Canada ULC Client Service Agreement
Last Updated January 29, 2019
Client Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
This Client Services Agreement (this “Agreement”) between Yapstone Canada ULC, an unlimited liability company with offices located at 595 Burrard Street, P.O. Box 49314, Suite 2600, Three Bentall Centre, Vancouver, BC V7X 1L3, Canada (“YapStone”), and the person or legal entity listed as the Client on the Client Services Application (the “Client”) is effective as of the effective date stated on the Client Services Application (the “Effective Date”). This Agreement incorporates Client’s rights and obligations relating to YapStone’s service providers, including, without limitation, Acquirer (as defined below), to the extent required by Client’s use of the Services (as defined below). By signing the Client Services Application, Client agrees to the terms of this Agreement and acknowledges that it has received a copy of the Agreement.
• YapStone provides online electronic payment services that facilitate the payment of long-term and short-term rents, deposits, HOA assessments/dues, Lodging Taxes, and other related expenses (collectively “Amount(s) Due”) between property owners/managers and renters/homeowners (collectively, the “Services”).
• YapStone utilizes various third parties to provide the Services, including Acquirer, who require Client and YapStone to agree to the relevant terms contained in this Agreement.
• Client owns, manages, or sublets one or more properties and/or homeowner associations listed on the applicable Forms (as defined below) (the “Properties”).
• Client desires to provide renters or homeowners of its Properties (“Payor(s)”) the opportunity to pay Amounts Due to Client using YapStone’s Services.
The parties agree as follows:
This Agreement incorporates by reference (in the order of precedence listed below):
1. Commercial Entity Agreement, American Express Terms, and schedules to this Agreement (as included or attached, and as applicable);
3. Sections 1 through 13 of this Agreement and the Pre-Authorized Debit Agreement (“PAD Agreement”); and
4. The Client Services Application, Client Property List, property add form, bank change form, and any other information or form submitted by Client to YapStone (collectively, “Forms”).
1.1 Relationship with YapStone. Client hereby appoints YapStone (and Acquirer) as Client’s limited agent for the limited purpose of receiving, collecting, facilitating, transmitting, and/or processing Payments (as defined in Section 1.3) on Client’s behalf from Payors making Payments to Client, and transmitting such funds to Client. Client acknowledges and agrees that:
A. Receipt of funds from Payors by YapStone (and by YapStone’s Acquirer) on Client’s behalf in connection with Services transactions shall be deemed receipt of funds from Payors by Client and will satisfy Payor’s obligations to Client in the amount of the applicable Payment by the Payor, even if YapStone fails to remit such funds received from Payors.
1. In addition to the foregoing, where Client is contractually authorized to receive or collect Payments on behalf of an owner or homeowners association, or where Client’s lease agreement or other agreement with a Payor provides that payments shall be made to Client as the agent of the owner or homeowners association, and Client uses the Services to receive, collect, facilitate, and/or transmit Payments of Amounts Due to Client or property owners or homeowners associations for which Client provides property management services (collectively, “Payee(s)”), Client represents and warrants to YapStone that Client has all requisite power, authorization, and authority (including, having been appointed as an attorney in fact by its Payee) to, among other things, and hereby does (i) appoint YapStone as the Payee’s agent for the limited purpose of receiving, collecting, facilitating, and/or transmitting Payments on behalf of each Payee from Payors making Payments to the Payee; and (ii) agree, on behalf of each Payee, that receipt of funds from Payors by YapStone (and/or by YapStone’s Acquirer) on Payee’s behalf in connection with Services transactions (a) shall be deemed receipt of funds from Payors by the Payee and (b) will satisfy a Payor’s obligations to the Payee in the amount of the applicable Payment by the Payor, even if YapStone or Client fails to remit such funds received from Payors. Where the provisions of this Section 1.1.A.1 apply, references below to Client acknowledgements, agreements, affirmations, authorizations or consents shall be deemed to be on behalf of Client and Payees.
B. “Applicable Law” means any applicable foreign, federal, state and local laws, statutes, guidance, regulations, rules, codes or ordinances enacted, adopted, issued or promulgated by any court or government body or common law or any consent decree or settlement agreement entered into with any government body, including, but not limited to any data protection laws including, Data Protection Laws, anti-bribery and corruption laws and anti-trust laws, or any written interpretation of a governmental authority or quasi-governmental agency, written guidance, written directives or instructions, that is applicable to such party or binding upon such party, as may be amended and in effect from time to time during the Term. YapStone or its designee will provide Payors with a receipt and any other information required by Applicable Law confirming that Payment has been made on the applicable date. Client acknowledges YapStone is not a bank or other chartered depository institution. Client also acknowledges that funds received by YapStone may be commingled with funds of others on whose behalf YapStone collects Payments and held by YapStone (or its service provider) on behalf of, and for the benefit of, Client or the Payee, as applicable, in one or more pooled accounts at one or more Canadian banks. As between Client and YapStone, YapStone has sole discretion over the establishment and maintenance of any pooled account. YapStone will not use funds held in such manner for YapStone’s corporate purposes. Client will not receive interest or any other earnings on any funds that YapStone holds for or on behalf of Client.
C. YapStone may order for Client a merchant identification number (“Merchant ID”) from a processor; and in some such cases, YapStone does not receive funds from Payors, but YapStone simply transfers data to support the transfer of funds from Payors directly to Client.
D. YapStone may submit Payment transactions to any Card Network or Acquirer, and receive funds from any Card Network or Acquirer on behalf of Client.
