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Merchant Agreement
This Merchant Agreement (“Agreement”) contains legal obligations and constitutes a legally binding agreement between you (“you”, “your”, or “Merchant”), the person accessing and using the Services, and Gratify Fintech Canada Inc., and its corporate affiliates (“Gratify”, “we”, “us” or “our”). Please read this Agreement, the Gratify polices, and any other documents incorporated herein by reference that may apply to you carefully before using or accessing the Services, as they contain important information regarding your legal rights, remedies and obligations, including but not limited to, various limitations and exclusions on damages you may claim against us and indemnification obligations you owe to us.
This Agreement governs the relationship between you and us, and sets forth the terms and conditions on which you may access and use (a) the websites operated by Gratify from time to time, (b) our mobile application and such other applications as may be made available by Gratify from time to time, (c) the software embedded in our websites or applications, the features and functionality thereof, and (d) the services and products provided by Gratify, either online, in person or via telephone, including, without limitation the Gratify gateway and merchant portal (collectively, the “Services”). Any reference to the “Services” includes a reference to any part of the Services.
Agreement Acceptance
By signifying your acceptance or agreement of this Agreement, or by accessing or using the Services, including by signing up for a Gratify merchant account, you or the organization you represent that you have read, understand, accept, and agree to be bound by and comply with, all of the terms and conditions of this Agreement and our Privacy Policy, which forms an essential part of this Agreement. You should print off or save a local copy of this Agreement for your records. You represent that you have the authority to enter into this Agreement and, if you are using the Services on behalf of an organization, that you are an authorized representative of that organization and have the power and full legal authority to enter into this Agreement on behalf of such organization, and that you or the organization you represent intend to be legally bound by this Agreement.
If you do not agree with these statements or the terms and conditions set out below, you cannot access or use the Services.
Amendments
We reserve the right, in our sole and absolute discretion, revise, update and amend this Agreement and our policies from time to time. The latest version of this Agreement will be posted on our website. We will provide you with written notice of any material changes to this Agreement or our policies at least 30 days prior to the effective date of such change unless a shorter timeframe is required to comply with any applicable laws, rules, regulations, orders or regulatory policies, to address any material business risk, or for the purpose of ensuring the security or integrity of data, IT systems, or our business processes. It is your responsibility to review the latest version of this Agreement and you agree to periodically review this Agreement in order to be aware of any changes. By continuing to access or use the Services after we have made a change to this Agreement or any of our policies, you will be deemed to have accepted and agreed to all of the terms and conditions of this Agreement or our polices, including all such changes, whether given notice or not. If any of the terms and conditions of this Agreement or our policies, or any future changes thereto, are not acceptable to you, you may: (a) terminate this Agreement; (b) discontinue your use of the Services; and/or (b) delete your Account.
Privacy
You acknowledge and agree that your use of the Services is subject to the terms of our Privacy Policy, which is incorporated herein by reference. Please refer to the Privacy Policy for information on how Gratify collects, stores, uses, discloses, retains, disposes and otherwise processes the personal information provided to us.
Gratify Services
Our Services allow customers to pay for goods or services offered by you in installments. Gratify may permit you to use the Services online and/or in-store. When your customers make purchases using the Services, we will pay the amounts payable by the customer to you on behalf of that customer in accordance with the terms of this Agreement in exchange for the customer agreeing to repay such amounts to us in accordance with our Terms and Conditions of Use, as well as the payment schedule we have made with the customer.
We will assume all risk in collecting payments from the customers that make purchases using the Services, except where liability transfers to you in accordance with this Agreement based on the Buy Now Pay Later model in use at your business:
Traditional model – Gratify assumes risk in collecting.
Co-Funded model – Gratify assumes risk in collecting.
Merchant Funded model – Merchant assumes risk in collecting.
EligibilityIn order to access and use the Services, you must:
1Register for a merchant account (your “Account”);
2. Be of the age of majority in your province or territory of residence;
3. Be able to lawfully enter into and form contracts under applicable law;
4. If you are using the Services on behalf of an organization, you must be an authorized representative of such organization with the authority to bind the organization to this Agreement;
5. Provide a valid email address;
6. Provide us with your bank account information and direct debit details or credit card information, as well as compliance documentation if not supplied by your payment facilitator so that we may verify these details; and
7. Provide any other information to Gratify when requested.
By accessing or using the Services, you confirm that: (a) you are at least of the age of majority in your province or territory of residence and are able to form a binding contract with Gratify; (b) if you are using the Services on behalf of an organization, you are an authorized representative of such organization with the authority to bind the organization to this Agreement; and (c) you or your organization accept this Agreement and agree to comply with this Agreement. If we learn that someone under the relevant age is using the Services, we will terminate access to the Services for such user.
