1. The terms and conditions (the “Merchant Terms”) which follow govern the relationship between RevenueWire Inc. (“RWI”) and the Merchant.
2. These Merchant Terms will form a binding contract as between RWI and the Merchant with respect to the products described in these Merchant Terms (the “Products”) and with respect to the delivery by RWI of any services described in these Merchant Terms or such other services as may be provided by RWI to the Merchant from time to time as agreed between RWI and the Merchant.
3. The Merchant hereby appoints RWI to provide the SafeCart™ Services described in Section B of this Agreement and the Affiliate Services described in Section C of this Agreement.
B. SafecartTM Services
1. Sales – Subject to these Merchant Terms RWI will, if appointed by the Merchant, use commercially reasonable efforts to sell licenses to use the Products (each sale, a “Transaction”) to end users (“Customers”), using the RWI shopping cart and multi-currency capable payment processing system (“SafeCart™”) for:
a. the collection of all demographic information from Customers of a Merchant necessary to complete a Transaction (“Customer Demographic Data”);
b. the collection of payment due from Customers with respect to a Transaction (the “Transaction Fee”) plus applicable taxes;
c. where specified in the Merchant Terms, delivery of the Product (by electronic means) purchased in each Transaction;
d. where specified in the Merchant Terms, distributing to the purchaser of a Product the Merchant’s end user licence agreement (the “EULA”), as provided by the Merchant, from time to time;
e. communicating with customers by email and on the web regarding their initiated and completed transactions and the products they purchased;
f. providing to the purchaser of a Product, within forty-eight hours following the successful completion of a Transaction, where specified in these Merchant Terms, a registration code for use with respect to the Product;
g. processing all payments received with respect to each Transaction; and,
h. payment of all credit card and other transactional fees for each Transaction.
Notwithstanding the foregoing, the Merchant agrees that RWI has no obligation to promote or otherwise sell the Products.
2. Vendor – The Merchant and RWI agree that, with respect to each Transaction, RWI is the seller of record. Notwithstanding the foregoing, the Merchant acknowledges and agrees that RWI is neither party to nor responsible for the content or enforcement of any EULA issued with respect to a Product.
3. Licence – The Merchant grants to RWI a non-exclusive right to package, sell and distribute the Products and to use and to reproduce the Merchant’s marks and trade-marks, as RWI considers reasonably necessary, in the sale of Products to Customers. Notwithstanding the foregoing, RWI acknowledges and agrees that it has no right, title or interest in or to the Products save and except as are expressly granted in this Merchant Agreement.
4. Transaction Fees – RWI will establish the Transaction Fee payable by Customers in each Transaction, having reasonable regard to the retail price suggested by the Merchant in the Merchant Terms.
5. Interface – RWI will provide the Merchant with access to a secure interface enabling the Merchant to access and export information stored in SafeCart™ and gathered by RWI with respect to each Transaction, including the Customer Data and general sales data, and to permit the Merchant to restrict sales where necessary as a result of applicable laws or regulations.
6. Customization – Upon request by the Merchant, RWI will customize SafeCart™ to specifications provided by the Merchant, at a cost and on such further terms and conditions as are to be negotiated as between RWI and the Merchant and paid in advance of the completion of such work.
7. Technical Support – It is expressly acknowledged and agreed that RWI will not provide any support or maintenance services relating to the Products, excepting such reasonable support as is necessary relating to the sale of the Products to Customers.
8. Third Party Claims – In the event any claims are asserted by a third party in connection with the Products, RWI will in addition to any other right arising under these Merchant Terms, at law or in equity, have the right in its sole discretion to immediately terminate the promotion and distribution of the same, and to take such other actions as it deems to be reasonably necessary in order to comply with applicable law or to enable RWI to avail itself of the “safe harbour” or other exculpatory provisions of applicable law, including without limitation laws relating to the infringement of proprietary rights.
9. Taxes – In any jurisdiction where RWI is liable to collect and remit to the local taxing authority any value added tax, goods and services tax, sales or use tax, or any similar taxes, RWI will, from revenues received for each Transaction, remit such tax as may in the opinion of RWI be required, from time to time. For that purpose, the Merchant will provide to RWI, upon request, such information as RWI many consider reasonably necessary for the remittance of such taxes. RWI will not be liable for any such taxes in any applicable jurisdiction where RWI does not have a fixed establishment or is otherwise not subject to tax. In no event will RWI be responsible for the payment of any tax based on the Merchant’s income.