E. YapStone may grant or deny any Payor the ability to use the Services, for any or no reason.
F. In addition to any Payments from Payors with respect to rent, if required by Applicable Law, Client also authorizes YapStone to collect from each Payor and remit to the applicable local taxing authority on Client’s behalf, any and all applicable lodging, occupancy, hotel, transient, sales and use, or similar taxes (“Lodging Taxes”).
1.2 Client Responsibilities; Acquirer Relationship; Card Networks. During the Term of this Agreement, the Services will be provided by YapStone in conjunction with one or more merchant acquirers and their respective designated sponsoring member bank(s) (collectively, “Acquirer(s)”). Client agrees to comply with all YapStone policies with respect to the Services, and all applicable Visa Canada, Visa International, MasterCard International Incorporated, Discover Financial Services, Inc., American Express Travel Related Services Company Inc., and Interac (collectively, “Card Networks”), operating regulations and other rules (collectively, “Operating Regulations”), and all applicable federal, provincial, or local laws, rules, regulations, and regulatory guidance relating to the conduct of its business. As of June 1, 2017, the Operating Regulations for the Card Networks are available at: (i) Visa: https://usa.visa.com/support/small-business/regulations-fees.html#3; (ii) MasterCard: https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html; (iii) Discover available upon request at https://www.discover.com/credit-cards/help-center/contact-us/; and (iv) Interac: https://www.interac.ca/en/about-interac.html. Client agrees and acknowledges that the Card Networks reserve the right to amend the Operating Regulations, and the places where such rules are available, without notice to Client. If Client chooses to accept only certain types of Cards (as defined below), it is Client’s responsibility to properly indicate which Cards are accepted.
1.3 Payments of Amounts Due and Funding Timeline. During the Term (as defined below), YapStone’s Services will enable qualified Payors to make payments of Amounts Due to Client or the Payee using any combination of payment channels offered by YapStone, which may include: credit cards, debit cards (collectively, “Cards”), and pre-authorized debits to a Canadian bank account “PADs”, payments through any Websites or application interface (“API”) (collectively, the “YapStone Technology”), phone via YapStone’s call center operations (“Pay-by-Phone”), mobile application, or other channels as set forth in the fee schedules (collectively “Payments”). Subject to processing delays and risk holds, YapStone shall make commercially reasonable efforts to cause Payments to be made to Client’s or Payee’s bank account, as instructed by Client, via electronic funds transfer no later than two business days following the day a Payment is posted to YapStone’s accounts. Client acknowledges and agrees that YapStone may decline to process any Payment in connection with, among other reasons, fraud prevention activities, Applicable Law, or YapStone policies.
1.4 Settlement. Acquirer will process all Card transactions for YapStone and Client. Client agrees that settlement of funds to YapStone’s designated bank account discharges Acquirer of its settlement obligation to Client and that any dispute regarding the receipt or amount of settlement shall be between YapStone and Client. Client agrees that settlement of funds to Client’s designated bank account by the Acquirer discharges Acquirer of its settlement obligation to Client and that any dispute regarding the receipt or amount of settlement shall be between YapStone and Client.
1.5 Authorization for Debits and Credits. Client hereby authorizes YapStone to credit and debit the bank accounts listed on the PAD Agreement and other applicable Forms, including those bank accounts owned by Client or Payee, for the following purposes:
(i) to credit Payments to or as directed by Client;
(ii) to credit any other amounts due to Client;
(iii) to debit any Chargebacks (as defined below), refunds, or Reversals (as defined below) in accordance with the PAD Agreement; and,
(iv) to debit any fees, charges, or other amounts owed by Client to YapStone (under this Agreement or a separate agreement Client has with YapStone).
Client represents that it has the legal right, power, and authority to authorize YapStone to credit and debit such bank accounts. Client acknowledges that if it interferes with YapStone’s ability to debit any of such bank accounts, including without limitation by revoking the PAD Agreement, YapStone may suspend or terminate the Services without notice.
1.6 Client’s Use of the Services. Client agrees that the Services shall be used solely for the collection and payment of Amounts Due and for no other purpose. Client represents and warrants that it complies with all Applicable Law with respect to property management, vacation rental bookings or other products or services provided by Clients or Payees, and that it has the legal authority to own, manage, let, or sublet the Properties and to collect and authorize YapStone to collect Payments in connection with the Properties; and if Client is unable to show such authority upon YapStone’s request, YapStone may suspend or terminate the Services and may withhold or refund to Payor any corresponding Payments. Applicable Law shall mean any applicable foreign, federal, state and local laws, statutes, guidance, regulations, rules, codes or ordinances enacted, adopted, issued or promulgated by any court or government body or common law or any consent decree or settlement agreement entered into with any government body, including, but not limited to any data protection laws, antibribery and corruption laws and anti- trust laws, or any written interpretation of a governmental authority or quasi-governmental agency, written guidance, written directives or instructions, that is applicable to such party or binding upon such Party, as may be amended and in effect from time to time during the Term. Client further agrees that it will not use the Services for illegal transactions, for example those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq., as may be amended from time to time, or in connection with illegal activity of any kind.
Furthermore, knowing that YapStone intends to rely on the agreements, representations and warranties contained herein, Client (i) acknowledges and agrees that it is obligated to pay over to landlords or property owners that the Client serves certain funds disbursed to Client by YapStone; (ii) represents and warrants that it has all licenses and permits required to perform property management services and to collect funds from YapStone on behalf of landlords or property owners; (iii) represents and warrants that Client has been duly authorized as the agent of the landlord or property owner on whose behalf it is contracting for the collection of rent payments by YapStone; (iv) represents and warrants that it shall provide to YapStone, monthly, a report identifying each and every property for which YapStone is authorized to provide its services, and that Client shall provide YapStone with any reports or statements that Client furnishes to a landlord or owner in connection with such property upon request by YapStone.
