Canada Commercial Entity Agreement
COMMERCIAL ENTITY AGREEMENT
Commercial Entity Agreement With Wells Fargo Bank N.A. Canadian Branch and First Data Canada Limited
All capitalized terms in this Commercial Entity Agreement With Wells Fargo (“Commercial Entity Agreement”) shall have the meaning assigned to it in this Commercial Entity Agreement. Any undefined capitalized term shall have the meaning assigned to it in the Agreement (hereinafter defined).
Visa and MasterCard Disclosures and Acknowledgement
Member Bank Name: Wells Fargo Bank, N.A. Canadian Branch
Bank mailing address: 1200 Montego Way, Walnut Creek, CA 94598
Bank Phone Number: 925-746-4143
Important Member Bank Responsibilities
(a) The Bank is the only entity approved to extend acceptance of Visa and MasterCard products directly to a Client.
(b) The Bank must be a principal (signer) to the Commercial Entity Agreement.
(c) The Bank is responsible for educating Clients on pertinent Visa and MasterCard Rules with which Clients must comply; but this information may be provided to you by YapStone.
(d) The Bank is responsible for and must provide settlement funds to the YapStone, for distribution to the Client or directly to the Client.
(e) The Bank is responsible for all funds held in reserve that are derived from settlement.
Important Client Responsibilities
(a) In the event Client obtains card Information, ensure compliance with cardholder information security and storage requirements.
(b) Review and understand the terms of the Agreement.
(c) Comply with Card Network Rules.
Retain a signed copy of this Disclosures Page.
Background, Roles and Responsibilities
1. Background. Client and Yapstone Canada ULC (“YapStone”) entered into a YapStone Client Services Agreement (“Agreement”) that allows YapStone to act as a payment facilitator for authorization, processing, and settlement services (“Services”). The Card Networks Rules require Wells Fargo Bank, N.A. Canadian Branch (Bank) to have a direct agreement with Client once the Client’s annual transaction volume exceeds a certain amount (“Threshold Amount”). To facilitate this requirement, YapStone, Processor (defined below) and Bank (Processor and Bank, collectively referred to as “Acquirers”) have included additional terms and conditions in this Commercial Entity Agreement that will become a part of the Agreement. Any language in this Commercial Entity Agreement inconsistent with the existing Agreement shall not apply with respect to disputes only between YapStone and Client.
2. YapStone. YapStone will facilitate the provision of the Services which includes: supporting chargebacks, reporting, status changes, and questions about the Services.
3. Processor. First Data Canada Limited (“Processor”), and/or Yapstone Holdings, Inc. (an affiliate of YapStone) through a separate agreement between Processor and Yapstone Holdings, Inc., will provide the Services to Client.
4. Bank. Bank is the member of Visa and MasterCard that sponsors YapStone, Processor, and Client’s acceptance of Visa and MasterCard transactions. As between Bank and Processor and YapStone, only Bank is approved to extend acceptance of Visa and MasterCard transactions directly to Client. Bank is responsible for providing YapStone (as allowed by the Card Network Rules) or Client with settlement funds for Visa and MasterCard transactions. As the member of the Card Networks, Bank is responsible (either directly or through Processor or YapStone) for advising Client of the Card Network Rules that Client must follow. The Services that you receive from any Card Network other than Visa and MasterCard are provided by YapStone and/or Processor and not by Bank.
5. Threshold Amount. Once Client’s annual volume reach or exceed the Threshold Amount, with respect to the Territory (as defined below), Bank and Processor will become parties to the Agreement, but only with respect to the Client acquiring services in the Territory provided by Acquirers in the Territory, and the additional terms and conditions in this Commercial Entity Agreement will become part of the Agreement.
6.1. In addition to YapStone’s reserve rights in the Agreement, the Acquirers may require the Client to fund a cash reserve (“Reserve”) in an amount that reflects the Acquirers’ assessment of risk, as they may determine in their discretion from time-to-time. The Reserve is a payment obligation of the Acquirers, established by holding back transaction proceeds or debiting the Payments in order to potentially offset any obligations that the Client may have to the Acquirers. The Reserve is not a segregated fund that the Client may claim to own. The Acquirers are obligated to pay to the Client any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Company’s payment transactions have expired (as provided for under the Network Rules).
6.2. The obligations due to the Client from the Reserve will not accrue interest unless required by applicable laws.
6.3. The Acquirers will notify the Client if a Reserve is established (including its amount) or if the amount of the Reserve is modified.
6.4. The Acquirers may set off any obligations that the Client owes to the Acquirers from the Reserve.
6.5. Although the Client acknowledges that the Reserve is a general obligation of the Acquirers, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of the Client that is held by the Acquirers, the Client grants and acknowledges that the Acquirers have a security interest in the Reserve and, at Acquirers request, will provide documentation to reflect this security interest.