10. Customer Data – RWI agrees the Merchant will own all right, title and interest in the Customer Data. RWI covenants that it will abide by the terms of this Agreement and not disclose Merchant Customer Data to any third-party or parties without the express written authorization from the President or CEO of Merchant, except where such disclosure is required to perform the Services indicated in section B(1), after full and complete disclosure of the intended use by and identification of such third party or parties, and in full compliance with all applicable privacy policies, laws and regulations.
C. Affiliate Services
1. Affiliates – The Merchant acknowledges and agrees that RWI may use an affiliate (“Affiliate”) to promote the Products. In the event that any Customers purchase Products as a result of the activities of an Affiliate:
a. RWI will be entitled to collect a commission or other payment from the Merchant calculated in the manner provided in Section D(2) (the “Affiliate Fee”),
b. the Affiliate will be entitled to collect a commission established by the Merchant, in consultation with RWI (the “Affiliate Commission”);
and RWI may deduct those amounts from any sum to be remitted to the Merchant in accordance with Section D.
2. The Merchant covenants and agrees that all Affiliates remain the sole property of RWI.
1. Payment Periods – In this Section, “Payment Period” means each of the 24 bi-monthly periods in any calendar year, on the 1st day and 16th day of each month.
2. Affiliate Service Payments – Where RWI is appointed to provide the Affiliate Services in accordance with Section A(3) above, the Merchant will pay:
a. An Affiliate Fee to RWI, equal to the amount shown in Schedule A of this agreement;
b. An Affiliate Commission to the Affiliate entitled to payment in accordance with Section C(1).
3. SafeCart™ Services Payments – Where RWI is appointed to provide the SafeCart™ Services in accordance with Section A(3) (or otherwise pursuant to the subsequent written agreement of the parties), the Merchant will pay to RWI in the manner specified in the Merchant Terms and on account of fees, taxes and disbursements (collectively, the “SafeCart™ Fees”) a sum equal to that shown in Schedule A of this Agreement.
4. Chargeback Fees – Where a chargeback is incurred for any reason (other than the fault of RWI), the Merchant will pay to RWI the sum of Twenty-Five ($25.00) United States Dollars, (the “Chargeback Fees”). A chargeback refers to a scenario where a credit card processor or bank unilaterally revokes a prior transaction, which may be done under the rules of the credit card banking system for such reasons as fraud or suspected fraud, End User complaint, or other reasons determined at the sole discretion of the credit card processors and/or banks.
5. The Affiliate Fees and the SafeCart™ Fees to be made pursuant to these Merchant Terms are collectively referred to in this Agreement as the “Service Fees”.
6. Summary – During the currency of these Merchant Terms and for a period of one month thereafter, RWI will, within seven (7) business days following the end of each Payment Period deliver to the Merchant a summary (the “Statement”) of each Transaction, an accounting of the revenue received therefrom, a summary of all refunds issued to Customers, and any sums payable by, charged back to or otherwise held back from the Merchant in accordance with these Merchant Terms (including without limitation the Service Fees, Affiliate Fees and Affiliate Commissions), during that Payment Period.
7. Remittance – Prior to the end of each Payment Period RWI will remit to the Merchant, on account of the immediately preceding Payment Period, a sum equal to the aggregate gross revenue received from each Transaction during the immediately preceding Payment Period, less:
a. the sum payable to RWI for each Transaction, being the greater of the amounts calculated in the manner set out in the Merchant Terms or $2.00, plus any applicable taxes;
b. any sums held back from or otherwise charged back to the Merchant in accordance with these Merchant Terms, by RWI including without limitation all Services Fees, Affiliate Fees and Affiliate Commissions.
8. Holdback – The Merchant acknowledges and agrees that RWI may hold back a portion of any sum due and payable to the Merchant if RWI, acting reasonably, determines that such hold back is necessary to secure the payment and performance of all liabilities, obligations, and indebtedness that the Merchant may incur under this Agreement or as the result of any breach of this Agreement. Without prejudice to any other right of RWI arising under these Merchant Terms or otherwise at law or in equity, the Merchant acknowledges and agrees that RWI may also refuse to make payments to the Merchant as aforesaid, notwithstanding that such payments may then be due, if RWI determines, in good faith, that the Merchant has breached any applicable law or regulation or otherwise has breached a material term of this Agreement.