YapStone and its Acquirers shall have a right to audit and make independent examinations of Client’s records, books and accounts and all vouchers, files and all other material pertaining to each property in connection with which YapStone is providing Services, no more frequently than two (2) times a year, upon reasonable notice, to ensure compliance with the terms of this Agreement by Client.
1.7 Modification of the Services. When YapStone determines that it is necessary to protect the integrity of the YapStone Technology or its operations, to avoid harm to others, or for any other reason, YapStone has the right, without notice or liability, (i) to change, suspend or discontinue the Services or YapStone Technology, and (ii) to impose limits on features or restrict access to any of the Services and YapStone Technology.
In addition, but subject to the notification requirements set out in Section 2.1 regarding modifications to the Fee Schedule, YapStone may from time to time without prior notice modify any of the Services or YapStone Technology. However, if YapStone, in its sole discretion, determines that any such modification would significantly adversely affect Client’s use of the Services or YapStone Technology, YapStone will provide Client notice, by email or by a posting on the “Legal Center” of any Site.
1.8 Provision of Information. Client will keep current all information identified on the Forms, including, without limitation, all bank account information. Client also will provide any other information as may be reasonably requested by YapStone, from time to time, or otherwise as may be required to perform the Services. Client acknowledges that failure to update such information may result in Payments being misdirected or delayed, or returned to the Payor. YapStone shall in no event be liable for any damages directly or indirectly resulting from Client’s failure to provide current and correct information.
1.9 Relationship Between YapStone, Payors, and Payee. Client acknowledges and agrees that YapStone is not a party to Client’s agreement with any Payor or Payee with respect to property management, vacation rental bookings or other products or services provided by Clients or Payees. Therefore, in the event of a dispute between Client, a Payor, or any Payee for any reason other than YapStone’s performance of the Services, Client agrees to indemnify, defend and hold harmless YapStone, its affiliates, and its officers, directors, agents, employees, and other representatives from any claims related to the dispute.
2. FEES AND COLLECTION OF FEES.
2.1 Fees. Client shall pay YapStone fees as set forth in the fee schedule included with the Client Services Application (“Fee Schedule”). Client acknowledges that YapStone may also charge Payors certain fees in order to use its services and YapStone is responsible for disclosing any such fees to Payor. YapStone reserves the right to modify any fee schedule upon ninety (90) days’ notice to Client. Client is responsible for disclosing to Payor, all fees that Client charges to such Payor. If a dispute arises related to non-disclosure of Client-charged fees, Client shall be liable to YapStone for the full transaction amount including fees or charges for facilitating the payment of the Amount Due. In addition to the fees listed on the Fee Schedule, Client is also responsible for any penalties or fines imposed on it or YapStone by any Acquirer or Card Networks resulting from Client’s use of the Services in a manner not permitted by this Agreement, Operating Regulations, or Acquirer rules and regulations.
2.2 Right of Setoff. To the extent permitted by law, Client authorizes YapStone to withhold, without notice, from any payment due to Client or Payee, any and all sums that Client owes to YapStone, including without limitation: (i) Fees owed by Client, and (ii) amounts Client owes YapStone in connection with any Reversal, refund, Chargeback or other adjustment to prior Payments.
2.3 Collection Actions. Notwithstanding anything else herein, if Client fails to pay YapStone any amounts owed to YapStone under this Agreement, YapStone reserves the right, on its own or through a third party collection agency, to initiate a collection action against Client to recover such funds. YapStone, from time to time, may charge interest on unpaid sums that are at least thirty (30) days past due at the annualized rate of ten percent (10%), or the maximum rate permitted by Applicable Law. Interest will be calculated on a daily basis from the due date until the sum due has been paid in full. In such event, Client agrees to pay all costs and expenses, including without limitation, reasonable lawyers’ fees and other expenses, incurred by or on behalf of YapStone in connection with the collection action.
3. UNDERWRITING; CHARGEBACKS AND REVERSALS
3.1 Underwriting; Customer Due Diligence; Fraud and Risk Reviews. In order to enable YapStone to comply with anti-terrorism, financial services, and other Applicable Laws and regulations, Know Your Customer (“KYC”), and requirements imposed by the Card Networks and Acquirers, Client must provide YapStone information about itself, its shareholders, its activities, and the Properties, as set out in the Forms. Client warrants unconditionally that all information it provides YapStone is true, correct and up to date, that it has obtained all necessary consents from shareholders, officers or directors or other individuals as applicable to provide their information to YapStone for the purposes described herein, and acknowledges that YapStone is relying upon such information in establishing this Agreement and in providing the Services. Client authorizes YapStone to verify the information provided by Client (including information provided on the Forms). YapStone will use this information to perform customer due diligence, identity verification, and various underwriting, fraud and risk reviews. Client acknowledges that YapStone will continuously monitor Client transactions through the Services for the purpose of identifying suspicious activity, to prevent, detect and deter fraud and money laundering, and to protect the integrity of its systems and business. Client further acknowledges that as a result of such monitoring YapStone may require additional due diligence (including information on the Properties, Client financial statements, and additional information on Payors and Payees) with respect to Client to ensure Client continues to be eligible for the Services. YapStone may suspend or terminate the Services immediately and may withhold or refund any corresponding Payments to Payor upon the occurrence of any of the following: (i) if Client becomes ineligible for the Services based on YapStone policies, (ii) YapStone reasonably suspects Client has violated Applicable Law, or (iii) if Client does not furnish the requested information in a timely manner.
