The Processing Services are a web-based payment processing service by which Paxum serves as an agent for Merchant to receive payments on Merchant’s behalf in respect of the sale of Merchant’s Product to its Customers.
So long as Merchant is not in breach of this Agreement, Merchant shall be granted a unique and private Account accessible through the Processing Service and the Paxum Platform. The Account shall be a record of Merchant Transactions and Fees. Paxum shall provide Merchant with access codes for the Account. Merchant may not disclose such codes or permit any third party to use them on penalty of forfeiting the whole of the Account. Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify Paxum, the Paxum Group and their respective owners, directors, officers, employees, agents, licensors, suppliers, assigns and successors in interest (the “Paxum Indemnified Parties”) for any and all claims, losses or other liabilities arising therefrom.
It is forbidden for a Merchant to use the Processing Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity (all of which are listed below in the Glossary). Merchants who breach this clause shall, at the discretion of Paxum, be subject to Account termination for cause.
The following Persons are prohibited from using the Processing Services:
Merchant hereby instructs Paxum to deliver Invoices to Customers by way of the Account and the Paxum Platform, as per instructions provided to Paxum by Merchant or Merchant's Customer in the Account.
Customer Payment of Invoices
When a Merchant wishes to receive payment through the Processing Services, the Merchant hereby appoints Paxum as its agent for the purposes of:
- (i) presenting Invoices to Customers of the Merchant;
- (ii) receiving Customer Transaction payments; and
- (iii) issuing Receipts to Customers. Merchant hereby instructs Paxum to issue Invoices, accept Transactions and issue Receipts through the Processing Services, in the amounts specified by the Merchant through Account, and the Merchant agrees that Paxum is acting on behalf of the Merchant in carrying out the foregoing activities and Merchant shall honor the terms of each Invoice, Transaction and Receipt as if they were carried out by the Merchant itself.
Deposit Account Settlement
Unless otherwise instructed by Merchant, Paxum shall instruct Customers receiving Invoices to remit the face-value thereof by depositing such amounts into a Deposit Account of Paxum. Paxum undertakes to release to Merchant any and all Customer funds deposited in the Deposit Account, less applicable Fees and other liabilities of Merchant to Paxum hereunder. Merchant shall give the Customer full credit for the deposited amount as of when Paxum has received the Transaction funds, and Customer shall not receive reduced credit with Merchant on account of Fees or other amounts that Paxum may deduct from settlements to Merchant. Unless required by its banking suppliers or Applicable Law, Paxum shall not settle Transaction funds to any recipient other than Merchant.
Paxum Regulatory Status
Paxum is not a bank or money transmitter. Paxum is registered with the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”), as a money services business because, despite not being a money transmitter, it is deemed to be a money services business pursuant to FinCEN Guidance FIN-2014-R009, Issued: August 27, 2014, Subject: Application of Money Services Business Regulations to a Company Acting as an Independent Sales Organization and Payment. Outside of the U.S., with respect to non-U.S. clients, Paxum is a money services business and duly registered with the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”).
Paxum is a payment processor for bills of the Merchant and acts as agent of Merchant in the receipt of Transaction payments made by Customers on Invoices pursuant to the terms of this Agreement. Funds deposited by Customers into the Deposit Account are not insured by Paxum or any third party and could be subject to seizure by Paxum creditors, if any. Paxum reserves the right to monitor use of the Processing Services to ensure compliance with this Agreement. If it is determined Merchant is not in compliance with this Agreement, Paxum reserves the right to take appropriate action including, but not limited to, assessing additional Fees or suspension or termination of the Account. Merchant acknowledges that such monitoring of use may include determining whether or not the Account is accessed from multiple IP addresses, as well as noting excessive use or other irregularities.
With Paxum registered and compliant with the rules and regulations of FinCEN and FINTRAC, the Processing Services are provided in compliance with the Paxum anti-money laundering program (“AML Program”). Merchant shall provide any and all information requested by Paxum in order to comply with Paxum’s AML Program.