We reserve the right to (i) suspend your Account (and your access or use of the Services) or any payment date until your bank details or credit card information have been verified; and (ii) terminate your Account (and your access or use of the Services) immediately if such information cannot be verified. By providing us with your bank details or credit card information and accepting this Agreement, you authorize us to withdraw funds from your bank account or process payment on your credit card in accordance with the terms of this Agreement. You agree to provide us with true, accurate, current and complete information in connection with this Agreement and that you will not provide us with any information that is false, inaccurate, or misleading. You represent and warrant that all information you provide to us in connection with this Agreement (including any information contained in documents we may request from you), is true, accurate, current and complete. You further agree to promptly update any such information as required to comply with the foregoing.
General Obligations
Technical Integration of Gratify Gateway. You agree to comply with any reasonable direction given by us in respect of the integration of the Services on your website and/or in-store. If you have implemented the Services other than in accordance with the materials or documentation that Gratify has provided to you, you must obtain written approval from Gratify before you allow customers to make purchases through the Services.
Availability. You must make the Services available for your customers to use on your website and/or in-store. You must continue to allow customers to make purchases through the Services in accordance with this Agreement during the term of this Agreement, except: (a) during any period of suspension imposed by us in accordance with the terms of this Agreement; or (b) as otherwise notified by us in our sole and absolute discretion.
Merchant Portal. You agree that the email address that you provided to Gratify as part of the merchant onboarding process will be automatically added to the Services and granted access to the Gratify merchant portal. You may grant additional individuals access to the merchant portal and/or remove access through your Account. You acknowledge and agree that you are solely responsible for maintaining the confidentiality and security of your username, password and other Account credentials and accept sole responsibility for all use of your Account and any activities that occur or take place using your Account, including the actions of any person to whom you have granted access to the merchant portal or any automated process. You will promptly notify us if you believe there has been or could be any unauthorized access to your Account by third parties or if you are aware of any other breach of security in relation to the Services.
Website Control. You agree that you control and will continue to control the content of your website. You must not provide customers with any information about Gratify or our Services that is false, misleading or inaccurate. You must not make any warranty, representation or statement to any customer relating to Gratify or our Services other than those contained in the Gratify policies, included on our website, or included in materials provided by us, as may be updated from time to time, or as otherwise expressly permitted by Gratify in writing. You must not use any technology, device, software or hardware to damage, intercept or interfere with our Services, or any software or technology that we use to provide the Services.
Display of Gratify Branded Materials. You agree to include a description of Gratify and our services on your website and/or in-store, which description may be provided by us or must otherwise be approved by us in advance. You further agree to comply with any reasonable directions we provide to you about how such description is to be displayed on your website and/or in-store. You must comply, within seven (7) business days comply, with any reasonable request by Gratify to modify, replace, or remove any and all Gratify materials displayed on your website and/or in-store.
Customer Disputes. You must co-operate with us and provide such reasonably assistance as we may require to promptly resolve all disputes with your customers. You agree to promptly respond to any correspondence received from Gratify in relation to customer disputes, but in any event within 2 business days. You must also ensure the contact details you have provided to Gratify are always current, complete and accurate.
Compliance with Laws. You must comply with all applicable laws in fulfilling your obligations under this Agreement including in relation to each customer purchase/order made through the Services. You must assist Gratify in complying with our obligations under any applicable laws as reasonably directed by us. You also agree to comply with all data protection laws as well as not do anything that would cause Gratify to breach such laws. You must comply with the following;Retain all required notices and consents to and from your customers which allow you to collect and handle their data in accordance with this agreement.Take reasonable steps to ensure all data is protected against misuse and/or loss, and from unauthorized access, use, or modification or disclosure.Have a Privacy Policy that complies with the Privacy Act and ensure that all personal information about your customers is handles in accordance with that policy as well as this agreement.You must notify Gratify as soon as possible when you have become aware that you have breached your any of your obligations or if a compliant has been made by a third-party in relation to your use of data handling.Should you become aware of any misuse, loss, interference, unauthorised access, modification or disclosure of data you must comply with any applicable data breach notification requirements under the data protection laws, consult with Gratify before making any public statement about the data breach that names Gratify, and take steps to prevent any further data breach.