9. Audit – The Merchant will have the right, notice given not more than five (5) business days following issuance of a Statement, to audit the same, in order to verify the accuracy of the amounts payable to the Merchant and RWI. Where such audit reveals a shortfall in the amounts payable by RWI, RWI will forthwith make payment to the Merchant. Where such audit reveals a surplus in the amounts payable by RWI, such surplus will be set off against future payments to be made by RWI.
E. Representations, Warranties, Covenants
1. Mutual – Each party represents and warrants and covenants to the other that:
a. it has full right, power and authority to enter into and fully perform its obligations under these Merchant Terms;
b. the execution, delivery and performance of these Merchant Terms does not conflict with any other agreement to which it is a party or by which it is bound;
c. to the best of its knowledge, any products, materials, or information provided in order to perform or otherwise created in the performance of its obligations under these Merchant Terms will not infringe or otherwise violate the rights, including intellectual property rights of any other person or entity; and,
d. it will substantially comply with all material laws and regulations (including without limitation legislation with respect to privacy and all export control laws and regulations applicable to that party) applicable to the activities of that party in connection with this Agreement.
2. Merchant – The Merchant represents and warrants to RWI and further covenants that:
a. it is the owner or otherwise the duly authorized licensee of all right, title and interest in and to the Products, including the right to grant to RWI the non-exclusive right to market, distribute, and sell the Products;
b. neither the Product nor any web site or other promotional or marketing material of the Merchant will contain any content which in the opinion of RWI is or may be construed as being defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate, or otherwise contravene the Can-Spam Act of 2003 (United States) or other similar legislation applicable either to the Merchant or to RWI;
c. it will at all times advise RWI of specific restrictions and changes in restrictions, howsoever caused, with respect to the sale or export of the Products arising under all applicable export control laws and regulations;
d. none of the Products nor any web site of the Merchant will violate any applicable law or regulation or otherwise contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized actions on a computer system, or which transmits data from a user’s computer without notice to and the express prior consent of the user;
e. it will use best efforts to ensure that the Merchant’s web site and RWI has at all times current, valid contact information, including without limitation current names, electronic mail addresses and telephone numbers for all corporate, technical support and customer support matters;
f. it will use best efforts to ensure that purchasers of the Products will receive prompt, adequate replies to all technical and support queries directed to the Merchant;
g. it will not make any warranty or representation on behalf of RWI, or otherwise represent to any person that the Merchant (and those for whom the Merchant is in law responsible) is or are RWI agents;
h. it will not without the express written consent of RWI, where RWI has been appointed to provide the Affiliate Services, such consent not to be unreasonably withheld, make any change to any Product related landing page or website or to any offer of the Merchant with respect to any Product.
3. RWI – RWI represents and warrants to the Merchant and further covenants that:
a. SafeCart™ will comply in all material respects with the laws applicable in the jurisdictions where RWI conducts business;
b. the services provided by RWI in accordance with these Merchant Terms do not contravene the provisions of the CAN-SPAM Act of 2003 (United States);
c. RWI does not permit its network or computer systems to be used in the distribution of materials which it believes to contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program, or any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; and,
d. RWI will use commercially reasonable efforts to ensure that those for whom it is in law responsible comply with all applicable federal, provincial, state or local laws.
RWI acknowledges and agrees that the Merchant will not be responsible for any act of or omission by RWI, those for whom it is in law responsible or any Affiliate. RWI agrees to take such steps as may be reasonably necessary to terminate any Affiliate determined to be responsible for a breach of any applicable federal, provincial, state or local law, and further to cooperate with the Merchant in addressing such breach with the said Affiliate.
