Debittech POS Inc . (herein referred to as “DEBITTECH”) is in the business of distributing, selling, renting, and installing virtual and physical point of sale mechanisms, applications, software, and devices (collectively herein referred to as “POS”) and providing the repair, maintenance, connectivity, management, payment processing, and settlement transfer for the processing of digital cash and related products processed via POS, and the selling of advertising space on or about the POS (herein referred to as “Services”), and for these Services DEBITTECH will debit, collect, and charge Service Fees per transaction or otherwise, monthly, yearly, and/or arbitrarily (collectively herein referred to as “Fees”). The merchant, personal guarantor and the principals in the business identified in this Agreement (collectively, herein the “Merchant”) will purchase and provide site space for a POS provided by DEBITTECH , and provide the POS to facilitate the purchase of goods and services to Merchant’s consumers (herein referred to as “Customers”) and will exclusively use the Services, meaning that no other type of product or service same or similar to the Services will be on-site, either directly or indirectly. The Merchant certifies that the particulars, statements, documentations, and any other information relied on for this Agreement is truthful, accurate and complete and understands failure to comply may result in civil and or criminal proceedings. Merchant signature on this Agreement authorizes DEBITTECH to perform a credit check or any other type of checks required by the card brands deemed necessary of Merchant. In consideration of the agreements set-out on this Agreement and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as follows:
1. MERCHANT OBLIGATIONS AND REPRESENTATIONS: 1.01 By signing below the Merchant and its representative(s) represent and warrant to DEBITTECH that (i) all information provided in this Agreement is true and complete and properly reflects the business, financial condition and principal partners, owners or officers of Merchant; and (ii) the persons signing this Agreement are duly authorized to bind Merchant to all provisions of this Agreement. 1.02 Merchant agrees to allow DEBITTECH exclusivity to place mutually agreed upon signage and/or advertising on or around the POS, including any signage required by the card brands including the Interac Association, VISA, MasterCard or other credit card companies. 1.03 Merchant agrees to provide daily monitoring and servicing of the POS including, but not limited to: a) operation; b) cleanliness; c) service and repair notification; d) front-line service for simple maintenance matters, including but not limited to receipt paper jams. Merchant agrees to provide an independent power supply, and dedicated phone line. 1.04 Merchant is responsible for its own taxes of any nature or kind. Merchant shall separately pay to DEBITTECH all taxes (including HST) which DEBITTECH is required to charge and collect from the Merchant and remit to applicable tax authorities. Merchant expressly indemnifies DEBITTECH for any tax liability whatsoever pertaining to the Services and POS. 1.05 Merchant agrees to abide by the card brands rules and regulations including those of the Interac Association cardholder terms and conditions, VISA, MasterCard or other credit card companies. 1.06 Merchant agrees that DEBITTECH cannot guarantee the Services to the extent that approval is solely based on the Merchant own credit and business type. Where any Services
contemplated in this Agreement is declined due to (but not limited to) credit history, business type, fraud, misrepresentations, and or errors and omissions, Merchant agrees to honour all approved Services provided by DEBITTECH as stated herein. 1.07 Merchant agrees that fraudulent activity performed using the POS will result in as much funds as required to be withheld from the Merchant settlement funds. All fraudulent activity will be reported to the local Police department. 1.08 Merchant agrees to pay an administration fee of $50 per item for account changes, credit card changes and additions and all other general administrative adjustments. Such fees are subject to change without notice. 1.09 Merchant agrees that they are solely responsible to notify DEBITTECH of any changes (including, but not limited to structural, ownership, bank, name and address) in writing 40 days prior to any changes made. Merchant acknowledges that they are required to update all information pertaining to their account and acknowledge that all information is true, accurate and complete in all respects. Merchant acknowledges that DEBITTECH will not be held liable for any lost profits, delays and/or errors, resulting from Merchant failure to notify Debittech to update their information. 1.10 Merchant agrees to pay all Fees to DEBITTECH at the rates identified in this Agreement, and any other supplier agreements or schedules signed in relation to this Agreement or any subsequent rate changes as of the date of this agreement. 1.11 Merchant agrees to pay a Fee of .05c for each admin transaction, .05c for each incomplete or declined transactions, the minimum monthly processing fee will be $15. In the event that Merchant processing fee does not exceed $15for the month, the difference between the actual fee and the minimum processing fee will be charged. Merchant agrees to pay a servicing fee of $12.95 per month for merchant owned equipment and a technology fee of $3.95 per month. each month from the commencement of this agreement. 1.12 Merchant agrees to allow DEBITTECH to close batches otherwise known as admin fee, automatically for each POS and Services daily. 