Restricted and Prohibited Goods. You acknowledge and agree that Gratify reserves the right, in our sole and absolute discretion, to restrict the use of the Services with respect to certain types of goods and/or services. You must not:allow the Services to be used to purchase any of the categories of “Prohibited Goods or Services” listed below at any time;allow the Services to be used to purchase any of the categories of “Restricted/High Risk Goods or Services” without successfully complying with any additional underwriting, due diligence and/or conditional approval requirements established by Gratify; orallow the Services to be used to purchase any other category of goods or services determined by Gratify, in its sole discretion, and communicated to you, to be dangerous, inappropriate or high risk.If you allow the Services to be used to purchase any of the of the foregoing categories of restricted goods or services, Gratify reserves the right to suspend or terminate your Account (including your access and use of the Services).“Prohibited Goods or Services” includes:Lottery and/or gambling;Pornographic materials, content or experiences;Gang or hate group affiliated products;Dangerous goods, including, but not limited to, weapons of any kind, guns, weaponized knifes, explosives or explosive materials, militarised products, hunting equipment, armoured goods or clothing, fireworks/firecrackers; andGoods or services that infringe third party intellectual property rights, including, but not limited, to counterfeit goods and pirated content “Restricted/High Risk Goods or Services” includes:Travel, including, but not limited to, travel packages, flights, hotels, cruises, tour operators;Cannabis products and/or services (medicinal or recreational);Jewellery;Adult merchandise, including, but limited to, sex toys, erotic literature, sexual enhancement products;Nutraceutical and/or pharmaceutical products; andSubscription boxes and/or services.
Gratify Purchase/Order ObligationsConfirmation of Acceptance. When a customer makes a purchase using the Services, the Services will promptly issue a notice of acceptance or rejection of the purchase to you. Gratify exercises sole discretion regarding the decision to issue confirmation of acceptance on each purchase made using the Services. You must only deliver or provide goods and/or services to a customer after you have received confirmation of acceptance of such purchase from Gratify. Gratify will not be liable to you for goods and/or services delivered or provided by you without having first received confirmation of acceptance of the purchase from Gratify. The minimum cart size for our Services is $50.
Delivery of Goods/Services. When a customer makes a purchase online using the Services, you are responsible for ensuring that all goods and/or services are promptly delivered or provided to the customer, within the expected delivery period as represented to the customer at the point of sale. Goods must be available to be shipped to the customer at the time of the purchase/order is made using the Services. When a customer makes a purchase in-store using the Services, the goods and/or services must be delivered or provided to the customer immediately upon receipt of confirmation of acceptance of the purchase from Gratify, unless you have expressly agreed to an alternative delivery time with the customer.If we suspect that goods and/or services have not been delivered or provided in accordance with the timelines set out herein, or if a customer refuses to pay us or issues a chargeback request on the basis that goods and/or services have not been delivered or provided to them, we may ask you to provide us with proof of delivery. If we make such a request, you agree to provide us with any information reasonably requested by us to prove the goods and/or services were delivered or provided to the customer, including, but not limited to, the shipping carrier name, tracking number and confirmation that the goods were delivered to the address specified by the customer when making the purchase through the Services. If you do not provide this information, or otherwise fail to demonstrate to our satisfaction that goods and/or services have been delivered or provided to the customer, within two (2) business days of our request, then you must, if requested by Gratify, refund to us any settlement amount we have paid you and reimburse us for any chargeback fees we may incur in connection with the relevant purchase/order. We will, subject to any accepted chargebacks, refund to the customer any amounts paid by the customer to us in connection with the purchase/order made through the Services upon our receipt of the settlement amount received from you. You agree that Gratify also reserves the right, in its sole discretion, to withhold any settlement amounts owed to you until we are satisfied the applicable goods and/or services have been delivered or provided to the customer. You also agree that, if Gratify is required to refund a customer due to a breach of this Agreement by you, Gratify is entitled to recover any monies owed to us from you.
Surcharges. You may pass on the cost of accepting Buy Now Pay Later transactions to your customer provided the surcharge is not deemed excessive. Surcharges must not be discriminatory against the customer in any way. Merchants should notify Gratify of their intent to surcharge customers by contacting support@gratifypay.com.
Damaged Goods. You are responsible for ensuring that appropriate insurance policies are in place for the delivery of your goods or provision of your services to customers. Gratify will not be responsible for any damage caused to goods during delivery, or any loss or damage caused in connection with the supply of goods and/or services.
Billing, Payments, and Fees. All payments made under this Agreement must be made in Canadian dollars.We will pay the settlement amounts associated with each purchase/order made through the Services to you on the payment date for such purchase/order, as a single transaction, netting the aggregate settlement amounts for all purchases/orders due to you on the payment date against all amounts then due to us under this Agreement, as described in this section, by direct transfer to the account designated by you in writing.We cannot guarantee against any delays of receipt of settlement amounts caused by the banking system or other external factors.In connection with your use of the Services, you agree to pay to Gratify the fees set out in the pricing sheet. Payer fees are listed below.
PAYER Fees for orders $49 or less
Late Payment – charged once per purchase. $1 per $10 for any balance owing on the total order, excluding fees $1 Min.
Failed Payment – charged per missed installment.$2
Monthly account fee – charged if in arrears > 30 days.
Charged every 30 days delinquent.$5
Deferred Payment – Charged when payer chooses to push an installment payment by a week. $1 per $10 that is deferred, excluding fees. $1 Min.