Merchant Release of Customer
MERCHANT AGREES THAT, ON PAXUM RECEIPT OF A PAYMENT TRANSACTION FROM A CUSTOMER OF THE MERCHANT, THE CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO THE MERCHANT IN RESPECT OF SUCH AMOUNT PAID. THE CUSTOMER OF THE MERCHANT IN EACH TRANSACTION IS NAMED AS A THIRD PARTY BENEFICIARY UNDER THIS AGREEMENT SO THAT THE CUSTOMER CAN ENFORCE THE TERMS HEREOF AGAINST THE MERCHANT IN SO FAR AS THE MERCHANT ATTEMPTS TO COLLECT A GIVEN TRANSACTION PAYMENT WHICH HAS ALREADY BEEN PAID BY THE CUSTOMER TO PAXUM’S DEPOSIT ACCOUNT. NO DELAY IN PAYMENT BY PAXUM TO MERCHANT OF A GIVEN TRANSACTION AMOUNT, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF PAXUM ASSETS OR BANKRUPTCY OF PAXUM, SHALL SERVE TO DIMINISH THE FOREGOING RELEASE OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER IN RESPECT OF WHICH PAYMENT HAS BEEN MADE BY SUCH CUSTOMER TO PAXUM PURSUANT TO THE TERMS OF THIS AGREEMENT.
Customer Merchant Relationship
Paxum is not party to the Merchant Relationship that necessitates the Invoice, Transaction or Receipt. Merchant shall indemnify and hold harmless the Paxum Indemnified Parties from any and all claims, losses or other liabilities arising from or in relation to the Merchant Relationship or any Product, including any and all costs associated with the legal defense related to such claims.
No Returns Refunds or Chargebacks
Under no circumstances will Paxum permit any Transaction to be subject to a return, reversal, refund or chargeback unless Paxum believes that the Transaction occurred through a breach hereof by Customer or Merchant or was otherwise in furtherance of alleged or actual illegal activity or Prohibited Activity, in which case Paxum reserves the right to return the face-value thereof to the Customer or withhold the amount thereof pending an order by a court of competent jurisdiction to remit it to Merchant, Customer or a government authority.
Intellectual Property Rights in Processing Services
Merchant is hereby granted a non-exclusive, non-transferable limited right to use the Processing Services for the Term of this Agreement only. Paxum reserves all rights not expressly granted to Merchant in this Agreement. The Processing Services are protected by copyright, trade secret and other Intellectual Property Rights. Paxum owns the title, copyright and other worldwide Intellectual Property Rights in the Processing Services. This Agreement does not grant Merchant any rights to any of the names, trademarks or service marks of Paxum. Merchant may not transfer or assign its right to use the Processing Services under this Agreement.
Merchants shall pay Fees for use of the Processing Services. Paxum shall deduct Fees after the settlement of the Transaction to the Merchant. Where Merchant fails to pay Fees to Paxum under this Agreement or is otherwise liable to Paxum hereunder, Merchant grants Paxum the right to debit the amount of the Fees, plus other amounts, from the Merchant Deposit Account as per the Direct Debit Consent. The Fees set out on the Site, such as they may be from time to time, are incorporated herein by reference and form a part of this Agreement. Fees collected are not refundable.
It is agreed between the parties that performance by Paxum hereunder, whether the representations, warranties and covenants of Merchant are fulfilled or not, shall in no manner whatsoever waive the benefit, to Paxum, of any such representations, warranties and covenants of Merchant. Merchant hereby warrants and covenants to Paxum that:
- Duly Constituted.
The Merchant is a business or carries on an organized economic activity for profit or otherwise and, if it is not an individual acting in a business capacity, is duly constituted under the laws of its constituting jurisdiction. Further, the Merchant has legal capacity to enter into this Agreement and perform its obligations hereunder. The Merchant is registered as a business in every jurisdiction where it carries on business;
- Duly authorized.
Merchant has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Merchant does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Merchant is subject;
- Notice of Defects.
Merchant will immediately advise Paxum and its Customers in writing of defects in the Product or any claim or threatened claim against it in relation to the Product;
- Compliance with Laws.
The Product conforms to all Applicable Laws in the jurisdictions where Paxum, Merchant and its customers are located. Merchant will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable laws and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold. Merchant shall not use the Processing Services to sell or promote or otherwise facilitate any Prohibited Activities;
- Solely for Business Purposes.
Merchant shall use the Processing Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise;
- Opportunity to Consult Counsel.
Merchant has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof;
- Taxes on Product.
To the extent that Merchant is responsible for collecting taxes from its Customers for the sale of Product, then such responsibility shall be solely that of the Merchant and Merchant shall indemnify and hold the Paxum Indemnified Parties harmless from and against any and all liabilities that they may incur in respect of taxes on Product;
- Paxum Not Liable for Product.