1.13 Merchant agrees to allow DEBITTECH to withdraw monthly via pre-authorized withdrawal the portion of the user Fees allotted to DEBITTECH from Merchant’s account on file, and the MERCHANT HEREBY AGREES THAT ALL SUCH DEBITS ARE PRE-AUTHORIZED FOR BUSINESS PURPOSES AS DEFINED BY THE CANADIAN PAYMENTS ASSOCIATION RULES (SECTION H1), AND AGREES TO WAIVE THE RIGHT TO RECEIVE ADVANCED NOTIFICATION FROM DEBITTECH FOR ALL PRE-AUTHORIZED BUSINESS DEBITS. 1.14 Merchant agrees to notify DEBITTECH of any settlement fund discrepancies within 7 days of the date of the disputed transaction. Merchant shall assume all responsibility for any disputed funds. 1.15 Merchant agrees to pay all Fees that are charged for Services provided by third party providers with whom Merchant has entered into an agreement within connection with this Agreement. 1.16 Merchant agrees to pay DEBITTECH for Services and POS provided by DEBITTECH or its designated service providers, in advance, calculated from the date any equipment is shipped. 1.17 Merchant acknowledges that any lease of the POS is third party to DEBITTECH and that the
obligations of such lease are solely between the Merchant and the leasing company. Merchant acknowledges that the term for any such lease (either written or verbally indicated in this Agreement or on any other application/form signed in connection with this agreement) does not represent or substitute the Initial Term or Renewal Term of this Agreement. 1.18 In the event of unauthorized use and abuse of POS and Services and or thirty (30) consecutive days of inactivity, Merchant agrees that DEBITTECH , at its sole discretion, may deactivate a SIM card for wireless service. Merchant agrees that a reactivation fee of $55 will be applied to Merchant account. 1.19 Merchant hereby acknowledges that any SIM card provided by DEBITTECH for use to access the wireless network is provided for business transaction connectivity only. 1.20 Merchant agrees to pay a $50 charge per NSF cheque or any failed attempt to withdraw payment via pre-authorized withdrawal. 1.21 Merchant agrees to pay a $500 fee in the event of 1 month of POS and Services inactivity. 1.22 Merchant agrees to pay interest in the amount of 19.8% per annum for any outstanding payments or moneys owed to DEBITTECH . Interest is calculated from the date the funds become due. 1.23 Merchant acknowledges that it’s solely responsible for any charge-backs, and agrees to pay for any fines, card brand levies and losses of any nature. 1.24 Merchant agrees that DEBITTECH liability is limited to $100 per claim brought against DEBITTECH by Merchant for any and all reason. Merchant agrees to release, remise and forever discharge DEBITTECH from any and all costs and claims brought by Merchant in relation to this Agreement including but not limited to lack of performance on DEBITTECH , lost profits, wages, materials, equipment and any and all consequential or direct damages suffered by the Merchant. 1.25 Merchant agrees that, as continuing security for the performance of all of the obligations of Merchant hereunder, Merchant hereby irrevocably grants to DEBITTECH a continuing, specific and fixed security interest in all of the Merchant property, assets, rights and undertakings of every nature and kind now or at any time and from time to time, wherever situate, including, without limiting the generality of the foregoing, all accounts receivable, inventory, equipment, intangibles, proceeds and leasehold interests. DEBITTECH shall be authorized to file one (1) or more security filings in any applicable jurisdiction in relation to the foregoing grant of security interest by Merchant to DEBITTECH hereunder. 1.26 Merchant shall be fully responsible and liable for failure to act on any actions brought about by Merchant Customers, Merchant agents, and any other person or entity for whom it is directly or indirectly responsible for under any applicable rules, regulations or laws, as if all such acts and failures to act were acts or failures to act on Merchant part. Without limiting the generality of the foregoing, Merchant shall be fully responsible for and liable for, Customers, all Services acquired by Merchant and any fraudulent or illegal activity in relation to such Services or otherwise arising from any POS from which Merchant acquires Services. If any Services acquired by Merchant is dishonoured for any reason whatsoever, then Merchant shall defend, indemnify and hold DEBITTECH harmless from and against any and all losses arising from such
Services, and DEBITTECH is hereby authorized to debit all such amounts from the Merchant bank account. 1.27 In the event of non-payment for any moneys due under this Agreement, DEBITTECH may debit any current credit card on file and or withdraw via pre-authorized payment the outstanding moneys from Merchant settlement funds without prior notice to the Merchant. Merchant agrees to pay any and all legal fees associated with a claim brought against the Merchant by Debittech for breach of this Agreement. DEBITTECH shall have the right of offset against any funds credited to or owing from DEBITTECH to Merchant for any obligation of Merchant to DEBITTECH , including, without limitation, obligations of Merchant under this Agreement and any other agreement with DEBITTECH and other 3rd party agreements introduced to Merchant by DEBITTECH . This right of offset may be exercised by DEBITTECH at any time and without notice to Merchant whether or not the obligations of Merchant to DEBITTECH are then due. Merchant further agrees such recourse shall not be limited to withholding funds or debiting the Merchant’s bank account but at DEBITTECH sole discretion, DEBITTECH may receive from any third party processor or other vendor of DEBITTECH any funds, including, but not limited to, reserve and settlement funds that such entity is holding on behalf of Merchant.