Client further authorizes YapStone (or its affiliate or agent) to from time to time request a consumer report on Client from a consumer reporting agency. Such consumer report(s) will be used to review Client’s account to determine whether Client continues to meet the terms and conditions related to the Services. YapStone reserves the right to terminate, suspend, or limit access to the Services based upon YapStone’s review of such consumer report(s), and/or in the event YapStone is unable to obtain or verify any of Client’s information. In the event that Client’s access to the Services are so terminated, suspended, or limited based upon information contained in a consumer report, YapStone will notify Client in accordance with Applicable Law.
3.2 Adequate Security; Reserve. As a condition of continuing to provide Services to Client, Client agrees that YapStone may, at any time, require a guaranty or other form of adequate security, such as a deed of trust or UCC-1 filing, including requiring Client to maintain with YapStone a separate reserve account (a “Reserve”) or requiring Client to obtain specific types of insurance on the Properties. YapStone may set the Reserve in an amount that it reasonably determines is necessary to cover its or any Acquirer’s risk in connection with providing the Services to Client (including without limitation anticipated Chargebacks or credit risk). The Reserve may be raised, lowered, or removed from time to time in YapStone’s sole discretion. Client agrees that YapStone may fund the Reserve from amounts due to Client under this Agreement and grants YapStone the right to make any withdrawals or debits from the Reserve, without prior notice to Client, to collect amounts owed to YapStone under this Agreement. Client grants YapStone a security interest in and lien on all funds held in any Reserve. Client will execute any additional documentation required for YapStone to perfect such security interest. This security interest survives for as long as YapStone holds funds in the Reserve. Client acknowledges and agrees that all interest or other earnings that accrue or are attributable to the Reserve will belong to YapStone.
3.3 Chargebacks and Reversals. Any Payment by a Payor is subject to a right of (i) “Reversal” (the right of a bank account owner to seek the return funds for a transaction that was funded by a bank account for example, as a result of suspected unauthorized use of a bank account or insufficient funds), or (ii) “Chargeback” (the right of credit cardholders to file a claim for a refund with their Card issuer, for example, as a result of fraud or dissatisfaction with a purchase). These rights exist between the Payors/accountholders and their bank or Card issuer. Client acknowledges and agrees that it is responsible for any Chargeback or Reversal of a Payment, plus the applicable Chargeback and Reversal Fee in the Fee Schedule, regardless of the reason for the Chargeback or Reversal. In the event of a Chargeback or Reversal of any Payment by an accountholder, YapStone is authorized pursuant to the PAD Agreement to recapture such amount plus any fees associated with the Chargeback or Reversal from Client’s bank account or to withhold such amount from any Payment due to Client. YapStone shall have no obligation to pursue any collection action against any Payor or accountholder and, therefore, YapStone’s obligation to remit funds collected by YapStone on Client’s behalf shall be limited to funds that YapStone has actually received that are not subject to Chargeback or Reversal.
With respect to Chargebacks, YapStone may, in its sole discretion, assist Client to investigate and dispute the validity of the Chargeback on Client’s behalf and at Client’s expense. Client agrees to cooperate with YapStone and to provide any information that may be reasonably requested by YapStone in its investigation. Client authorizes YapStone to share information about a Chargeback with the Payor and accountholder, the accountholder’s financial institution, and Client’s financial institution in order to investigate or mediate a Chargeback. If the Chargeback is resolved in Client’s favor and YapStone is in possession of the applicable funds, YapStone will place them into Client’s designated bank account. If a Chargeback dispute is not resolved in Client’s favor or Client chooses not to contest the Chargeback, Client waives its rights to repayment. Client acknowledges that Client’s failure to assist YapStone in a timely manner when investigating a transaction may result in Client losing the Chargeback dispute. Client acknowledges that Chargeback or Reversal decisions are made by the applicable issuing bank or Card Networks, and all judgments as to the validity of the Chargeback or Reversal are made at the sole discretion of the applicable issuing bank, Card Networks. Client further acknowledges that American Express Chargebacks that are deemed to be fraudulent or unauthorized (as defined by American Express) may not be disputed.
3.4 Excessive Chargebacks/Reversals. If YapStone determines in its sole discretion that Client has incurred an excessive number or amount of Chargebacks or Reversals, YapStone may increase the processing fees paid by Client in accordance with Section 2.1, or may, without notice: (i) require Client to establish a Reserve, (ii) delay Payments to Client, and/or (iii) suspend providing the Services to Client.
3.5 Financials. Within thirty (30) days of quarter-end, Client agrees to provide YapStone with unaudited financials and to provide audited financials to YapStone no less than annually. YapStone reserves the right to terminate, suspend, or limit access to the Services based upon YapStone’s review of such financials, and/or in the event YapStone is unable to obtain or verify any of Client’s material information. In the event that Client’s access to the Services are so terminated, suspended, or limited based upon information contained in the financials, YapStone will notify Client in accordance with Applicable Law.