7. Set-off. All funds that the Acquirers owe to the Client under this Agreement are subject to the Client’s payment obligations under this Agreement. The Acquirers may set off amounts the Client owes to any of the Acquirers against any funds that any of the Acquirers owe to the Client.
8. Limitation of Liability.
8.1. Disclaimer of Warranties. This Commercial Entity Agreement and any addenda is an agreement for services and except as expressly provided in this the Commercial Entity Agreement, Acquirers and their respective affiliates, disclaim all representations or warranties, express or implied, made to Client or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose, non-infringement or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the services provided under this Agreement.
8.2. Exclusion of Consequential Damages. In no event shall Acquirers or their respective affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by Agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.
8.3. Acquirer’s Limitation of Liability. Acquirers’ maximum liability to Client relating to or arising from the subject matter of this Agreement or any addenda for any claim of any kind in the aggregate shall be no more than $50,000 (the limitation of liability) regardless of form of action or legal theory. The limitation of liability shall control notwithstanding any other provision of this Commercial Entity Agreement or any addenda and shall also apply to the liability of any Acquirers or any affiliates of them.
9. Assignment. Acquirers may each, in whole or in part, assign or transfer the Agreement or this Commercial Entity Agreement or delegate or subcontract its respective rights, duties, or obligations under the Agreement or this Commercial Entity Agreement without Client’ s consent. Client further acknowledges that another financial institution may be substituted for Bank with respect to Bank’s obligation.
10. Third Party Beneficiary to the Agreement. In Canada (“Territory”) Processor and Bank are direct and intended third party beneficiaries to the Agreement, and may enforce their rights (i.e., confidentiality, indemnification, liability limitations, compliance, and data security, and third party fees) directly against Client without objection based on lack of privity or any similar claim.
11. Termination. In addition to the termination rights in the Agreement, Bank and/or Processor may terminate the Commercial Entity Agreement with reasonable advance notice for any other reason, without cause.
12. Reporting. If this Commercial Entity Agreement is terminated for cause, Client acknowledge that Bank or Processor may be required to report Client’s business name and the names and other identification of Client’s principals to the Card Networks. Client expressly agree and consent to such reporting in the event Client is terminated as a result of the Acquirers or YapStone’s termination for cause or for any reason specified by the Card Network(s) as cause. Furthermore, Client agrees to waive and hold Acquirer and YapStone harmless from and against, any and all claims which Client may have as a result of such reporting.
13. Intentionally Omitted.
14.1. This arbitration provision will be broadly interpreted. If Client has a dispute with Processor or Bank that cannot be resolved informally; Client or Bank or Processor may elect to arbitrate that dispute in accordance with the terms of this arbitration provision rather than litigate the dispute in court. In arbitration, there is no judge or jury, and there is less discovery and appellate review than in court.
14.2. Notwithstanding Section 14.1, the parties agree that the following will not be subject to arbitration: (a) disputes relating to the scope, validity, or enforceability of this arbitration provision; (b) any claim filed by either party in which the amount in controversy is properly within the jurisdiction of a small claims court; and (c) any dispute related to the validity of any party’s intellectual property rights.
14.3. If a party elect to resolve the dispute through arbitration pursuant to this arbitration provision, the party initiating the arbitration proceeding must open a case with the American Arbitration Association – Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org.
14.4. Because the Services provided to Client under this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) will govern this arbitration provision, including the issue of whether the dispute is subject to arbitration. A Claim that is not resolved directly between the parties within 90 days shall be resolved by arbitration as set out in this Section 14 of this Agreement and the National Arbitration Rules (the Rules) of ADR Institute of Canada, Inc. (the Administrator) or its successors or replacement Administrator. For a copy of the Rules, or for other information about the Administrator contact: ADR Institute, 234 Eglinton Avenue East, Suite 500, Toronto, Ontario M4P 1K5; e-mail firstname.lastname@example.org. If a party chooses arbitration to resolve a Claim, neither party may commence litigation in court in respect of such Claim). If there is a conflict between this arbitration provision and the Rules, this arbitration provision will govern. If the ADR will not administer a proceeding under this arbitration provision as written, it cannot serve as the arbitration organization to resolve your Dispute. If this situation arises, the parties will agree on a substitute arbitration organization. If the parties are unable to agree, the parties will mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written. If there is a conflict between this arbitration provision and the rest of this Agreement, this arbitration provision will govern.
14.5. A single arbitrator will resolve the dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect your information and other confidential or proprietary information. If the claim alleged in the dispute is for $10,000 or less, and the dispute is not excluded based on Section 14.2 above, Client may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
14.6. If an award granted by the arbitrator exceeds $50,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The arbitration organization will then notify the other party that the award has been appealed. The members of the three-arbitrator panel will be selected according to the Rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding.