4. RWI Disclaimer – EXCEPT AS EXPRESSLY SET OUT IN SECTION E, PARAGRAPHS 1 AND 3 OF THE MERCHANT TERMS, RWI DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER HEREUNDER, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY PROMISE OF ANY LEVEL OF SUCCESS WITH RESPECT TO ANY CAMPAIGN, IN PART OR WHOLE.) RWI DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE INSTALLATION, IMPLEMENTATION, CUSTOMIZATION, USE, OPERATION OR SUPPORT OF THE SOFTWARE, WHETHER IN AN ACTION BASED IN CONTRACT OR IN TORT, EVEN IF RWI HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Force Majeure – RWI will not be liable to the Merchant for any delay, interruption, or failure to perform its duties, covenants, and obligations under these Merchant Terms if caused directly or indirectly by an event of Force Majeure. An event of Force Majeure includes, but is not limited to acts of God or of the public enemy; changes in the laws of Canada or British Columbia; acts of civil or military authorities; governmental restrictions or controls on imports, exports, or foreign exchange; wars, declared or undeclared; revolution; riot; insurrection; civil disturbances; fires; floods; storms; slides; explosions; earthquakes; epidemics; quarantine restrictions; strikes or lockouts, including work stoppages or slow-downs; labour shortages; freight embargoes; power failure; mechanical or electrical breakdown or non-availability of any machinery, equipment, or service provided by any person or corporation not a party to this Agreement; delay, interruption, or failure, occasioned by a computer software or hardware problem, and delays by carriers, suppliers or materials shortages.
F. Representations, Warranties, Covenants
1. The Merchant covenants and agrees:
a. when selling the Products, to use only those languages supported by RWI;
b. when promoting the Products, to ensure that pricing is equal to the suggested retail price provided by the Merchant to RWI;
c. when promoting the Products, to send promotional messages only to those individuals who have explicitly requested or agreed to receive communications specifically from the Merchant;
d. that it will not make or permit to be made any statement to any individual which is false or intentionally misleading;
e. to maintain, on each web site owned or operated by or on behalf of the Merchant (including without limitation those web sites listed in these Merchant Terms and replaced from time to time), a working link or working links to SafeCart™, in compliance with the standards established, from time to time, by RWI;
f. to used best efforts, firstly, to promote SafeCart™ by the Merchant as the Merchant’s preferred payment processing service and, secondly, to ensure that purchases of any Products on each web site owned or operated by or on behalf of the Merchant (including without limitation those web sites listed in these Merchant Terms and replaced from time to time) are, by default, processed using SafeCart™;
g. that, except with the express prior written consent of an authorized representative of RWI, the Merchant will not pay to any Affiliate a commission with respect to a given Transaction equal to more than seventy-five percent of the net Transaction Fee, after deduction of any sum due and payable to RWI;
h. that, except with the express written consent of an authorized representative of RWI, which consent will not be unreasonably withheld, the Merchant will not offer any campaign, contest or promotion directly or indirectly using RWI services or resources;
i. to provide prospective customers with access to the Merchant’s privacy policies concerning the collection and use of information including the Customer Data;
j. that refunds with respect to Products sold using SafeCart™ or by way of the Affiliate Services will be undertaken only in compliance with the policies of RWI, as established and amended, from time to time;
k. not to engage in any activity which in the opinion of RWI may directly or indirectly interfere with the ability of RWI to keep accurate Transaction records or otherwise impact the natural flow of customer traffic to any web site from which RWI may use in relation to the sale or licensing of the Products;
l. to refrain from promoting the Products by using rebates, discounts or other promotions in a manner which purports to obligate RWI without the express written consent of RWI;
m. to maintain a working link to the RWI Affiliate recruitment web page located at the universal resource locator address provided by RWI to the Merchant, from time to time, on each web site owned or operated by or on behalf of the Merchant and, in the opinion of RWI, used for the recruitment of Affiliates;
n. that it will not at any time during the currency of these Merchant Terms and for a one year period thereafter seek, in any way, to undermine the goodwill of RWI or otherwise directly or indirectly solicit or entice or attempt to solicit or entice, work away from RWI or otherwise solicit or entice or attempt to solicit or entice any of the Affiliates to enter into an arrangement with the Merchant or with any party who, in the opinion of RWI is a competitor thereof.
1. Confidentiality – One party (the “Disclosing Party”) may, from time to time, disclose to the other (the “Other”) certain information relating to the Disclosing Party’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Other acknowledge that Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in these Merchant Terms obligates the Disclosing Party, it directors, agents or employees to disclose or grant to the Other access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Other covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in these Merchant Terms; (b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, agent, or employee of the Other without the prior written consent of the Disclosing Party, which may be unreasonably and arbitrarily withheld. The Other acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Other agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the Disclosing Party. Upon termination of these Merchant Terms, or otherwise on demand by the Disclosing Party, the Other agrees that it will promptly return the Confidential Information to the Disclosing Party, uncopied and undistributed.