4. DATA SECURITY AND PRIVACY; E-SIGN
4.1 Data Security. Client agrees that Payor data will only be accessed by authorized Client employees and contractors, whose access shall be limited to those with a need-to-know based on their job responsibilities. Client further agrees that YapStone will not be responsible for any unauthorized use or access to Payor’s personal data or financial data by Client, Client’s employees, any other party associated with Client (such as contractors, vendors, suppliers, invitees, agents), or any person who uses or accesses such data through Client or Client’s systems, except to the extent such use or access is due to YapStone’s fault or negligence. Client agrees to meet all applicable data security standards (including not storing Payor’s Card data or Payment Data (as defined below)), as required by law or regulatory authority, the Operating Regulations, any Acquirer, or the Payment Card Industry Data Security Standards (PCI DSS), including setting access restrictions and strict password requirements. Client must annually certify its PCI DSS compliance. Upon YapStone’s request, Client will also provide YapStone with all documentation reasonably required to validate such compliance. YapStone and Client respectively agree that it will use only PCI DSS compliant service providers in connection with the storage, or transmission of “Payment Data” defined as a cardholder’s account number, expiration date, and CVV2. Client agrees not to store CVV2 data at any time. Information on the PCI DSS can be found on the PCI Council’s website (www.pcisecuritystandards.org) and Client agrees to comply with these standards.
4.3 E-Sign Consent. YapStone and its affiliates and third party service providers may need to provide You with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding the Services. Your agreement to this E-sign Consent confirms Your ability and consent to receive Communications electronically from YapStone, its affiliates, and its third party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with You (“Consent”). If You choose not to agree to this Consent or You withdraw Your Consent, You may be restricted from using the Services.
5. INTELLECTUAL PROPERTY
5.1 Intellectual Property Rights. As between YapStone and Client, YapStone is and at all times will be deemed to be the exclusive owner of the Services, the YapStone Technology, and any other material that YapStone may use or provide in connection with implementation and operation of the Services or the YapStone Technology, as well as any and all current and future patent rights, copyrights, trademark trade name and logo rights, mask work rights, trade secret rights, database rights, moral rights, and all other intellectual and proprietary rights of any kind or nature anywhere in the world (whether or not registered or perfected) with respect to the forgoing. For clarity, Client does not acquire any right, title, or interest in or to: (i) any inventions, methods, processes, technology or works of authorship that YapStone has developed, conceived, reduced to practice or otherwise acquired; (ii) all modifications, enhancements or derivative works thereof; or (iii) any intellectual property rights with respect to any of the foregoing.
5.2 Client will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the YapStone Technology, the Services, or any other of YapStone’s intellectual property.
5.3 Client will not use YapStone’s name or trademarks in any press release, or promotional materials without YapStone’s prior written consent in each case. Client grants YapStone a limited, non-exclusive, royalty-free, paid-up license to use Client’s name and trademarks for the sole purpose of offering or marketing (including advertising, promotions, and sales literature) the Services to Client’s renters or potential renters.
6.1. Client Indemnification. Client shall indemnify, defend, and hold harmless YapStone, the Acquirer, and their respective parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“YapStone Indemnified Parties”) from and against any and all Claims (as defined below) arising out of or in connection with (i) Client’s or any Payor’s use of the Properties, Services, or YapStone Technology; (ii) any breach (or, as to defense obligations only, any alleged breach) of this Agreement by Client; (iii) Client’s gross negligence, fraud, misrepresentation, willful misconduct, violation of Applicable Law, or infringement of the rights of any person or entity; (iv) a data breach, not caused by YapStone; or (v) Client’s violation of PCI DSS or the Payment Application Data Security Standards (PA-DSS), as applicable. The foregoing indemnity obligations are limited in each instance to the extent that any Claim is the result of the gross negligence or willful misconduct of any YapStone Indemnified Party. The foregoing indemnity obligations also are contingent upon YapStone providing prompt written notice to Client of any such Claims, provided that Client’s indemnity obligation shall be relieved only to the extent Client is prejudiced by any delay or failure of YapStone to provide such notice.
6.2. YapStone Indemnification. YapStone shall indemnify, defend, and hold harmless Client and its respective parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“Client Indemnified Parties”) from and against any and all Claims (as defined below) arising out of or in connection with (i) any breach (or, as to defense obligations only, any alleged breach) of this Agreement by YapStone; (ii) YapStone’s gross negligence, fraud, misrepresentation, willful misconduct, violation of Applicable Law, or infringement of the rights of any person or entity; or (iii) a breach of data security occurring at, in, or through YapStone’s YapStone Technology, Services, or premises that (through no fault of any Client Indemnified Parties or any Payor) results in the unauthorized disclosure of Client’s personal information or Payor’s cardholder information. The foregoing indemnity obligations are limited in each instance to the extent that any Claim is the result of the gross negligence or willful misconduct of any Client Indemnified Party. The foregoing indemnity obligations also are contingent upon Client providing prompt written notice to YapStone of any such Claims, provided that YapStone’s indemnity obligation shall be relieved only to the extent YapStone is prejudiced by any delay or failure of Client to provide such notice.