Merchant assumes all responsibilities and liabilities associated with its Product. Paxum assumes no liability for any Product and Merchant shall indemnify and hold the Paxum Indemnified Parties harmless in respect of all claims, liabilities or other losses arising from or on account of any Product.
- Sale of Product.
Merchant shall offer for sale those Products that it advertises on the terms and conditions advertised by the Merchant. Merchant shall not make any false representations concerning any Products. Merchant shall not sell any Product that is illegal in Canada, the United States or any applicable jurisdiction where Paxum, Merchant or Merchant Customers are located or domiciled. This provision shall also apply to all services and products sold by the Merchant, whether or not the Processing Services are used in relation thereto.
- Maintenance and Service.
Merchant shall be exclusively responsible for any and all support and maintenance related to any Product and it shall supply such support and maintenance to Customer in a prompt, professional manner and on reasonable terms. While Paxum assumes no obligation in this regard, Paxum reserves the right but not the obligation to forward all correspondence concerning a Product to the Merchant.
FAIR CREDIT REPORTING ACT CONSUMER DISCLOSURE AND GENERAL AUTHORIZATION
In connection with Merchant procuring Processing Services from the Paxum, Merchant understand that a consumer report as defined in the Federal Fair Credit Reporting Act as amended (“FCRA”), 15 U.S.C. 1681 and following, may be obtained by the Paxum from a consumer reporting agency, of other equivalent laws in the jurisdiction of Merchant (“CRA”). Merchant (which term shall include its guarantors in this consent) understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or credit worthiness, capacity and standing, character, general reputation, personal characteristics, or mode of living. Such information may be used to evaluate whether Merchant is an appropriate candidate for transacting with Paxum and this determination may be adverse to Merchant. The information obtained will not be provided to any parties other than to designated authorized representatives of Paxum. Merchant further understands that the CRA may not give out information about Merchant to Paxum without Merchant’s written consent. Merchant hereby authorizes Paxum now, or at any time while it is party to an agreement with Paxum or otherwise engaged with Paxum, to obtain a consumer report on Merchant. This authorization does not include the release of Merchant’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Merchant understands that, in the event any adverse action is taken against Merchant based in whole or in part on the consumer report, Merchant shall be provided with the name of the CRA and a copy of the report as well as a description of Merchant’s rights under the FCRA. On request, California, Minnesota, and Oklahoma residents can obtain a copy of any consumer credit report requested by Paxum. On request, New York residents can be informed if a consumer credit report has been requested on Merchant by Paxum as well as the name of the CRA providing the report. Merchant and its guarantors have read and understand the above and authorize Paxum to perform the above investigations.
Dispute Settlement Policy
In the event Merchant has a dispute with Paxum related to the Processing Services, Merchant shall provide Paxum with a detailed written description of its concerns. Paxum shall then, within thirty (30) days of receipt of such writing, investigate the matter and provide a response, which response shall be final and not subject to further review except through arbitration as described below. Paxum reserves the right to forward the notice sent to Paxum to a Customer to which it relates, if any, but Paxum will not be a party to such a dispute nor assist in resolving any such Merchant-Customer dispute. Nothing in this provision shall create any liability on the part of Paxum in respect of obligations between Merchants and Customers.
Merchant shall deposit into an account (the “Reserve Account”) maintained by Paxum (or other depository institution approved by Paxum) initially and at any time in the future as requested Paxum, sums sufficient to satisfy Merchant’s current or future obligations as determined by Paxum. Funds, if any, in the Reserve Account shall remain in the Reserve Account until each of the following has occurred:
- (a) this Agreement has been terminated; and
- (b) Merchant has paid in full all amounts owing or that could ever be owed under this Agreement, including, without limitation, all outstanding or uncollected amounts and potential chargebacks from or in respect of Products or Transactions. Paxum may, at its discretion, require that the amount on deposit in the Reserve Account be increased. In no event shall Merchant be entitled to a return of any sums remaining in the Reserve Account before three hundred (300) days following the effective date of termination of this Agreement.
Paxum may, at its discretion, deposit into the Reserve Account funds it would otherwise be obligated to pay Merchant, for the purpose of establishing or maintaining the Reserve Account in accordance with this Agreement, if Paxum determines such action is reasonably necessary to protect its interests. Merchant shall maintain at all times a balance in the Reserve Account sufficient to protect Paxum against losses resulting from Transactions or otherwise in respect of Merchant.