2. DEBITTECH OBLIGATIONS AND RIGHTS:
2.01 DEBITTECH agrees to provide sales connectivity for Merchant transactions and warranty and repair Services for the POS during the Initial Term and any Renewal Term of this Agreement for the agreed upon Fees, either one time or monthly. Said Fees may be debited by DEBITTECH from the Merchant directly via pre-authorized withdrawal from Merchant bank account, Merchant settlement funds/deposits or Merchant Fees.
2.02 Merchant may charge Customers a user convenience and/or wireless airtime fee per transaction for the use of the POS (“Convenience Fee”). The Convenience Fee shall be added to the withdrawal amount. DEBITTECH shall establish, collect and disburse the Convenience Fee which shall be set at the rate identified in this Agreement. DEBITTECH and Merchant may mutually agree upon any changes to the Convenience Fee.
2.03 DEBITTECH agrees to have transferred all validated Merchant settlement funds/deposits disbursed, abiding by all applicable legislation and regulations regarding the POS. DEBITTECH agrees to make every effort to settle all cash disbursed by the POS on or before the second business day following the day on which the transaction took place. Merchant agrees that DEBITTECH shall not be liable for any delays in settlement fund transfer.
2.04 Merchant agrees that DEBITTECH shall not be held liable for any disputed settlement funds arising from any incident by DEBITTECH , its associates, 3rd party partners, or the Merchant.
2.05 DEBITTECH may at its sole discretion change the terms of this Agreement and any Fees described in this Agreement resulting from but not limited to (a) changes in association fees (b) changes in association rules or any applicable laws (c) changes in pricing by any third party provider of POS or
Services used by Merchant. Merchant agrees that all future revisions of DEBITTECH Terms and Conditions shall supersede any and all representations, verbal, written or implied.
2.06 Merchant agrees that any disputes arising from this Agreement shall be governed by the most recent DEBITTECH Terms and Conditions revision. Merchant agrees that it is their sole responsibility to review the most current revision available on DEBITTECH’s online portal access or by calling Customer Service to obtain a copy.
3. ACCESS
3.01 Merchant agrees to allow DEBITTECH; its representative(s) or agent(s) access to the POS at Merchant site during normal business hours without notice.
4. TERM:
4.01 This Agreement is in effect for an initial period of forty-eight (48) months from the date the Agreement is signed (the “Initial Term”).
4.02 This Agreement shall automatically renew for further periods of six (6) months on each anniversary date of the commissioning of the POS (each “Renewal Term”), unless Merchant advises DEBITTECH of its intentions not to renew, in writing, at least 90 days prior to the end of the term of this Agreement. Merchant agrees to a Renewal Term upon any use of the POS or Services past the end of the Initial Term for which a non-renewal notice has been submitted.
4.03 In the event Merchant requests to make any changes to their existing POS, Services, Fees, including but not limited to bank account, address and business name changes, Merchant acknowledges that Agreement shall have a new Initial Term of forty eight (48) months, commencing from the date of such change.
5. CONFIDENTIALITY:
5.01 The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning POS, Services, Fees and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or
with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
6. TERMINATION:
6.01 DEBITTECH may at its sole discretion terminate the Agreement at any time and for any reason without having to produce notice to Merchant including but not limited to items related to fraud, inactivity, bankruptcy, unpaid Fees, POS and Services misuse, legal proceedings and so on.