6.3. Indemnification Process. The party seeking indemnification pursuant to this Section 6 (the “Indemnitee”) shall: (a) promptly notify the other party (the “Indemnitor”) in writing of the Claim for which indemnification is sought, but in no event longer than five (5) business days after the Indemnitee’s knowledge of the Claim; (b) make all reasonable efforts to provide Indemnitor with all information and material in Indemnitee’s possession regarding the Claim; (c) furnish to Indemnitor such assistance as Indemnitor may reasonably request in connection with the investigation, settlement and defense of the Claim; and (d) grant Indemnitor sole control over the defense and settlement of the Claim; provided, however, that Indemnitee may participate in such defense at its option and expense. Within ten (10) days of Indemnitor’s receipt of the notice of the Claim or demand, Indemnitor shall notify the Indemnitee as to whether Indemnitor is assuming the entire control (subject to this Section) of the defense, compromise or settlement of the matter, including the counsel that Indemnitor has selected. Any counsel retained by the Indemnitor for such purposes shall be reasonably acceptable to the Indemnitee, whose consent shall not be unreasonably withheld. The Indemnitor shall institute and maintain any such defense diligently and reasonably and shall keep the Indemnitee fully advised as to the status thereof. Further, Indemnitor shall not dispose of or settle any such Claim in Indemnitee’s name or in any manner which may adversely affect Indemnitee’s rights or interests (which includes, without limitation, any settlement that imposes pecuniary or other liability or an admission of fault or guilt on the Indemnitee or would require the Indemnitee to be bound by an injunction of any kind) without Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed. Indemnitee shall not be liable hereunder for any settlement entered into without its prior written consent (which consent shall not be unreasonably withheld or delayed).
6.4. Definition of “Claim”. “Claim” means an action, allegation, assessment, cause of action, cease and desist letter, charge, citation, claim, demand, directive, fine, lawsuit or other litigation or proceeding, or notice issued or submitted by, from or on behalf of a third party, including any governmental agency, and all resulting judgments, bona fide settlements, penalties, damages (including consequential, indirect, special, incidental or punitive damages), losses, liabilities, costs, and expenses (including, without limitation, reasonable lawyers’ fees, expenses and costs) incurred in connection therewith.
7. LIMITATION OF LIABILITY
7.1 YAPSTONE SHALL NOT BE LIABLE FOR: ANY FAILURES CAUSED BY ANY PERSON OR ENTITY OTHER THAN YAPSTONE THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF A PAYMENT OR THE SERVICES.
7.2 EXCEPT WHERE THE CLAIM: (i) IS SUBJECT TO INDEMNIFICATION UNDER SECTION 6 OF THIS AGREEMENT; (ii) ARISES OUT OF A BREACH OF CONFIDENTIALITY; OR (iii) ARISES OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT WILL EITHER PARTY OR ACQUIRER OR ANY CARD NETWORKS, OR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL YAPSTONE’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES THAT YAPSTONE HAS EARNED UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES, PLUS, WHERE YAPSTONE HAS FAILED TO MAKE ANY PAYMENT (as defined in Section 1.3) DUE TO CLIENT, THE AMOUNT OF SUCH PAYMENT DUE. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.
8.1 EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT: (i) THE SERVICES, YAPSTONE TECHNOLOGY, AND ALL CONTENT, SOFTWARE, MATERIALS AND OTHER INFORMATION PROVIDED BY YAPSTONE OR OTHERWISE ACCESSIBLE TO CLIENT IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, ARE PROVIDED “AS IS” AND (ii) ACQUIRER, YAPSTONE, AND THEIR RESPECTIVE AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND (AND DISCLAIM ALL WARRANTIES OF ANY KIND) WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, YAPSTONE MAKES NO WARRANTY THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. YAPSTONE MAKES NO WARRANTY REGARDING THE QUALITY OF THE PAYMENT SERVICES.
8.2 CLIENT ACKNOWLEDGES AND AGREES THAT ACQUIRER IS NOT A PARTY TO THIS AGREEMENT AND THAT CLIENT SHALL HAVE NO RECOURSE AGAINST ACQUIRER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
9. TERM AND TERMINATION.
9.1 Term. This Agreement will commence on the Effective Date and will continue for two (2) years (“Initial Term”). Thereafter, it will automatically renew for successive six-month terms (collectively, “Term”), unless either party gives written notice of nonrenewal not less than ninety (90) days’ prior to the end of the then existing term.
9.2 Termination. Either party may terminate this Agreement, with Cause, upon thirty (30) days’ written notice to the other party. For purposes of this Agreement, “Cause” shall mean: (i) a party’s material failure to comply with any material provision of this Agreement or any other negligent or willful act or omission relating to this Agreement that the party fails to cure within thirty (30) days of the notice thereof; (ii) YapStone’s modification of the Services or YapStone Technology that significantly adversely affects Client’s use of the Services or YapStone Technology; (iii) Client’s revocation of the PAD Agreement without providing a replacement that is acceptable to YapStone in its sole discretion; (iv) Client’s non-payment of past due amounts due to YapStone; (v) Client not sending a transaction to YapStone for six (6) consecutive months; or (vi) if required to by Applicable Law, the Card Networks, or Acquirer. This section does not limit YapStone’s termination rights outlined elsewhere in the Agreement.
9.3 Termination by Client. Client may terminate this Agreement, without penalty, within ninety (90) days after receipt of notice from YapStone of a new or increased fee pursuant to Section 2.1.
9.4 Effect of Termination. Termination of this Agreement will not relieve either party of any obligation to pay the other party any Fees or other compensation due to the other party prior to such termination. YapStone will complete any Payments in process at the time of termination and will deduct any Fees owed to it at that time. However, Client will remain liable for Chargebacks, Reversals, charges, and any other obligations incurred by Client after the expiration or termination of this Agreement and Client authorizes YapStone to automatically, without prior notice to Client, deduct such amounts from Client’s bank account pursuant to the PAD Agreement.