Paxum may, at its discretion, apply deposits in the Reserve Account against any outstanding amounts owed by Merchant under this Agreement or any other agreement between Merchant or any of its Affiliates and Paxum or any of its Affiliates. Also, Paxum may debit the Reserve Account to exercise its rights under this Agreement to collect any amounts due to Paxum including, without limitation, rights of set-off and recoupment. Without limitation, Paxum may, at its discretion, offset any amounts owing to it from any amounts it would otherwise be obligated to settle to Merchant.
Guarantor hereby unconditionally, jointly and severally, guaranties Merchant’s performance and satisfaction of all the covenants, representations and warranties set forth in the Agreement. Paxum may collect amounts owing to it hereunder from Guarantor without exhausting its remedies against Merchant.
Merchant shall defend, indemnify and hold harmless the Paxum Indemnified Parties from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) arising out of or resulting from:
- (i) Merchant’s failure to comply with its obligations under this Agreement;
- (ii) Merchant’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Merchant;
- (iii) the alleged or actual negligent or willful acts or omissions of Merchant or Merchant’s agents and/or employees;
- (iv) any statements, claims, representations or warranties made by Merchant or Merchant’s agents and/or employees, relating to the Products or any other matter;
- (iv) Merchant’s Product; and
- (v) Merchant’s operation of its business including, without limitation, Merchant’s treatment of or relationship with its Customers.
Term and Termination
This Agreement shall be effective commencing on the date that Merchant has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and for thirty (30) days thereafter (the “Initial Term”). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive thirty (30) day periods (each a “Renewal Term”), unless earlier terminated in accordance with the terms hereof. The Initial Term and all renewals, if any, shall be referred to herein as the “Term”.
Either party may terminate this Agreement at any time on notice to the other party. Paxum reserves the right to suspend supply of the Processing Services or terminate this Agreement without notice to Merchant in the event that Paxum determines, in its sole discretion, that continuing to perform hereunder would expose Paxum to excessive security, financial or reputational risk.
- Procedure upon Termination.
Upon any termination of this Agreement, Merchant shall no longer be entitled to use the Account, Processing Services or the Site. All provisions regarding indemnification, representations, warranties, liability and limits thereon and Confidential Information shall survive termination and termination of this Agreement shall not relieve the Merchant of its obligations to pay accrued Fees or other liabilities to Paxum hereunder. On termination, Transactions pending settlement at the time of termination shall be settled notwithstanding the termination, subject to a right of offset in favor of the Paxum to offset unpaid Fees or other liabilities of Merchant to Paxum under this Agreement.
Paxum reserves the right to discontinue the Service at any time, provided that such discontinuance shall not interfere in settlement of Merchant funds already in possession of Paxum less applicable Fees and other liabilities of Merchant to Paxum.
Merchant agrees that, during the Term hereof and thereafter
- (i) neither Merchant nor any of its Affiliates will directly or indirectly disclose any Confidential Information; and
- (ii) Merchant shall treat such Confidential Information with the same degree of care and security as it treats its most confidential information, but in no event with less than a reasonable degree of care. Upon any termination hereof, Merchant shall return all Confidential Information in its possession to Paxum. Paxum may, at its discretion, share any Merchant information with any Paxum Group member or other third party if necessary to supply the Processing Services.
LIMITATION OF LIABILITY
- NO WARRANTIES. THE PROCESSING SERVICES ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAXUM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE PROCESSING SERVICES PROVIDED BY PAXUM OR THAT THE OPERATION OF THE PROCESSING SERVICES WILL BE INTERRUPTION OR ERROR FREE.
- LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NONE OF PAXUM, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, SUPPLIERS, AGENTS OR LICENSORS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO MERCHANT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF PAXUM HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL PAXUM’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE MERCHANT, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT (AND ALL OTHER AGREEMENTS BETWEEN PAXUM AND MERCHANT) EXCEED THE FEES ACTUALLY PAID TO PAXUM BY MERCHANT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- Force Majeure. Paxum shall use its commercially reasonable efforts to perform its obligations hereunder, however, none of Paxum, its Affiliates, shareholders, directors, officers, suppliers, agents or licensors shall be liable for any loss resulting from the activities of Merchant, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Paxum’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Paxum’s obligations hereunder shall be suspended during any of the foregoing circumstances without liability on the part of Paxum for such suspension.
