditions you have agreed to through use of our web application. You understand and agree that we have the right to promote your Marketing Campaigns, and you agree to honor all Incentives associated therewith.

PayWith may offer additional marketing events or platforms that you choose to employ at your business. Unless fully funded by you, these marketing programs are at the complete discretion of PayWith. We may update, postpone, adjust, or cancel any Marketing Campaign at any time, with or without reason and with or without notice to you.

6. User Complaints

If we receive any User complaints related to your Marketing Campaign, you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so, and so we reserve the right to refund payments to Users who paid with mCards and adjust your next Incentive Invoice or Tracking Invoice correspondingly.

7. Fraudulent Use

We will make every effort to avoid fraudulent use by Users, including immediate emails and/or text messages to Users to confirm accurate use of mCard payment. In the event a User suffers a loss associated with fraudulent use of a legitimate mCard, Company will fully reimburse you or User for any loss as confirmed by Company associated with fraudulent use. Any reimbursement owed is decided at Company's sole discretion.

Paywith will not initiate or pursue any chargebacks nor will we seek to recover any funds from you related to the fraudulent use of a legitimate mCard. Paywith accepts no responsibility for any issues which arise from the presenting or processing of cards which are not delivered to the User by PayWith.   

8. Billing and Payments

8.1 Balance Owing

Your “Balance Owing” is calculated as the sum of any Incentives PayWith has advanced to Users on your behalf, any Fees charged by PayWith, and taxes payable by you, less any payments you have made to PayWith. The Fees chargeable for the PayWith Products and Services which are activated for you are determined by the settings in the PayWith web application which you make or agree to. Any changes to the Products and Services activated or the associated Fees will be advised to you and are deemed to be applicable the calendar month following your receipt of such advice unless you advise PayWith otherwise.

8.2 Billing and payment

PayWith will issue you an invoice for the Balance Owing on a monthly basis. Payment is due within 10 business days of receipt of the invoice.

8.3 Non-payment

If payment is not received within 10 business days of receipt of the invoice, PayWith reserves the right to take any or all of the following actions without further notice to you:

·       Suspension of all unexpired Promotional Gifts;

·       Discontinuation and/or de-activation of all Marketing Campaign offers managed using the PayWith platform;

·       Deactivation of an individual location or your overall Account.

Following any default on payment, PayWith reserves the right to require advance payment from you against all Incentives, Commissions and Fees for any ongoing access to or use of the PayWith platform. PayWith further reserves the right to pursue legal action to recover outstanding Incentives, Commissions, or Fees.

9. Returns and Refunds

If a customer of yours would like a refund, or returns a product which they purchased using a PayWith mCard we advise that you provide them with store credit for the full amount of the purchase. PayWith will still provide the Customer with any rewards promised in the original purchase and bill you accordingly.

10. Cancelling Your Account

You may cancel your Account at any time. If you cancel your account or if your account is cancelled by PayWith for any reason, Paywith may deactivate any active Marketing Campaigns at any time for any reason at our sole discretion including if we believe that the Marketing Campaign is related to any unlawful activity or is not consistent with our reputation or brand identity. We will also have the continuing right, but not the obligation, to reject, revise, or discontinue publishing any Marketing Campaign and to require you to edit or modify the same for any reason, including, without limitation, to conform your Marketing Campaign to our specifications and applicable law. If your Marketing Campaign is cancelled for any reason, we will cease the advertising of your Marketing Campaign as soon as practicable after we have approved such cancellation.

If your account is cancelled PayWith will have the right to maintain or terminate all of the data associated with any and all Marketing Campaign you have ever done including, but not limited to, user transaction data and Incentives offered. If you choose to reactivate your account at a later time AND PayWith has chosen to maintain your data, it is possible that you may be able to access this data if your account is reactivated; however, PayWith is not required to do so.

If you cancel your account PayWith will, at PayWith’s discretion, either charge the credit card on your account or issue you an invoice for your Balance Owing.

11. Intellectual Property

You grant us, our affiliates and our advertising partners a non-exclusive worldwide license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content (“Merchant Content”) for publication as part of marketing or promotion of your Marketing Campaigns pursuant to this Agreement. You also agree that we may publish your corporate name, artwork, text and logo on our website our online and mobile services, and on the websites and online services of our affiliates and advertising partners, to acknowledge you as a PayWith merchant. You represent and warrant to us that you have the right to provide the Merchant Content to us, and that the use, copying, modification and publication of the Merchant Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law. You agree and acknowledge that we own all right, title and interest in and to the software, technology, tools, content, Confidential Information (defined below), websites, online services, trademarks and other materials related to your Marketing Campaigns, other than the Merchant Content, or otherwise used by us to promote, sell, generate, or distribute the Marketing Campaign (collectively, the “Company IP”), and no licenses or other rights to the Company IP are granted to you by this Agreement or otherwise. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Company IP or any portion thereof, or use such Company IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the Company IP, nor shall you translate, reverse engineer, decompile or disassemble the Company IP.

