Terms of Service
1. Services
(a) E-xact hereby agrees to provide to Customer a payment gateway platform (the "Software") that securely transmits electronic payment authorization messages between the Customer's point of sale or online checkout and the Customer's designated payment processor or acquiring bank (the "Services"). E-xact provides the set-up, testing support, and Certification required for the Customer to connect to the Services. The Customer hereby agrees to retain E-xact to provide the Services on the terms and conditions hereinafter agreed to. For clarity, E-xact operates solely as a payment gateway; a technology platform that facilitates the communication of transaction authorization messages in real time. E-xact does not move, hold, settle, or have custody of funds at any point in the transaction lifecycle.
(b) Upon Customer's successful completion of set-up and testing by E-xact, a terminal identification number will be provided to Customer (the "Certification") after which Customer can access the Services. Testing required by the Customer of the Services is the responsibility of the Customer. Prior to Certification, E-xact can unilaterally decide not to Certify the Customer and this Agreement will forthwith be null and void from the outset.
(c) Additional services may be required, including but not limited to, message resubmission or any other work due to Customer's input data which is incorrect, incomplete, or improperly formatted (the "Additional Services").
(d) Exact will make commercially reasonable efforts to provide access for transactions generated at Customer devices 24 hours per day, 7 days a week, except for Planned Outages on three days advance notice to Customer which if possible will be limited to Sundays or Mondays, 12:00 am to 8:00 am Pacific Standard time.
(e) Support for a software version will cease six months after the release date of an updated version.
2. Customer Obligations
(a) Customer will complete registration details and provide the necessary hardware and software to use the Services.
(b) Customer shall meet all technical specifications set out in protocols issued by Exact and described in Schedule A, attached hereto. The customer will provide three days advance notice of changes that would affect the transmission of authorization messages. The customer will comply with all other reasonable requirements that Exact may impose from time to time, with 5 business days advance notice.
(c) Customer will treat as confidential any information with respect to Exact’s technology and business procedures, including the terms of this Agreement.
3. Payment
(a) The fees for the Services and Additional Services are set forth in Schedule B, attached hereto.
(b) Invoices are rendered monthly and are due on net 30 days basis. Billing by Exact commences upon the activation date of the Customer’s production account on Exact’s system. Account balances outstanding after 30 days from the billing date will be charged at a monthly compound interest rate of 2% (24% nominal per year).
(c) Automated payment by Customer will be by a valid credit card, electronic funds transfer, or a pre-approved payment method (see Schedule B). As a condition of the Services, the Customer provides E-xact with gateway configuration credentials including but not limited to merchant identification numbers, terminal identification numbers, and acquiring bank connection details (collectively, the "Gateway Credentials"). These Gateway Credentials are required solely for E-xact to transmit electronic payment authorization messages on behalf of the Customer and do not grant E-xact access to, control over, or custody of the Customer's funds or settlement accounts. In the event of non-payment, E-xact reserves the right to suspend the Services in accordance with Section 3(d) and to pursue collection of outstanding amounts through all available legal and contractual remedies, without relieving Customer of its obligation to make payments on time and in accordance with the terms of this Agreement.
(d) If payment is overdue by 5 days, Exact, without notice, may suspend the performance of the Services until payment is made.
(e) Customer agrees to pay Exact without set-off or counterclaim.
(f) Exact shall be entitled to reasonable attorney’s fees and all costs of collection proceedings.
4. Terms and Termination
(a) Unless otherwise terminated pursuant to this Section 4, Section 10 of Schedule B, the initial term of this Agreement is for one year from the date of this Agreement. This Agreement will automatically renew for additional terms of one year each unless either party notifies the other in writing at least 90 days prior to automatic renewal that it does not wish to renew this Agreement.
(b) In the event that either party is materially in default of the performance of its obligations pursuant to this Agreement (excluding Customer’s non-payment for Services and Additional Services) or if Customer is in default of its merchant services or similar agreement with its credit card provider or banking institution, the non-defaulting party may, by giving notice to the other, terminate this Agreement for cause as of the date specified in such notice of termination provided that 15 days notice has been given.
5. Exact's Properties and Specifications
(a) All specifications, hardware, technical documentation, and data collected as a result of providing the Services, which is not personally identifiable, and software utilized or developed by Exact in connection with the Services (the “Property”) are and remain the sole property of Exact.
(b) Exact may provide technical documentation manuals, documents, and other material, which remain the property of Exact and are proprietary and may not be disclosed to any party outside of this Agreement.
(c) Customer is hereby granted a non-exclusive, non-transferable license during the term of this Agreement to use the Software necessary to implement the Services for the exclusive purpose of accessing the Services and for no other purpose. Customer shall not exceed the authorized use of, modify, alter, translate, decompile or reverse engineer and copy (except for regular back-up) the Software or remove proprietary notices, labels, or marks.
(d) Upon termination of this Agreement, Customer shall return all Property to Exact, destroy all copies of the Software, and cease any and all access to or use of the Services. At the request of Exact, the Customer will provide a sworn declaration that it has complied with the requirements of this Section 5.