- Notices. Any notice, demand, request or other communication to Merchant hereunder shall be delivered to Merchant by posting it to the Merchant’s Account and/or, at Paxum’s option, by e-mail to the e-mail address provided on establishment of the Account. Any notice, demand, request or other communication to Paxum required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested to Paxum at the postal address provided therefore on the Site and addressed to the ‘Legal Department’
- Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or agents or employees of one another or as authorizing either party to obligate the other in any manner. Merchant shall not:
- (i) bind Paxum to any contract or agreement;
- (ii) incur any obligation on behalf of Paxum;
- (iii) release, assign or transfer any agreement, claim, security or any other asset of Paxum;
- (iv) borrow or lend any money in the name of Paxum;
- (v) submit to any claim or liability related to the Processing Services; or
- (vi) allow judgment to be taken or confessed against Paxum.
Merchant, being an independent contractor, shall not receive as compensation, or be reimbursed, for any of the following:
- (i) work materials that Merchant may use in performing hereunder,
- (ii) business facilities, telephone, automobile or any other equipment,
- (iii) any Merchant employee benefit,
- (iv) reimbursement for any other cost or expense incurred by Merchant in its promotion of the Processing Services hereunder.
- On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by Merchant or by execution of a written acceptance of the terms hereof by Merchant, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
- Amendments to this Agreement. From time to time Paxum will post amendments or revisions to this Agreement, including, without limitation, amendments to Fees, on the Site. Paxum will provide notice of these amendments or revisions to Merchant through the Site. If the amendment or revision is required in order for Paxum and/or the Processing Services to remain in compliance with applicable laws or payment processor regulations, or is required by Paxum’s financial institution or Applicable Law, then the amendment or revision shall take effect as of when it is posted to the Site. If, on the other hand, the amendment or revision is not required under Applicable Law or for the Processing Services to remain in compliance with requirements of a payment processor or financial institution, then the amendment shall take effect as of the date stated in the Site notice and, provided Merchant does not close its Account prior to that date, then Merchant shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Paxum may reasonably prescribe.
- Assignment. None of Merchant or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Paxum, which consent may be withheld for any reason, at Paxum's sole discretion. Paxum may assign any of its rights or obligations hereunder without prior notice or consent of Merchant.
- Successors. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Merchant shall not assign any of its rights or obligations under this Agreement to any third party without the prior written consent of Paxum and any assignment without such consent shall be void and of no effect.
- Missing Merchants. If, for whatever reason, Paxum is unable to contact a Merchant to complete a Transaction for their benefit, then Merchant shall retain title in such unsettled funds, but after ten (10) months, Paxum reserves the right to remit the amount thereof to government authorities responsible for taking possession of lost property in the jurisdiction of the Merchant or that of Paxum.
- Enforcement. The Merchant shall be liable for and shall indemnify and reimburse Paxum for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Paxum in the enforcement of this Agreement, or in collecting any amounts due from Merchant hereunder, or resulting from any breach of any of the terms or conditions of this Agreement by Merchant.
- Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
- Severability. If any provision of this Agreement is held invalid or unenforceable by an arbitrator it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
- Governing Law and Choice of Forum. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the Canadian Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada, and the venue of any arbitration commenced under this section shall be in Montreal, Quebec, Canada. Arbitration shall take place in English before a single arbitrator who is a practicing commercial lawyer licensed in the Province of Quebec.
- Whole Agreement. References to "this Agreement" include any Account, Fees, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Paxum and furnished to Merchant from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
If Merchant has any questions concerning this Agreement, please contact Paxum through the contact information set out on the Site.
The following Sections shall survive termination of this Agreement: Definitions, 9 AML Compliance, 10 Merchant Release of Customer, 11 Customer Merchant Relationship, 13 Intellectual Property, 14 Fees, 15 Merchant Representations, 16 Personal Information, 18 Dispute Settlement Policy, 19 Reserve Account, 20 Personal Guarantee, 21Indemnification, 22(c) Procedure upon Termination, 23 Confidentiality, 24Limitation of Liability, 25General, 27Survival and 28 Glossary.