2. General Disclosure – Unless RWI has provided prior, express written consent, the Merchant will keep the Merchant Terms strictly confidential, and may not make any disclosure of the same to any person. RWI may publish a press release or similar statement regarding these Merchant Terms between RWI and the Merchant at any time following the execution of the Merchant Terms. The Merchant acknowledges and agrees that, for that purpose and in any RWI marketing or promotional materials, RWI may publish the Merchant’s name and logo.
1. Termination by RWI – RWI may terminate these Merchant Terms at any time on Notice of thirty (30) business days. RWI may also terminate these Merchant Terms at any time, without Notice, in the event of:
a. the breach by the Merchant of any provision of these Merchant Terms;
b. the assertion against the Merchant of any claim of product liability;
c. the violation by the Merchant or anyone for whom the Merchant is in law responsible of the intellectual property rights of either RWI or any third party;
e. the violation by the Merchant of any local, provincial, state or federal statute, including, without limitation, an act of dishonesty such as embezzlement or theft;
f. conduct on the part of the Merchant that is detrimental to the business or the financial position of the RWI, as determined in the sole discretion of the RWI;
g. conduct on the part of the Merchant or anyone for whom the Merchant is in law responsible which is of such a serious and substantial nature that, as determined in the sole discretion of RWI, it would injure the reputation of RWI or of the customers, clients, affiliates, agents, or employees of RWI; or
h. any act of the Merchant or any agent, authorized representative or creditor of the Merchant which results in the Merchant becoming subject to the provisions of the Winding-Up Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or any similar legislation applicable in the jurisdiction where the Merchant is ordinarily resident.
2. Termination by the Merchant – The Merchant may terminate these Merchant Terms at any time on Notice to RWI of not less than thirty (30) business days.The Merchant may terminate these Merchant Terms at any time on Notice to RWI of not less than thirty (30) business days.
3. Payment – Notwithstanding termination of this Agreement for any reason, the Merchant will remain liable to pay to RWI any sum due and owing hereunder, and for that purpose the Merchant covenants and agrees that the obligations arising under Section D of these Merchant Terms will survive termination of the this Agreement for any reason.
4. Return of Property – Immediately following termination of this Agreement, for any reason, each party will promptly return to the other any Confidential Information in its possession or control. The Merchant will cease any use of any property belonging to RWI, including without limitation any and all intellectual property, and will thereafter remove from any web site, publication, brochure or other promotional material any hyperlink, logo, reference to RWI.
1. Mutual Indemnity – Subject to any limitations expressed elsewhere in these Merchant Terms, each party covenants and agrees to indemnify and save the other and any officer, director, employee, parent company, subsidiary or affiliated company harmless from and against any and all claims, actions, proceedings, suits, losses, costs, expenses, or damages (collectively, the “Claims”) suffered or incurred by or arising from any breach by the indemnifying party of any of the its representations, warranties, covenants or obligations arising under these Merchant Terms. Each party agrees (i) to notify the other in the event that it becomes aware of a Claim or the possibility of a Claim; (ii) to cooperate with the indemnifying party, at the indemnifying party’s expense, in responding to, defending or settling any such Claim; (iii) to keep the indemnified party fully informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying party, including the decision to defend or not defend the claim or complaint; (iv) that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claim, including the payment of any award of damages and/or costs to any third party, will be paid by indemnifying party; (v) that no decision or action concerning or governing any final disposition of the Claim will be taken without notice to indemnified party; (vi) that the indemnified party may elect to participate as a party in any litigation involving the Claim to the extent that the court may permit, and any additional expenses generated by such participation will be paid by the indemnified party subject to the possibility of recovery of some or all of the additional expenses from the complainant.
2. Limitation of Liability – The liability of RWI for any breach of these Merchant Terms or otherwise with respect to any cause of action that the Merchant may have at law or in equity, is limited to the greater of the amount of money invoiced by RWI and actually paid by the Merchant and Five Hundred ($500.00) United States Dollars. In no circumstance will RWI be liable to the Merchant for any consequential, indirect, special, punitive or incidental damages or lost profits, of the Merchant or the Merchant’s clients, successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. In no circumstance will RWI be liable to the Merchant for any act or omission of any Affiliate of RWI including without limitation any contravention by such Affiliate of the Can-Spam Act of 2003 (United States), any rule, regulation or guideline issued by the United State Federal Trade Commission or other similar legislation, rule, regulation or guideline applicable either to the Merchant or to RWI. Without limiting the foregoing, RWI will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Merchant or third parties, Merchant’s equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of RWI.