6.02 In the event that Merchant closes their business, Merchant agrees to pay Debittech a one time fee of $500 and Debittech agrees to waive all other fees related to the Agreement. Merchant agrees that in order for Debittech to waive all other fees, Merchant will provide proof of closure of business in the form of an official letter from Merchant solicitor as well as an official letter from Merchant landlord indicating that Merchant has vacated the premises within 30 days of such closure, otherwise all termination penalties will apply.
6.03 Early Termination: In the event Merchant is in fundamental breach of the Agreement or terminates any of the Services prior to the end of the Initial Term or any Renewal Term thereof, Merchant shall pay to DEBITTECH in a single payment, as liquidated damages, an amount equal to the average gross monthly fees due by Merchant, or $55 per month, whichever is greater, whether to DEBITTECH or to any DEBITTECH 3rd party provider, for Debit, VISA, MC, AMEX, Gift Cards, Warranty Plans, Airtime Fees and any other Fees associated with the Services (including but not limited to any bonus or promotional monies paid to the Merchant at any time) pursuant or related to this Agreement for the highest three (3) month period from the commencement of this Agreement, multiplied by the number of months remaining to the end of the Initial Term or the Renewal Term, as the case may be. Merchant agrees to pay a fee of $500 per item if cancelling Services between the date this Agreement is signed and the installation and commissioning of POS.
6.04 In the event of early termination by Merchant, DEBITTECH may withhold from the settlement funds and/or withdraw via pre authorized withdrawal from Merchant account or Merchant credit card on file to pay for the liquidated damages as set out in this section.
6.05 The parties expressly agree that any damages owing to DEBITTECH as a result of early termination by Merchant, are difficult to ascertain and measure because of their indefiniteness or uncertainty of Fees generated by Services as a result of market conditions, and that the amount set forth is a
reasonable estimate of the damages that would be caused and shall be due regardless of proof of actual damages and not a penalty.
6.06 Liquidated damages paid to DEBITTECH for the termination of Services does not include the termination of any other 3rd party agreements that Merchant may have entered into for the purposes of this Agreement.
6.07 The Merchant agrees to pay a fee of $500 per item if cancelling POS and Services between the date this Agreement is signed and the installation and commissioning of the POS.
7. WARRANTY AND REPRESENTATIONS:
7.01 Merchant hereby warrants and represents to DEBITTECH , its employees, agents, officers, directors and owners the following, and acknowledges that DEBITTECH is specifically relying on the truth and accuracy of the representations and warranties contained herein and was induced to enter into this Agreement;
7.02 All information provided to DEBITTECH by Merchant in the Agreement or any application or related materials is true, accurate and complete in all respects.
7.03 Merchant at the time of entering into the Agreement with DEBITTECH does not have any present contractual obligations exclusive or otherwise with any other entity that would conflict with Merchant ability to enter into an exclusive Agreement with DEBITTECH .
7.04 Merchant hereby agrees to indemnify and save DEBITTECH , its owners, employees, agents, officers and directors, from any claim or action filed against any of them in a court of competent jurisdiction, in connection with the Agreement being entered into with the Merchant including, without limiting the generality of the foregoing, to pay the legal costs on a substantial indemnity basis and agrees to pay for any and all other costs and damages of any kind or nature, including but not limited to any lost profits, resulting from the breach of any of these warranties and representations.
8. DISCLAIMER AND LIMITATION OF LIABILITY:
8.01 EXCEPT AS OTHERWISE PROVIDED TO MERCHANT, THE POS AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. DEBITTECH DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEBITTECH OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF DEBITTECH ’S OBLIGATIONS. DEBITTECH SHALL NOT BE LIABLE TO THE MERCHANT OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE POS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA,
GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF DEBITTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL DEBITTECH ’S TOTAL LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY MERCHANT UNDER THIS AGREEMENT TO A MAXIMUM OF ONE HUNDRED DOLLARS ($100.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. Any equipment(s) purchase comes with only one year manufacture warranty. Warranty does not include vandalism, theft, batteries, or act of God. All equipment/ system modifications done by others are not included in the warranty. No Return, No Refund or No exchange policy on all Equipment / software purchases.
9. END USER LICENSE AGREEMENT (EULA):
9.01 The POS device software products included in the Agreement are sub-licensed pursuant to the End User License Agreement (EULA).