14.7. ALL PARTIES TO ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT, OR CONSOLIDATED BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR OTHER PERSONS.
14.8. The arbitrator may award injunctive or similar relief only in favor of the individually named party and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award injunctive relief applicable to any class or similarly situated individual or groups.
14.9. The arbitration will take place in the Province of Ontario.
14.10. Acquirers will pay arbitration filing fees and arbitrator’s costs and expenses notified to Acquirers prior to the commencement of the arbitration. Client is responsible for all additional costs that it incurs in the arbitration, including fees for attorneys or expert witnesses. If the arbitration is resolved in Acquirer’s favor, Client will reimburse Acquirer for the filing fees and costs paid to Client only up to the extent awardable in a judicial proceeding. If the arbitration is resolved in Client’s favor Client will not be required to reimburse Acquirers for any of the fees and costs paid by Acquirers. Notwithstanding anything to the contrary in this arbitration provision, Acquirers will pay all fees and costs that Acquirers are required by law to pay.
14.11. IF CLIENT DOES NOT WISH TO ARBITRATE DISPUTES, CLIENT MUST NOTIFY ACQUIRERS IN WRITING WITHIN 30 DAYS OF THE DATE THAT CLIENT FIRST RECEIVE THIS AGREEMENT BY WRITING CLIENT’S NAME, ADDRESS AND ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT CLIENT DOES NOT WISH TO RESOLVE DISPUTES THROUGH ARBITRATION AND SENDING THAT NOTICE EITHER (a) BY E-MAIL TO ARBITRATIONOPTOUT@FIRSTDATA.COM; (b) BY FAX AT 402-916-2200; or (c) BY MAILING TO “ARBITRATION OPT OUT NOTICE, 3975 N.W. 120TH AVENUE, CORAL SPRINGS, FL 33065 (THESE FAX NUMBERS AND ADDRESSES ARE ONLY FOR SUBMITTING THE NOTICE DESCRIBED IN THIS SECTION). CLIENT’S DECISION TO OPT OUT OF ARBITRATION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH ACQUIRERS OR THE SERVICES PROVIDED BY THE ACQUIRERS.
14.12. If any part of Section 14.7 is found to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the dispute will be decided by a court. If any other clause in this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this arbitration provision will be given full force and effect.
14.13. Client, Acquirer and YapStone each have agreed to waive the right by Jury for claims related to the Commercial Entity Agreement.
15. Choice of Law. If the parties elect to forgo arbitration, or if any dispute is decided by a court as allowed in Section 14.12, the parties acknowledge and agree that all disputes and this Commercial Entity Agreement will be governed by the Province of Ontario law (exclusive of conflicts and choice of law rules calling for a different result.
16. Notices. For purposed of this Territory, notice to Processor will be sent to: First Data Canada Ltd., Attention: President, 2630 Skymark Ave., Suite 400, Mississauga, Ontario, L4W 5A4, with a copy to: First Data Merchant Services LLC, Attn: General Counsel’s Office, 6855 Pacific Street, AK-32, and Omaha, NE 68106. Emailed notices to First Data will be sent to: email@example.com; and notices to Bank as described on page 1 of this Exhibit A.
17. Any capitalized terms used in this Commercial Entity Agreement and not specifically defined in this Commercial Entity Agreement, are given the meaning ascribed to them in the Agreement.
18. English Language. The parties hereby confirm their express wish that any documents and notices related thereto be drawn up in English and declare themselves to be satisfied therewith, the whole, however, without prejudice to any documents which may from time to time be drawn up in French and English. Par les présentes, les parties confirment qu’elles souhaitent expressément que cette convention et tous les documents et avis connexe soient rédigés en anglais; elles s’en déclarent satisfaites sans préjudice, toutefois, à tout document ou avis qui pourrait, de temps à autre, être rédigé à la fois en français et en anglais.
19. Client’s Termination Without Cause. In the event Yapstone or Processor notifies Client of: (i) an increase in or any additional fees (subject to 90 days prior written notice); (ii) a material change to the terms the services none of which were previously negotiated and agreed to by the parties, Client understands that it may terminate the Agreement without further cause or penalty by providing Yapstone and/or Processor 30 days’ written notice prior to the effective date of such modification. Client agrees that continued use of the services, after the effective date of any modification constitutes acceptance throughout the initial or any renewal term of the Agreement. Client agrees that upon delivery of its notice of termination, it will fund its Reserve Account as set forth in section 6.
20. Pre-Notificaiton Requirement. You hereby waive the “Pre-notification/Confirmation” requirements set out in Appendix II of Rule H1 (Pre-authorized Debits) of the Canadian Payments Association. The statements made in your Agreement are true. You acknowledge having read your Agreement, and agree to be bound by all provisions printed herein.