The following defined terms are used in this Agreement:
- “Account” means an account made available to a Merchant through which Merchant can transmit instructions or receive information in relation to the Processing Services which Account may be, at the discretion of Paxum, integrated with a Paxum Group account;
- “Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest;
- “Applicable Laws” shall mean all applicable laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction;
- “Application” means the paper or online application completed by Merchant when applying for the Processing Services all of which is incorporated herein by reference;
- “Confidential Information” means all proprietary, secret or confidential information or data relating to Paxum and any of its Affiliates, operations, employees, independent sales organizations, agents, products or services, clients, customers or potential customers, Merchant, users or merchants. Confidential Information shall include, without limitation, merchant lists, all Merchant agreements and all parts thereof, financial or other data in any format, computer access codes, instruction and/or procedural manuals, payroll information, human resource or personnel information, business strategies and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. In order for Merchant to perform hereunder, Paxum will be obliged to disclose to Merchant certain Confidential Information concerning the Processing Services and Paxum’s business;
- “Customer” means a person or entity who wishes to make a payment to Merchant through the Processing Services for a Product of the Merchant;
- “Deposit Account” means a bank account of Paxum maintained in its capacity as an agent of a Merchant for the purpose of accepting payments on behalf of Merchant;
- “Direct Debit” means Automated Clearing House payment transaction or such other form of electronic debit or credit as is applicable to the Merchant Deposit Account;
- “Direct Debit Consent” means consent by the Merchant permitting Paxum to initiate debits from and credits to the Merchant Deposit Account by Direct Debit;
- “Fees” means those amounts for which Merchant is liable to pay to Paxum in consideration of the Processing Services as posted on the Site from time to time;
- “Guarantor” means the individual or individuals identified as principals of the Merchant and guarantors of the Merchant on acceptance of this Agreement by the Merchant;
- “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any province, state, country, territory or other jurisdiction;
- “Invoice” means an electronic document that represents an amount owing from a Customer to a Merchant for which the Merchant wishes to receive payment by way of the Processing Services;
- “Merchant” means the business that is identified in the Application and has accepted this Agreement as such through the Site or the Paxum Platform;
- “Merchant Deposit Account” means a bank account of the Merchant designated by the Merchant as the account into which Transaction amounts should be deposited but shall, for payment of Fees or other amounts owing to Paxum, in any case, include all accounts of Merchant with any other entity in the Paxum Group. Merchant shall designate the Merchant Deposit Account by inputting relevant information into its Account profile on the Site;
- “Merchant Relationship” means the agreement or other relationship between a Merchant and a Customer where either wishes to make use of the Processing Services in relation thereto;
- “Merchant Relationship”“Paxum Group” means any one of Paxum, Paxum Inc (Belize) or any of their Affiliates;
- “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, other forms of entity, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives thereof, acting in such capacity;
- “Processing Services” means the service of Paxum acting as an agent of a Merchant for the purpose of: (i) informing Customers of the Merchant concerning how Transactions may be completed for the benefit of the Merchant; (ii) serving as an agent of the Merchant for the purpose of accepting payment from Customers; and (iii) serving as an agent of Merchant to deliver Receipts to Customers for payment to Merchant by way of Transactions;
- “Product" means any good or service for sale by Merchant for which Merchant wishes to receive payment through the Processing Services;
- “Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following: any act that is illegal in the United States or in the jurisdiction where the person carrying out the activity is resident, domiciled or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital currencies; direct marketing; inbound or outbound telemarketing businesses; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Platform Services as a means to transfer funds between bank accounts held in the same name; using the Platform Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Platform Services in a manner that Paxum or any Payment Network reasonably believes to be an abuse of the payment card system or a violation of Rules; using the Platform Services in any manner that could damage, disable, overburden, or impair Paxum including without limitation, using the services in an automated manner; using the Platform Services in violation of the terms of this Agreement, as reasonably determined by Paxum; using the Platform Services that in any way assists User or others in the violation of any law, statute or ordinance; using the Platform Services to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs; using the Platform Services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Platform Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent; using the Platform Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; using the Platform Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Platform Services to provide User or User’s customer with a cash advance from User’s or customer’s own credit card or to help others to do so; using the Platform Services to send or receive what Paxum considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Platform Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or weapons including replicas and collectible items; weight loss programs; wire transfer money orders;
- “Receipt” means a Merchant receipt delivered by Merchant or Paxum to a Customer of Merchant that serves as proof of payment of a Transaction amount by the Customer to the Merchant, by way of the Processing Services;
- “Site” means https://www.paxum.com or such other site as Paxum may use to supply the Processing Services; and
- “Transaction” means a Product-related payment transaction by way of the Processing Services.