PAYER Fees for orders $50 or more
Late Payment – charged once per purchase. $5 per $50 for any balance owing on the total order, excluding fees $10 Min.
Failed Payment – charged per missed installment. $1 per $50 that is declined, excluding fees.$2 Min.
Monthly account fee – charged if in arrears > 30 days. Charged every 30 days delinquent.$5
Deferred Payment – Charged when payer chooses to push an installment payment by a week. $1 per $50 that is deferred, excluding fees. $2 Min.
You must not accept any payments or ongoing repayments for any goods and/or services on our behalf.If for any reason you receive any part of a payment relating to a purchase made through the Services directly from a customer you will promptly notify us and provide the details of the customer payment, including the identity of the customer, the goods and/or services to which the customer payment relates, the amount of the customer payment, and the portion of the payment received by you; and you authorize us to set off any part of any customer payment received by you directly from a customer against amounts we owe to you under this Agreement.
Gratify reserves the right to suspend, extend or delay the payment date or otherwise suspend, extend or delay the payment of settlement amounts to your bank account: (a) until your banking details have been verified; or (b) should Gratify determine, in its sole discretion, that your business presents a high level of risk, including but not limited to issues relating to non-delivery of goods and/or services, excessive late delivery of goods and/or services, excessive customer complaints, excessive disputes or refunds, or we reasonably consider that other activity associated with your use of our Services is in breach of any law, or you are bankrupt or insolvent, or if we are required by law, court order or regulatory body. For the avoidance of doubt, where payments of the settlement amounts to your bank account are suspended, extended or delayed, Gratify reserves the right to deduct from the suspended settlement amounts any amounts you owe Gratify under this Agreement, including your liability to Gratify arising from a breach of your representations and warranties. If we suspend, extend or delay the payment date for any reason under this clause, we will communicate to you:
(i) the general reason for the suspension, extension or delay,
(ii) any information we may reasonably require to assist us with progressing the release of funds, including proof of shipment, and
(iii) a timeline for releasing the funds, if applicable.
Customer Payments, Returns, and Refunds. Your policies, including your refund policy, and agreements with customers must comply with the applicable laws in your jurisdiction, including but not limited to consumer protection laws. You must consider any customer request for returns in good faith and in accordance with your policies and the applicable laws. You will be responsible for processing any returns in accordance with your policies.All refunds are subject to your refund policies. Customers must contact you directly to request all refunds. Gratify will process all refunds once notified by you that the refund has been approved.Gratify will process refunds up to 90 days after the purchase or in accordance with the terms of your refund policy, whichever is less.Nothing in this section will prevent customers from exercising any other rights in respect of the return of their goods, including exchange or repair of the goods, or store credit for the goods.If goods are accepted for refund by you then any refund amount due in relation to the return is owed to Gratify and not the customer directly. You must upon receipt of the returned goods promptly, but in any event within three (3) business days of such receipt, notify Gratify of the return and enter the refund amount via the merchant portal or the associated API. All purchases made through the Services that are accepted for refund must be refunded via the Gratify tender type. If a refund for such goods is processed using another payment method, we reserve the right to hold you liable for the settlement amount associated with the goods accepted for refund via another tender type.You will be liable to Gratify for the refund amount on the applicable payment date, and we may recover those funds by deducting the refund amount from the settlement amount relating to the returned goods. Gratify will cancel any future payments due by the customer to Gratify and/or refund the customer any amounts paid by the customer to Gratify.
Cross Border Transactions. Gratify may, in its sole and absolute discretion, authorize you to use the Services for transactions relating to certain customers located in certain regions/jurisdictions outside of Canada (“Cross Border Transactions”) to allow those customers to use their Gratify account to purchase goods and/or services offered on your website in Canada.
If Gratify authorizes you to use the Services for Cross Border Transactions, this section shall apply and will form part of your obligations under this Agreement.
1. All terms and conditions of this Agreement shall apply to Cross Border Transactions in the same manner as they would apply in relation to any other purchase/order made through the Services;
2. You are responsible for arranging delivery of goods in respect of all Cross Border Transactions and for any and all additional costs and charges, including, but not limited to, any applicable taxes, duties, delivery charges and other applicable amounts associated with any Cross Border Transaction;
3. You must ensure that any and all additional costs and charges associated with a Cross Border Transaction, including, but not limited to, any applicable taxes, duties, delivery charges and other applicable amounts, charged by you to the customer in respect of a Cross Border Transaction are included in the sale price and shipping costs or are otherwise clearly represented to the customer at the point of sale prior to the completion of the purchase;
4. To allow for foreign exchange settlement, the payment date for settlement amounts and fees, and for refund amounts, in respect of a Cross Border Transaction, may be extended in each case by three (3) additional business days; and
5. Gratify will make all payments to you in respect of a Cross Border Transaction in Canadian dollars.
Confidentiality
Except where permitted or required under this Agreement, each party agrees not use or disclose any of the other party’s Confidential Information. “Confidential Information” includes any non-public information provided or made accessible by one party to the other party or its representatives, including, but not limited to, any software, technology, specifications, guidelines, documentation or other data or materials relating to such party, its business and its operations.