9.02 The sub-license hereby granted is subject to the terms and conditions of the EULA, which defines what you may and may not do with the software, as well as containing limitations of warranty and other legal obligations.
9.03 The sub-license hereby granted shall be upon the terms and conditions contained in the EULA. Use of the software is Merchant’s acknowledgement that Merchant agrees to the terms and conditions of the EULA. There will be a minimum of $29.95 per month software licensing fee for each station that will be deducted via pre-authorized withdrawal from Merchant account either yearly in a lump sum or monthly in twelve (12) equal payments.
9.04 The sub-license hereby granted shall terminate upon termination of the EULA. The EULA terminates upon termination of the Agreement.
10. INDEMNITY:
10.01 Merchant agrees to indemnify, defend, and hold harmless DEBITTECH , its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense including attorneys' fees, expert witness fees and cost of defence they may suffer or incur as a result of (i) any failure by Merchant or any employee, agent or affiliate of Merchant to comply with the terms of this Agreement; (ii) any warranty or representation made by Merchant being false or misleading; (iii) any representation or warranty made by Merchant or any employee or agent of Merchant to any third person other than as specifically authorized by this Agreement; (iv) the manner or method in which Merchant performs its services pursuant to this Agreement, (v) negligence of Merchant or its subcontractors, agents or employees, or (vi) any alleged or actual violations by the Merchant or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules or (vii) any losses, fines or fees charged to DEBITTECH by any third party related to Merchant.
Notwithstanding the foregoing, DEBITTECH may be represented in any such demand, claim, action, suit or proceeding at its own expense and by its own counsel.
11. RIGHT OF FIRST REFUSAL:
11.01 Merchant agrees that during the Initial Term and any Renewal Term of this Agreement it will provide DEBITTECH with a right of first refusal to provide Merchant (or any related entities) with processing services for any existing or additional equipment to be used for the similar purposes of electronic and or digital cash access and allow DEBITTECH the opportunity to match any similar agreement that may be offered to the Merchant at the expiration of this Agreement.
12. REGULATORY CHANGES AND COMPLIANCE:
12.01 The Agreement, Services and Fees set out herein are subject to change as required pursuant to applicable legislation and regulations governing the Interac Association and/or the card brands, and or applicable federal or provincial laws or regulations.
12.02 Merchant agrees to comply with all applicable laws in connection with its performance of this Agreement.
12.03 For purposes of all applicable privacy laws, Merchant expressly consents to the collection, use and dissemination by DEBITTECH of personal information relating to the Merchant, obtained directly or indirectly in connection with this Agreement, for the following purposes: (a) providing Services to the Merchant hereunder, (b) investigating the business and credit history and background of Merchant, (c) permitting third parties to provide Services to Merchant in connection with this Agreement, (d) investigating potentially fraudulent activities, (e) permitting financial institutions, credit and debit card issuers, credit agencies, governmental organizations, the police and other applicable authorities and regulatory bodies and other third parties to investigate potentially fraudulent or improper activities or for any regulatory reporting purposes, (f) providing other products or services to Merchant, (g) in connection with any sale or proposed sale of DEBITTECH ’s business or (h) where otherwise required by law.
13. GENERAL:
13.01 Notice: Every notice required to be given by either party shall be in writing and addressed to DEBITTECH POS at: FAX 416 609-5747 or mailed to Debittech at 850 Tapscott Rd unit 49, Toronto, M1X 1N4.
13.02 Merchant agrees that any illegality or invalidity of any paragraph, clause or provision contained in this Agreement shall not affect, or invalidate the remainder of this Agreement.
13.03 Assignment: DEBITTECH may assign this Agreement in whole or in part without the prior consent of the Merchant. Merchant may only assign this Agreement with the express written consent of DEBITTECH which consent may be arbitrarily withheld.