12. Representations and Warranties

You represent and warrant that (a) you have the right, power and authority to enter into this Agreement, (b) you are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided pursuant to the each Marketing Campaign and presentation of associated Incentives, (c) each Incentive shall be immediately available for redemption by the User, (d) these Terms and Conditions, including any discounts or goods and services offered thereunder, comply with all, and do not violate any, local, state, federal or international law, statute, rule, regulation or order, including without limitation those governing rewards, incentives, gift cards, coupons and/or gift certificates, and (e) any advertising or promotion of your products or services relating to any of your Marketing Campaigns will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.

13. Standard of Services; No Warranty

OTHER THAN AS EXPLICITLY SET FORTH HEREIN, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO YOUR MARKETING CAMPAIGNS OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT OR GURANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE PAYWITH WEBSITES OR SERVICES WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE INCENTIVES WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMMISSIONS OR MISPLACEMENTS IN THE MARKETING CAMPAIGNS WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.

14. Limitation of Liability

IN NO EVENT WILL WE BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICE OR SOFTWARE PROVIDED BY PAYWITH OR ON PAYWITH’S WEBSITE, MOBILE APPLICATION OR WEB APPLICATION, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICE OR SOFTWARE PROVIDED BY PAYWITH OR ON PAYWITH’S WEBSITE, MOBILE APPLICATION OR WEB APPLICATION EXCEED THE AMOUNT OF MARKETING FEES DIRECTLY ASSOCIATED WITH THE PERIOD RELATED TO THE CLAIMED DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

15. Indemnity

You agree to indemnify and hold harmless Company, its affiliated and related entities, and any of their officers, directors, employees and agents (“Company Indemnitees”) against any claims, actions, suits, investigations, liabilities, losses, damages, costs and expenses, including but not limited to attorneys’ fees and costs (“Damages”), arising out of, relating to, or incurred in connection with, any of the following: (a) any breach or alleged breach of your representations, warranties or covenants set forth herein; (b) any claim for state sales or use tax obligations arising from the sale of and subsequent redemption of an Incentive associated with your Marketing Campaigns, or any claim by any local, state or federal governmental entity for unredeemed Incentives or unredeemed cash values of Incentives or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest ("Abandoned Property Claims"), as well as all attorney’s fees, related to any action against, or determinations against, Company related to any action to pursue Company for any such taxes or Abandoned Property Claims; (c) any claim concerning your failure, or alleged failure, to redeem an Incentive; (d) any claim arising out of or relating to the products or services provided by you, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; or (e) any failure of your Marketing Campaign or goods or services to comply with law, except in the case of this subsection (e) to the extent such Damages are caused by the gross negligence or willful misconduct of any Company Indemnitee.

16. Confidentiality

In connection with this Agreement, Company and Merchant may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, and technologies that is not generally publicly known (“Confidential Information”). Each of us shall keep confidential the Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes of this Agreement. The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of confidentiality of the receiving party or any third party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; and (d) information required to be disclosed in order to comply with law. This paragraph shall not prevent us from developing, using and disclosing aggregated statistics about PayWith Marketing Campaigns and our services that are not specific to any individual business.

17. Suspension and Termination; Amendments

We have the right to suspend the operation of any Marketing Campaign, Merchant Account or User, or to terminate this Agreement and to cancel any Marketing Campaign then-running, in the event that you are in material breach of this Agreement or if you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation. Sections 4-17 hereof, and all accrued rights and remedies hereunder, shall survive any termination of this Agreement. We may modify this Agreement from time to time, and such modification shall be effective thirty (30) days after we have sent an e-mail to you containing a notification of such modifications In the event that such modification is unacceptable to you, you may cancel your account upon written notice to us.

18. General

This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. This Agreement will be interpreted, construed and governed exclusively in all respects in accordance with the laws of the Province of British Columbia, Canada, excluding its conflict of law rules. The Merchant agrees and irrevocably attorns and submits to the exclusive jurisdiction of the courts of, British Columbia, Canada with respect to any dispute arising as a direct or indirect consequence of this Agreement.

The relationship between PayWith and Merchant hereunder is that of independent contractors and nothing herein will be deemed to create a joint venture, partnership or agency relationship between the parties for any purpose.

The communications between Merchant and Company may use electronic means. For contractual purposes, Merchant (a) consents to receive communications from Company in an electronic form, and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically will satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect Merchant’s statutory rights.

If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect.

This Agreement may be executed in counterparts, and exchange of electronic facsimile signatures shall be deemed execution of this Agreement.

19.  Merchant Privacy Policy

PayWith reserves the right to share transaction data, in aggregate, with third parties to aid in statistical analysis, Marketing Campaign structuring and tracking, or feature development. You understand and agree that PayWith reserves the right to share user information in accordance with the PayWith general Privacy Policy ("Privacy Policy"), which can be found here:paywith.com/privacy. The Privacy Policy is incorporated by reference herein.

20. Choice of Law

Any disputes arising out of or related to this Agreement shall be governed by the laws of the Province of British Columbia, Canada.