(e) If a modification of the Software as requested by Customer and agreed to by Exact, all charges associated with such modification shall be paid by Customer at Exact’s then prevailing rates. Payment of such charges does not alter Exact's ownership of the original or modified Software, which remains with Exact.
6. Privacy and Confidentiality
(a) Customer’s and Clients’ Information (“Personal Information”) will be used solely for providing the Services and be maintained in confidence in compliance with the privacy laws of the jurisdictions in which Exact conducts business. Each party shall update the other in advance, of any changes to their protection of Personal Information to ensure full compliance by each party with the privacy laws.
(b) The Customer, upon reasonable notice, can visit Exact's offices to examine the measures taken and the safeguards used by Exact to protect the Personal Information.
(c) The parties will treat as confidential, information about each other’s proprietary information and this agreement. This clause does not apply to any information which a party can show (i) is or becomes generally available to the public other than as a result of the improper or unauthorized disclosure by a party (ii) was lawfully available by a party prior to its receipt from a party, (iii) was or is made available to a party by a third-party source unless the party knows or ought to know that such third party does not have the right to disclose such information, or (iv) is independently acquired or developed by a party without violation of this Section 6.
7. Limitation of Liability
The service is provided “as is.” Exact makes no representations or warranties of any nature whatsoever, either express or implied, with respect to the services or the performance of its obligations under this agreement, including without limitation, any representation or warranty of merchantability, non-infringement or that the service will perform any function or have any capability. Exact specifically disclaims the fitness of the service for the customer’s particular purpose.
Without limiting the generality of the foregoing, Exact and its affiliates and suppliers and their directors, officers, and employees are not responsible or liable to the Customer, Customer’s clients or third parties for any damages, whether in contract or tort, including but not limited to incidental or consequential damages, indirect, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use of or inability to use the services, even if Exact has been advised of the possibility of such damages. The customer and its clients agree that damages awarded by a court of the competent authority for whatever reasons shall be limited to cumulative liquidated damages of CDN $100 and no more. This remedy is exclusive.
8. Force Majeure
Neither party is liable for any delay, interruption, or failure in the performance of its obligations if caused by acts of God, war declared or undeclared, fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labor disputes, or other similar events beyond the control of the party affected which may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving particulars of the event. The party so affected shall use reasonable efforts to eliminate or remedy the event and resume performance.
9. Continuation of Obligations
The provisions of sections 3, 5, 6, and 7 shall survive the termination of this Agreement and shall thereafter remain in full force and effect.
10. Changes to the Agreement
Exact may modify this Agreement provided that at least 30 days written notice of each change to this Agreement is given to the Customer. In the event of a modification by Exact, the Customer may terminate this Agreement upon 30 days written notice. Customers terminating this Agreement, for the above or any other reason(s), may do so upon 30 days written notice sent by facsimile, electronic mail, or regular mail. The effective cancellation date will be 30 days from the time notice is received by Exact - date stamped per electronic mail or fax header line, or postmarked date - unless a future cancellation date is requested by the Customer (of no less than 30 days).
11. Notice
Any notice or other communication (in this section “Notice”) required or permitted to be given or made hereunder shall be in writing and shall be well and sufficiently given or made if:
(a) delivered in person during normal business hours on a business day and left with a receptionist or other responsible employee of the relevant Party at the applicable address set forth below;
(b) sent by any electronic means of sending messages, including facsimile transmission, which produces a paper record (an “Electronic Transmission”) and is deemed received on the date of transmission;
(c) sent by certified or first class mail and deemed received on the fourth business day thereafter, unless any general interruption of postal services due to strike, lockout, or other cause exists or is threatened in which event only (a) or (b) shall be used.
12. Independent Contractors
The parties are independent of each other and this Agreement does not create the relationship of partnership, principal-agent or joint venture between Exact and Customer.
13. Government Matters
The customer agrees that it will not export or re-export the Software without obtaining the prior written consent of Exact and all applicable export licenses and governmental permits.
14. General Provisions
This Agreement is governed by the laws of the province of British Columbia without regard to that province’s conflict of laws rules. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision nor shall such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound. Neither this Agreement nor any rights under it may be assigned, transferred, shared or delegated by the Customer without the prior written consent of Exact. All amendments to this Agreement, other than those provided for in Section 12, must be in writing and signed by both parties by an authorized signatory of the respective party. This Agreement sets forth the entire understanding between the parties and supersedes any prior discussions or representations of the parties.
15. Escalation
(a) In the event of a security-related event discovered by the customer, the customer must contact Exact Transactions (Canada) Ltd. immediately via phone or email.
(b) In the event of a fraudulent incident discovered by the customer, the customer must contact Exact Transactions (Canada) Ltd. immediately via phone or email.
(c) If the customer would like to report an Exact employee or any other merchant of Exact Transactions (Canada) Ltd. for any offense, they may use our phone and email for whistler blower purposes.
Phone: 604-691-1670
Email: support@e-xact.com