Each party may use or disclose the Confidential Information of the other party as follows:
1. Where the other party consents in writing;
2. When required to do so to comply with any applicable law, court order or any regulatory authority;
3. To a director, officer, employee, agent, contractor, professional adviser, investor or financing source, or potential investor or financing source of the other party whose duties reasonably require such disclosure, provided such person has agreed in writing to keep the information confidential;
4. With respect to your Confidential Information provided in connection with a specific purchase through the Services, by Gratify to process transactions and service customer accounts or as otherwise provided in our Privacy Policy;
5. When reasonably necessary for the purposes of any legal or arbitral proceedings; or
5. As may otherwise be necessary to fulfill its obligations and enforce its rights under this Agreement.Each party must take all reasonable steps to protect the Confidential Information of the other party, to prevent any unauthorized use, disclosure or access of, or loss of or damage to, the Confidential Information of the other party in its possession of control, and to ensure that no Confidential Information is used or disclosed, directly or indirectly, in any way that is detrimental or adverse to the other party. Each party must ensure that each person or entity that is provided with or given access to any Confidential Information on behalf of such party has been directed not to use or disclose such Confidential Information except as permitted or required under this Agreement and each party shall be responsible for any breach of these confidentiality obligations by such person or entity as if it were its own.
Intellectual Property and Software
IP ownership. Except as expressly provided in this Agreement, you acknowledge and agree that nothing in this Agreement shall grant either party or any of its affiliates any rights of ownership in any of the intellectual property of the other party.
Gratify IP. As between you and Gratify, Gratify (or its affiliate or licensors, as applicable), owns any and all rights, title and interest in and to our trademarks, tradenames, service marks, logos, domain names and other distinctive brand elements (the “Gratify Trademarks”) and the Services and any and all data and content included in or made available through the Services, including all text, graphics, illustrations, logos, button icons, images, digital downloads, photographs, pictures, audio, sound effects, sound recordings, features, functionality, design, presentation, videos, visual effect, data compilations, software, computer code, tools, patches, updates and the “look and feel” of the Services, and all intellectual property rights related to the foregoing and the Services, including copyright, trademark, patent, trade secret and any other proprietary rights (the “Gratify IP”).
We grant you a non-exclusive, personal, non-transferable, non-sublicensable, revocable, limited licence to use the Gratify Trademarks and Gratify IP solely in connection with your use of our Services and as may otherwise be necessary in carrying out your obligations under this Agreement. The Gratify Trademarks and Gratify IP must be used in accordance with any use or brand guidelines notified to you from time to time by us. You acknowledge that your use of the Gratify Trademarks and Gratify IP for any purpose not expressly permitted by this Agreement is strictly prohibited. Without limiting the generality of the foregoing, you must not (a) download, copy, modify, alter, reproduce, distribute, publish, transmit, broadcast, display, sell, supply, license or otherwise use or exploit any of the Gratify IP or the design or layout of the Services or any part thereof without our or, where applicable, our affiliate’s or licensor’s, express prior written consent, or (b) create any work of authorship, derivative work or proprietary right based on the Services (including Gratify IP). At our request or on termination of this Agreement, you must immediately discontinue the use and display of any Gratify Trademarks or Gratify IP. If this Agreement is amended to remove your right to offer the Services online or in-store, you must immediately discontinue the use or display of any Gratify Trademarks and Gratify IP associated with the discontinued right and must return any associated promotional materials or other content or materials incorporating any Gratify Trademarks or Gratify IP.
Your IP. You permit Gratify to use your name, trademarks, trade names, logos, domain names and website details, and other distinctive brand elements (“Merchant Trademarks”) in any public announcements or press releases, in our marketing materials (including social media outlets), and in relation to any directory listings of merchants using the Services. You warrant that you are the owner of all rights, title and interest in and with regards to the Merchant Trademarks and you have the right, authority, and legal capacity to grant any rights to the Merchant Trademarks to us as set out in this Agreement.
You further agree that we may share, re-post and otherwise use any images and other content you include on your social media accounts or websites, or pages on our websites, social media accounts and Gratify marketing materials, without your consent, and without any payment to you, provided we credit you as the source of such images or content. To extent that any of your images or content contain third-party content you warrant that you have the relevant licences and approvals from such third parties for us to be able to use such images and content in the manner describe herein.