3. Limitation Period – In no event will the Merchant commence any action, suit or proceeding against RWI for any Claim more than twelve (12) months following the date upon which the Merchant became or should reasonably have become aware of the existence of said Claim.
J. Modification of These Merchant Terms
1. Amendment – The Merchant acknowledges and agrees that notwithstanding any contrary provision, RWI may modify the terms and conditions of these Merchant Terms at any time (the “Modifications”).
2. Notice – RWI acknowledges and agrees that it will:
a. publish any such Modifications on the RWI web site together with a statement as to the date upon which such Modifications are to come into force and effect (the “Effective Date”); and
b. provide the Merchant with Notice of both the Modifications and Effective Date, at least three (3) business days in advance of the Effective Date.
3. Deemed Acceptance – In the event that the Merchant fails to terminate these Merchant Terms in accordance with Section H, Paragraph 2, prior to the Effective Date applicable to a specific set of Modifications, the Merchant will be deemed to have read, acknowledged and agreed to the same. The Merchant will thereafter be bound by the Modifications, which for all purposes will form part of these Merchant Terms.
1. Jurisdiction – These Merchant Terms will be interpreted, construed and enforced in all respects in accordance with the laws of the Province of British Columbia, excluding both the United Nations Convention on Contracts for the International Sale of Goods, and any rules applicable to the conflict of laws. The Merchant agrees and attorns to the exclusive jurisdiction of the superior court in the Judicial District of Victoria, in the Province of British Columbia with respect to any dispute arising as a direct or indirect consequence of these Merchant Terms or any right or obligation of either party arising under these Merchant Terms.
2. Interpretation – Section and paragraph headings used in these Merchant Terms are for the convenience of the parties only, and will not for any purpose be used in the interpretation or construction of any term or condition of these Merchant Terms.
3. Assignment – The Merchant may assign its rights and obligations under these Merchant Terms, provided that notwithstanding any such assignment the Merchant will at all times remain liable for the payment to RWI of any sum that becomes due and payable in accordance with these Merchant Terms. RWI may broker or assign these Merchant Terms at any time, without liability or restriction.
4. Waiver – Neither these Merchant Terms nor any term or condition of these Merchant Terms will be deemed waived, and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.
5. Partner – While RWI and the Merchant intend by these Merchant Terms to establish a contractual relationship, it is not the intention of either party to undertake a joint venture or to make RWI in any sense an agent, employee, or partner of the Merchant. The parties expressly agree that they are independent contractors. Neither does these Merchant Terms in any way create a partnership between the Merchant and RWI (or any parent, subsidiary or affiliate of RWI, including without limitation Paretologic, Inc.), whether at common law or in accordance with any applicable statute, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
6. Severance – In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
7. Notice – Any notice or other communication (“Notice”) permitted or required in accordance with these Merchant Terms will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address noted in the Merchant Terms. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile, sent by electronic mail or personally delivered.
8. Binding – These Merchant Terms will become binding upon RWI only following execution of the Merchant Terms by the Merchant, delivery of the Merchant Terms to RWI by facsimile, at the number provided on the Merchant Terms, review and approval of the Merchant Terms, and notification of acceptance of the Merchant Terms, delivered from RWI, by electronic mail, to the Merchant. Thereafter, these Merchant Terms will ensure to the benefit of and be binding upon the respective successors, heirs and assigns of both RWI and the Merchant.
9. Survival – Sections E, G and I, together with those provisions of these Merchant Terms that, by their nature, require performance following termination, or have application to events that may occur after termination, will survive the termination of these Merchant Terms, howsoever caused.
10. Entire Agreement – This Agreement constitutes the entire agreement between the parties with respect to the matters herein set out, and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written. RWI has not made or given any warranty, representation or promise not expressly set out in these Merchant Terms, and the Merchant agrees that it has executed the Merchant Terms and agreed to be bound by the same without reliance upon any such warranty, representation or promise.
Schedule A: Service Fees (ALL FEES IN USD)
1. Service Fees (per Transaction) on transactions greater than $10.00 USD = 6.95% + $1.00
2. Service Fees (per Transaction) on transactions less than or equal to $10.00 USD = 4.95% + $0.50
* Minimum service fee (per Transaction) of $0.75 USD applies to all Transactions.