If Client terminates this Agreement for any reason within the Initial Term, other than in accordance with Section 9.3, YapStone shall charge Client the Early Termination Fee on the Fee Schedule. Client acknowledges that the Early Termination Fee represents a fairly calculated liquidated damage and is not a penalty. Upon termination, YapStone will disable Client’s access to the Services. Upon termination, Client will remove all references to YapStone from its website and/or software.
10. ARBITRATION: Please read this Section carefully. It affects Client’s rights and will impact how claims Client and YapStone may have against each other are resolved.
10.1 Dispute Resolution Procedure. Most Client concerns can be resolved through YapStone’s customer service department. YapStone’s goal is to learn about and address the underlying causes of the concern and avoid it becoming a dispute. To that end, the parties shall cooperate and attempt in good faith to resolve any potential dispute promptly by discussions between persons who have authority to resolve the potential dispute. If the parties are unable to resolve a potential dispute amicably within seven (7) days of YapStone’s customer service department receiving notice of, or getting involved in, the potential dispute, the potential dispute shall be escalated to YapStone’s legal team for resolution. In this regard, the Client may contact YapStone’s legal team at Legal@YapStone.com. Any Client disputes related to billing or fees must be raised within ninety (90) days of the relevant transaction or they are deemed permanently waived by Client.
10.2 Agreement to Arbitrate. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE ARISING BETWEEN CLIENT AND YAPSTONE THAT CANNOT BE RESOLVED INFORMALLY AS DESCRIBED IN SECTION 10.1 (INCLUDING WITHOUT LIMITATION ANY CONTROVERSY OR CLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ALLEGED BREACH THEREOF) AND REMAINS UNRESOLVED WITHIN TWENTY-ONE (21) DAYS OF ESCALATION TO YAPSTONE’S LEGAL TEAM, SHALL BE FINALLY RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION CANADA (THE “ICDR CANADA”) IN ACCORDANCE WITH ITS CANADIAN ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE, BEFORE A SINGLE ARBITRATOR, IN THE CITY OF VANCOUVER, BRITISH COLUMBIA. THE ARBITRATOR SHALL DECIDE THE DISPUTE IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF BRITISH COLUMBIA. COSTS OF ICDR CANADA WILL BE SHARED EQUALLY BY THE PARTIES, EXCEPT THAT THE ARBITRATOR SHALL AWARD THE PREVAILING PARTY COSTS AND LAWYERS’ FEES IN ANY ARBITRATION WHERE THE PREVAILING PARTY PREVAILS IN CONNECTION WITH CLAIMS THAT A PARTY FAILED TO TIMELY REMIT FEES OR AMOUNTS DUE TO THE OTHER PARTY.
10.3 Opt-Out Procedure. Client can choose to reject this agreement to Arbitrate (“opt out”) by sending YapStone a written opt-out notice by certified mail to the mailing address set forth in Section 12.9 of this Agreement. For new YapStone customers, the opt-out notice must be postmarked no later than thirty (30) days after the Effective Date. The opt-out notice must state that Client does not agree to Arbitrate and must include Client name, address, phone number, and the email addresses provided at registration or on file with YapStone. Client must sign the opt-out notice for it to be effective. This procedure is the only way Client can opt out of the agreement to Arbitrate. Opting out of the agreement to arbitrate shall have no impact or effect upon any other provisions of this Agreement. If the Client exercises the opt out, then any legal action or proceeding relating to the Agreement shall be brought exclusively in the courts located in the province of British Columbia.
10.4 CLASS ACTION WAIVER AND JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM OR DISPUTE PROCEEDS IN COURT RATHER THAN ARBITRATION, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM RELATING OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BETWEEN THE PARTIES. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
Each party agrees to keep confidential and to use only for purposes of performing under this Agreement, any proprietary or confidential information disclosed by or on behalf of the other party in relation to this Agreement, as well as any other information that could reasonably be considered to be confidential. The obligation of confidentiality does not extend to information that is publicly available through authorized disclosure, is rightfully obtained from a third party that has the right to disclose it, or is required by law to be disclosed. All confidential information will remain the property of the disclosing party.
12.1 Binding Upon Successors and Permitted Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Client may not assign this Agreement or any rights, obligations, or privileges under this Agreement without YapStone’s prior written consent. YapStone may assign its rights and obligations under this Agreement at any time without notice to Client.
12.2 Force Majeure. YapStone will not be responsible for delays, errors, failures to perform, interruptions or disruptions in the Services or YapStone Technology resulting from any act, omission or condition beyond YapStone’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of Client, Payor’s or any third party’s hardware, software or communications equipment or facilities.
12.3 Entire Agreement; Counterparts; Signature Dates. This Agreement replaces and supersedes all previous and contemporaneous agreements between the parties, and Client hereby waives all claims, refunds, credits, or damages related to or arising under any previous agreements between the parties. This Agreement may be signed in counterparts, including counterparts transmitted by electronic mail, each of which will be deemed an original and all of which will constitute one and the same instrument. In the event that Client returns an executed but undated copy of this Agreement to YapStone, Client agrees and authorizes YapStone to insert the date of YapStone’s receipt or counter-signature of the executed copy.
12.4 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by any court of competent jurisdiction or arbitrator pursuant to Section 10, the remaining provisions shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though such invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. Notwithstanding the foregoing, this Agreement shall be interpreted to give effect to its fundamental terms and conditions. Any such invalid or unenforceable provision shall be reformed by the court or arbitrator as necessary to express as nearly as possible the original intent of the parties and achieve the same economic effect as the original provision.