Feedback
Any feedback, comments, suggestions or ideas related to any of the Gratify products or services, or any features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product/service/feature names, or any related documentation, artwork, computer code, diagrams, or other materials, related thereto (collectively, “Feedback”), that you communicate, send or otherwise provide to us, regardless of what your accompanying communication may say, is provided on a non-confidential and non-proprietary basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way. You hereby grant us an irrevocable, perpetual, non-exclusive, worldwide, fully paid-up, royalty-free, transferable and sub-licensable license to reproduce, distribute, create derivative works of, modify, perform publicly, communicate to the public, make available, publicly display and otherwise use and exploit such Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, in whole or in part, as whether as provided or modified. Your hereby waive any and all moral rights or other rights of authorship you may have in and to any Feedback in favour of Gratify, including any rights you may have in the altered or changed Feedback even if it is no longer agreeable to you. Notwithstanding the foregoing, you agree that Gratify has no obligation to review, consider or implement you Feedback, or to return to you all or part of any Feedback for any reason.
You have been deemed to have warranted to us that you have or own all the necessary legal rights to upload, post, submit or send Feedback and grant us (and our affiliated and service providers, and each of their and our respective licensees, successors and assigns) the license to the Feedback, and the Feedback does not and will not violate any law or the intellectual property, privacy, publicity or other rights of any person. You understand and agree that you are fully responsible for any Feedback you submit or contribute, and you are fully responsible and legally liable, including to any third party, for such content, its accuracy and your right to use it.
Disputes
If any dispute arises between the parties to this Agreement, both parties agree to make a good faith effort to resolve the dispute within 30 days of receipt of written notice of such dispute from the other party. No claim, arbitration, litigation, or other proceeding may be commenced before the parties have attempted to resolve the dispute, unless immediate injunctive relief is being sought. If the parties are unable to resolve the dispute within such 30-day period, the parties may pursue their respective rights under applicable laws with respect to the dispute. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes.
Suspension
We may suspend your access to our Services, including the ability to process refunds and, if we suspect (i) that goods and/or services are not delivered, or (ii) fraud or malicious activity with respect to your Account, we may withhold settlement amounts, by giving you written notice if one or more of the following occur:
1. You have breached, or we suspect that you have breached, any of the terms and conditions of this Agreement;
2. Your company has undergone a change of ownership or control, and we are unable to verify your new ownership, or we determine that we are prohibited from doing business with you under applicable laws as a result of such change of ownership or control;
3. It is necessary to protect our systems or the Services against harm, including, but not limited, if we suspect fraud or malicious activity;
4. You are bankrupt or insolvent;
5. We are unsuccessful in debiting your bank account pursuant to the direct debit agreement;
6. We reasonably believe that continuing to process transactions on your behalf is in breach of any applicable laws; or
7. We consider that your behaviour is in breach of any law or any of our internal policies and procedures.All suspensions will remain in place until the reasons for said suspension have been remedied to our satisfaction.
Termination
Either party may terminate this Agreement immediately by giving the other party written notice of termination if:
1. The other party breaches any of the terms and conditions of this Agreement, and such breach is incapable of remedy or, if such breach is capable of remedy, the other party has failed to remedy such breach within 14 days of the receipt of written notice from the non-breaching party requiring remedy of the breach;
2. The other party engages in any fraudulent activity or malicious conduct;
3. The other party is bankrupt or insolvent; or
4. If we provide you with written notice of a proposed change, you may terminate this Agreement at any time before the effective date of the proposed change by giving us written notice of your intention to terminate this Agreement, which shall be effective on or after the effective date of the proposed change.
Gratify may terminate this Agreement (including deleting your Account and terminating your access and use of the Services) by giving you written notice if:
1. We are unable to verify your direct debit details and/or compliance documentation;
2. We believe that your consumer agreements with customers do not comply with this Agreement including, but not limited to, changes to your policies that in any way affect the ability of your customers to return goods in the manner set forth in this Agreement;
3. We believe that you have breached any of your representations or warranties contained in this Agreement;
4. You are selling any prohibited or restricted goods or services through your website or in-store;
5. We are unsuccessful in debiting your bank account pursuant to the direct debit agreement and any such default is not remedied within two (2) business days;
6. Your Monthly Default Rate is 5% or higher for three (3) or more consecutive months and we are unable to improve this by restricting payment terms and/or payment instruments.“Monthly Default Rate” means the total number of payments by customers in relation to purchases/orders made through the Services that are more than 30 days in arrears divided by the total amount of payments by customers in a particular month.Either party may terminate this Agreement for any reason by giving the other party at least 30 days prior written notice.