13.04 Inurement: This Agreement shall ensure to the benefit and be binding upon parties hereto, their respective heirs, executors, directors, administrators, personal representatives, successors and assigns. Merchant shall use its best efforts to cause any successor (purchaser or transferee) to acknowledge and agree to the terms of this Agreement
13.05 Governing Law: This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario without regard to the principles of conflicts of law or the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded, and the laws of Canada applicable therein and shall be treated as an Ontario contact. Merchant and DEBITTECH hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the Courts of Toronto, Ontario, Canada. Merchant understands and agrees that this Agreement was created and signed in Toronto, Ontario, regardless of where the actual negotiation, signing or delivery of product or services took place. Merchant understands and agrees that any action or cause of action is deemed to have taken place in Toronto, Ontario. If any action or proceeding is commenced by the Merchant in a jurisdiction other than Toronto, Ontario, as specified in section 13.05, then such action or proceeding and any judgment or award made in such action or proceeding shall be null and void and without jurisdiction. Furthermore, Merchant agrees to waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Merchant agrees that a final judgment in any such suit, action or proceeding brought in Toronto, Ontario, shall be conclusive and binding upon either party and may be enforced in any court to whose jurisdiction either party is or may be subject, by suit upon such judgment. Merchant and DEBITTECH hereby knowingly, voluntarily and intentionally waive any rights either of them may have to a trial by jury in respect to any litigation based on, arising out of or in connection with this agreement. Merchant agrees to extend, vary and modify all statutory limitation periods to the greater of (a) 5 years from the date of actual knowledge by DEBITTECH of any potential claim against Merchant hereunder or (b) the maximum period permitted by law.
13.06 Counterparts: This Agreement may be executed in counterparts, each of which shall constitute an original and all of which shall constitute but one document which shall be as valid and binding as if all parties attended at the same place at the same time and signed on document in the presence of each other. The parties agree that the reproduction of signatures by way of fax devices (or electronically or electronic transmission) be treated as though such reproductions were originals, and any party providing same, agrees to promptly provide to the other party an originally signed copy of this Agreement.
13.07 Returns: All products to be returned to DEBITTECH must first be approved by DEBITTECH head office, and be issued return authorization.
13.08 Jurisdiction: This contract is not valid until accepted and duly authorized by DEBITTECH head office in Toronto, Ontario.
13.09 English Language: The parties agree that they have required this Agreement and all related documents to be drawn up in the English language.
13.10 Trademarks and intellectual property rights: Merchant agrees that it shall have no ownership interest in nor any right to use, display or reproduce any registered or unregistered trademarks of DEBITTECH except as expressly granted in writing by DEBITTECH to Merchant hereunder. DEBITTECH expressly reserves ownership of all intellectual property rights arising in any manner whatsoever relating to its activities in connection with providing the POS and Services hereunder from time to time.
13.11 Time: Time shall be of the essence of this Agreement and each of its provisions.
13.12 Legal Advice: Merchant acknowledges that it had the opportunity to seek independent legal advice in connection with the execution and delivery of this Agreement.
13.13 Merchant acknowledges that this Agreement has been entered into by Merchant and DEBITTECH for business purposes and is not a consumer transaction for purposes of any consumer protection or similar legislation in any jurisdiction.
13.14 Guarantor: Any party that is listed as a guarantor for purposes of this Agreement shall be originally bound as an original party and obligor under this Agreement with the Merchant outlined in this Agreement.
13.15 Currency: Except where otherwise expressly stated, all references to dollar amounts or “$” in this Agreement mean lawful currency of Canada.
13.16 Survival: All provisions which expressly or by their nature are intended to survive the entering into and/or termination of this Agreement shall so expressly survive until fully performed or for such lesser period of time as may be expressly stated herein.
13.17 Force Majeure: DEBITTECH shall be entitled to suspend and delay the time required for its performance of its obligations hereunder where there exists any Act of God or any other unforeseen event or circumstance of fact beyond DEBITTECH ’s reasonable control.
13.18 Entire Agreement: This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire Agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties.
13.19 By signing below, Merchant represents and warrants that they have received and read this merchant application and Agreement, which includes (1) application, (2) personal guarantee, (3) Terms and Conditions of the Merchant Agreement, BY ACCEPTING PAYMENT INSTRUMENTS AND REMITTING TRANSACTION DATA, YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED AND READ AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN THESE AGREEMENTS.
14. CREDIT CARD AUTHORIZATION:
14.01 DEBITTECH is authorized by the cardholder assigned above to charge the credit card assigned on this form in the amount shown on this form and expressly authorizes DEBITTECH to withdraw funds from the credit card assigned in an unlimited amount of attempts and dollar value (not exceeding the amount agreed upon on in this Agreement) until payment for amount shown is received in full. The cardholder also authorizes DEBITTECH to withdraw balance of funds plus a $50.00 administration fee and monthly interest ( 19.8% per annum) on outstanding balances using the authorized
Copyright 2007. Debittech POS Inc
Powered By DEBITTECH POS Inc