12.5 Amendment and Changes Other Than to Fee Schedule. This Agreement may be changed or amended by YapStone or Acquirer at any time without notice, provided that, any changes that would significantly adversely affect Client will be communicated to Client by email, posting on the legal center (www.yapstone.com/legal) of the Website, or other writing. Client’s continued use of YapStone Technology or Services after the posting of any change or amendment on the Website or by email will constitute Client’s agreement to such change or amendment; provided however, if Client does not agree to such change or amendment, Client can terminate the Agreement in accordance with Section 9.2 of this Agreement if Client provides such notice of termination within thirty (30) days following the date it becomes aware of the change. Amendments or changes by Client are only effective by a writing signed by both parties. Acquirer may amend this Agreement as it relates to Acquirer’s processing of Card transactions upon notice to Client in accordance with Acquirer’s standard operating procedures. This section does not apply to changes or amendments to the Fee Schedule, which are subject to Section 2.1 and 9.3.
12.6 Waiver. The failure by a party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions. No waiver of any provision or of any breach of this Agreement shall be deemed a further or continuing waiver of such provision, breach, or any other provision of this Agreement.
12.7 Applicable Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia, without giving effect to its conflict of laws principles. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.2 OF THIS AGREEMENT, YAPSTONE IS ALSO ENTITLED TO PURSUE A CLAIM IN SMALL CLAIMS COURT (AND NOT BY ARBITRATION) IF CLIENT FAILS TO TIMELY REMIT AMOUNTS DUE TO YAPSTONE, PROVIDED THAT YAPSTONE’S CLAIM AMOUNT IS WITHIN THE JURISDICTIONAL LIMITATIONS OF SUCH COURTS.
12.8 Survival. Sections and all parts of Sections 1.1A, 1.4, 1.5, 1.9, 2, 3.2, 3.3, 4, 5, 6, 7, 8, 9.3, 10, 11, 12.1, 12.3, 12.4, 12.6, 12.7, 12.8, 12.9, 12.10, 12.11 (subject to the terms of the CEA), 12.12 (subject to the terms in the links provided), 12.13 (subject to the terms in the links provided), and 12.14 shall survive termination of this Agreement.
12.9 Notices. All notices and other communications under this Agreement must be in writing and may be made by means of email or a posting on, or update to the Websites. Notices to Client will be delivered to the email address provided on the Client Services Application or as modified by Client through notice to YapStone or by posting on or update to the Website. Notices to YapStone can be made via email at firstname.lastname@example.org or via certified mail or overnight courier to: Yapstone Canada ULC, Attn: Legal Department, 2121 N. California Blvd., Suite 400, Walnut Creek, CA 94596.
12.10 Third Party Service Providers. YapStone may, without notice, change its third party service providers, including without limitation, any third party processor, Acquirer, or bank. All rights reserved for third party service providers herein apply to successor third party service providers. YapStone may use third party processors to provide some of the Services. Client acknowledges and agrees that these third party service providers are each intended third party beneficiaries of this Agreement as and only to the extent as their interests appear. For clarity, each third party service provider shall have the right to enforce directly against Client the terms of this Agreement which relate to the provision of the third party service provider’s services to Client and the ownership and protection of the intellectual property rights of the third party service provider and its licensors in and to its services. Client acknowledges that the third party service providers shall have no responsibility or liability with regard to YapStone’s obligations to Client under this Agreement.
12.11 Commercial Entity Agreement. At such time as Client processes, through YapStone, more than the threshold specified by the Card Networks (currently, one million dollars ($1M) in Visa and MasterCard card volume in a calendar year), Client is hereby bound by the Commercial Entity Agreement (“CEA”) with one of YapStone’s third-party acquirers and their sponsoring member banks as identified to Client from time to time by YapStone, available at: https://www.yapstone.com/legal/canada-commercial-entity-agreement. The CEA is not intended to change any transaction arrangements, fees, or other terms between Client and YapStone under this Agreement, but supplements this Agreement with respect to Client’s relationship with the Acquirer. The CEA may be modified by the applicable Acquirer at any time.
12.12 American Express. Client agrees that if it accepts American Express cards, Client is bound by the American Express Merchant Operation Regulations (available at: www.americanexpress.com/merchantopguide), which may be modified by American Express at any time and the American Express Terms, available at: www.yapstone.com/legal/americanexpressterms.
12.13 Taxes. Client is responsible for determining, collecting, and reporting any and all taxes required to be collected, reported, or paid in connection with Client’s business and use of the YapStone Technology and Services. Client represents and warrants that it will comply with all such obligations. YapStone may also have tax reporting responsibilities in connection with offering the Services. As a result, Client warrants, represents and agrees to provide YapStone with any documents and information reasonably required for YapStone to file any applicable tax forms.
12.14 Language. It is the express wish of the parties that this Agreement and any directly or indirectly related documents be drawn up in English. Les parties ont exprimé la volonté expresse que cette convention et tous les documents s’y rattachant directement ou indirectement soient rédigés en anglais.
13 Gateway-Only Clients. If Client is solely utilizing YapStone’s gateway technology to transfer data between its software/website and its payment processor, then: (i) for the purposes of this Agreement, “Services” means YapStone’s proprietary technology which enables Client’s software/website to transfer data to its payment processor; (ii) Sections 1.1, 1.2, 1.3, 1.4, 3.2, 3.3, 3.4, 6.2, 12.11, 12.12, and 12.13 of this Agreement do not apply to Client and YapStone; and (iii) the Gateway Order Form is a Form (as defined in this Agreement).