Termination of this Agreement for any reason will not affect any rights or obligations that have accrued up to the effective date of such termination and is without prejudice to any of the parties’ other rights and remedies. Gratify, in its sole discretion, may permit or require returns to be processed within 90 days following the termination of this Agreement through the Services, provided they otherwise comply with the applicable terms of this Agreement. For the avoidance of doubt, Gratify’s rights with regards to customer payments received by you, and refunds approved by you, will continue in full force and effect and survive any termination of this Agreement. Upon termination of this Agreement for any reason all rights and licences granted under this Agreement will immediately terminate, except as expressly provided in this Agreement, and you must immediately stop using all Gratify Trademarks and Gratify IP, including removing all references to Gratify and our Services from your website and/or in-store.
Transfers or Assignments
You may not transfer or assign any of your rights or obligations under this Agreement, in whole or in part, without our prior written consent. Gratify may at any time transfer or assign this Agreement, or any of our rights or obligations under this Agreement, to a third-party without your consent. This Agreement will endure to the benefit of and be binding upon you and us and each our respective heir, executors, personal and legal representatives, successors and permitted assigns.
Warranties and Liability
Your Representations and Warranties
You agree, represent, warrant and covenant to Gratify as follows, and acknowledge that Gratify is relying on the accuracy of each such representation and warranty in entering into this Agreement:
1. You do not know of or have any reason to suspect any fraud or suspicious activity relating to the purchase made with Gratify, and neither you nor your employees or agents have concealed or otherwise failed to disclose to us any information of which you or your employees or agents have become aware is contrary to any of the statements made with regards to Gratify purchase or in any other information or documentation provided by you to Gratify, or is otherwise engaged in any fraudulent or misleading conduct in connection with the Gratify purchase/order;
2. The Gratify purchase represents a sale of the goods by you in the ordinary course of your business, and you have provided us with complete and accurate purchase information with respect to each Gratify purchase/order;
3. You have all the licences, approvals and consents necessary to supply the goods and/or services you offer;
4. You will maintain at all times during the operation of this agreement appropriate insurance policies to cover you and your respective employees, officers, contractors and agents for their respective rights, interests and liabilities to third parties for loss or damage to any property and injury or death to any person arising from or in connection with the provision of any services you offer;
5. Any services offered by you will only be performed by personnel of your store with the appropriate level of certification and training required to perform such services;
6. You have delivered or arranged for delivery of all the goods associated with the Gratify purchase/order;
7. With regards to all goods sold, the Customer has, or will have, title to all goods listed and will be clear of all encumbrances, liens and claims; the goods, at the time they were delivered to the customer, were of acceptable quality; all goods match any sample or demonstration model shown to the customer; and the goods, at the time they were delivered to the customer, were fit for any particular purpose which the customer made known to you or your agents or employees; and, in relation to services, they have been, or will be, provided with due care and skill within 14 days from the date of the Gratify purchase/order;
8. You will not allow our services to be used to purchase prohibited goods or services, and without prior written permission from Gratify, allow the services to be used to purchase restricted/high risk goods or services;
9. You have not sought or obtained, and will not seek or obtain, any special arrangement or condition from, nor discriminated in any way against, the customer with respect to the terms of their Gratify purchase; and
10. You will not do anything to prevent any amounts owing to us in connection with any Gratify purchase/order from being enforceable against the relevant customer.
Warranty Disclaimer
To the maximum extent permitted by law: (a) the Services are provided by Gratify and all licenses to Gratify Trademarks and Gratify IP are provided or licensed, as applicable, on an “as is” and “as available” basis, and (b) except as otherwise expressly set forth herein, Gratify does not make any representations or warranties, and hereby expressly disclaims and excludes all warranties, representations, conditions or other terms of any kind, whether express, implied, statutory, or otherwise, (including any implied warranties as to merchantability, fitness for a particular purpose, satisfactory quality, conformance with description or non-infringement). In particular, Gratify does not represent or warrant to you that the Services will meet your requirements; you use of the Services will be timely, secure, error-free or that access will be continuous or uninterrupted; the Services are free of viruses or other harmful components; or defects in the operation or functionality of any software provided to you as part of the Services will be corrected. We make no representations or warranties regarding the amount of time needed to complete processing of payment transactions.
We may change, suspend, withdraw or restrict the availability of all or any part of the Services for business and operations reasons at any time without notice. You are responsible for verifying any information obtained through the Services before relying on it. You understand that you are using the Services at your own discretion, and you freely accept and voluntarily assume all risks, including personal injury, death and property damage or loss, connected with your use of the Services howsoever arising. If you are dissatisfied with the Services or with any of the terms or conditions of this Agreement, you agree that you shall discontinue using the Services.
Your use of the Services may depend on the Internet, including networks, cabling, facilities and equipment that is not in our control. Accordingly: (i) we cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, and (ii) you acknowledge and agree that data, messages, information or materials sent over the Internet may not be completely private or secure.
Liability Limitations
To the maximum extent permitted by law, under no circumstances shall Gratify, our affiliates, and our respective shareholders, directors, officers, employees, contractors and agents (“Gratify Parties”) be liable (jointly or severally) to you or any other person for (a) personal injury, death or property damage or loss connected with your use of the Services howsoever arising, or (b) any indirect, incidental, consequential, special, incidental, punitive or exemplary damages, or any losses or damages for loss of profits, loss of revenue, loss of sales or business, loss of agreements or contracts, loss or damage to goodwill, loss of use or corruption of software, data or information arising from or relating to your use of the Services, the use of or inability to use our Services, or our or your liabilities to third parties howsoever arising (collectively, the “Excluded Damages”). These limitations apply whether the alleged liability is based on tort (including negligence), contract or other theory of liability, even if any of the Gratify Parties have been advised of the possibility of or could have foreseen any of the Excluded Damages.
Under no circumstances will the Gratify Parties’ aggregate liability to you for any and all claims arising out of or related to this Agreement or your use or inability to use the Services exceed $200. For the avoidance of doubt, this does not limit our obligations to pay you any settlement amount due to you under the Agreement.
The foregoing limitations and exclusions of liability will apply even if the above stated remedy fails of its essential purpose and you hereby waive, release and forever discharge the Gratify Parties from and against all of the Excluded Damages. If any applicable authority holds any portion of this section to be unenforceable, then the Gratify Parties’ liability will be limited to the fullest possible extent permitted by applicable law.
All parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.
Indemnification
You agree to indemnify, defend and hold harmless Gratify, our affiliates, and our and their respective officers, directors, employees, contractors and agents from and against any and all claims, actions, losses, offsets, liabilities, damages, judgments, amounts paid in settlement, fines, penalties, costs and expenses, including reasonable legal fees and disbursements and collection fees, resulting from or arising in connection with (a) any transaction, contract, understanding, promise, representation, warranty or other relationship, actual, asserted or alleged, between you and any customer relating to any purchase/order made through the Services or the goods and/or services so purchased, (b) any breach or alleged breach by you, or any user of your Account, of any applicable obligations, representation or warranty contained in this Agreement, (c) your violation of any applicable laws or any rights of third parties, (d) any false or misleading representation made by you or your failure to provide and maintain true, accurate, current and complete information in relation to your Account, or (e) any fraudulent conduct or wilful misconduct by you or your officers, directors, employees or agents all of the foregoing, “Claims and Losses”).
This indemnity is a continuing obligation, independent of your other obligations under this Agreement, and will survive the termination of this Agreement or your use of the Services for any reason whatsoever. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this Agreement. However, we will not exercise the right of indemnity under this clause where it relates to a particular customer’s purchase through the Services until after we have raised the relevant issue with you for discussion, and you have had a reasonable amount of time to respond or to remedy the issue with that customer to our satisfaction.
You will cooperate as fully as required by us in the defense of any Claims and Losses. Notwithstanding the foregoing, Gratify reserves the right to settle, compromise and pay any and all Claims and Losses. Gratify also reserves the right to assume the exclusive defence and control of any Claims and Losses at our own cost. You agree not to settle any Claims and Losses without the prior written consent of Gratify or the consent of an individual whom we authorized, in writing, to approve such settlement.
Updates and Interruptions
Updates. From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Services for free or for a fee. You understand that your access to certain features of the Services might be affected by such updates. We may require you to download and install the updates or the updated version of the Services to continue to use the Services. You also agree that we may use background patching to automatically update our Services and software with or without notice to you. You also understand that such updates may affect the necessary equipment to continue to access or use the Services.
Interruption. You acknowledge that the Services or any part thereof may be interrupted for maintenance or reasons beyond our control, and we cannot guarantee that the Services will be uninterrupted. We will not be liable for any interruption of the Services, delay or failure to perform resulting from any causes whatsoever. Additionally, the Services may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Services at any time in our sole discretion, for any reason, or for no reason, with or without notice.
Governing Law and Jurisdiction. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws in force in British Columbia, Canada. Each party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in British Columbia, Canada in respect of any disputes or claims arising out of or in connection with this Agreement.
Entire Agreement. This agreement constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. You and Gratify acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.You acknowledge and agree that the arrangements between you and any of your customers for the sale and purchase of any goods and/or services are a separate consumer contract between you and the relevant customer and that the customer’s rights as a consumer in respect of that sale and purchase, including the return of goods, is solely between you and that customer, to the exclusion of Gratify to the maximum extent permitted by law.
No Waiver. A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that wavier unless made in writing.
Interpretation
In this Agreement, (a) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of this Agreement, (b) the word “including”, the word “includes” the phrase “such as”, and similar words and phrases, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (c) all references to Services will also include any successor or replacement applications, websites, content, or services containing substantially similar information as the referenced Service(s).
Severability
If any court of law, having jurisdiction to decide on this matter, rules that any provision of Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement, and the remaining provisions of the Agreement will continue to be valid and enforceable.ss
