Legal

Last Updated: June 21, 2018

ZOMARON PRIVACY POLICY

Zomaron Inc., ("Zomaron" or “us” or “we”) is committed to maintaining the accuracy, confidentiality, and security of your personally identifiable information ("Personal Information") as defined in the Personal Information Protection and Electronic Documents Act S.C. 2000, c.5 (“PIPEDA”).
By using any of our products and services (“Services”) and Websites, you consent to the collection, use and disclosure of your Personal Information in accordance with this Privacy Policy. We recommend that you review this Privacy Policy carefully and retain it for future reference. If you do not agree with these terms, you are requested not to provide any Personal Information to Zomaron. You may also withdraw your consent at any time, subject to legal or contractual restrictions and reasonable notice. Please contact Zomaron’s Compliance Officer to withdraw your consent.
Certain Services can only be offered if you provide Personal Information to Zomaron. Consequently, if you choose not to provide us with any required Personal Information, we may not be able to offer you certain Services.

What information is Collected?

At Zomaron, we collect, use and disclose Personal Information to provide you with the Services, to respond to your requests and to communicate with you about our Services (including the Websites), including communications for promotional and marketing purposes.
Websites
When you visit the Zomaron website (www.zomaron.com) or the website of any Zomaron product or service (collectively, the “Websites”), we may collect Navigational Information about your visit, and/or Personal Information if you have voluntarily provided it to us. You are welcome to browse all our Websites at any time anonymously and privately without revealing any personal information about yourself.
Phone Calls
Personal Information may be collected on any call to our offices for the purposes of verifying the security of your account, or addressing any customer service inquiry you may have. For purposes of maintaining quality service, calls to any of our customer service lines may also be recorded.
Mobile and Web Applications (“Apps”)
To ensure our Apps function as intended, Personal Information is collected and stored within the Apps you have registered to use. Moreover, Navigational Information and other usage details, such as how often the App is used, the events that occur within the App, aggregated usage, and performance data is collected to ensure the proper functionality and ongoing performance of the Apps.
Personal Information
Most of the Personal Information we collect comes to us directly from you, and only with your consent. With your consent, we may collect Personal Information from you in person, over the telephone or by corresponding with you via mail, facsimile, our kiosks, the Internet, or from referrals by third parties such as your financial institution. Personal Information may include name, address, e-mail address, occupation, date of birth, business information, other information about yourself or your business, and transaction details.
Navigational Information
This is information about your computer and how you interact with our Websites which may include your IP address, geographical location, web browser, referral source, length of visit, and viewed pages.
Anonymous/Non-Personal Information
At Zomaron, we also collect anonymous/non-personal information. Anonymous/non-personal information is information that we do not associate with or trace back to a specific individual or business entity. For example, our web servers collect some anonymous/non-personal information automatically when you visit one of our Websites. Gathered electronically, this information may include the pages you visited, the type of web browser you are using, the level of encryption your browser supports and your Internet Protocol address.
To help us better understand our markets, we may also gather information for analytical purposes by conducting customer surveys, and by extracting demographic information from existing files.

How Your Information is Used

Personal Information
We use your Personal Information to communicate with you and to effectively provide you with the Services. This includes using your information to establish and ensure the proper functioning of online accounts for services through our Websites and Apps. We may also send you information about other products and services in which we believe you may be interested. Additionally, if you are a Zomaron merchant client, we will keep you informed about your merchant account activities, send you important notices, and respond to any special needs or enquiries you may have.
Zomaron Merchants
In particular, if you are a Zomaron merchant customer, our merchant agreement with you authorizes us to use and disclose the Personal Information that you provide to us to:
  • respond to any application for our services;
  • provide our services to you, including:
    • provide you transaction details, reporting, and receipts;
    • determining your financial situation by collecting credit and related financial information from our affiliates, strategic partners, credit agencies, other financial institutions and from references provided by you;
    • facilitating the provision of our services by sharing your information with our third-party service providers, credit and debit card issuers, credit and debit card associations, credit agencies and similar parties connected to credit or debit card services;
    • investigating potentially fraudulent or questionable activities regarding your merchant account(s) or the use of our services;
    • reporting purposes under credit or debit card association rules or regulations and to credit and debit card issuers, financial institutions or other credit or debit card related entities;
    • offering you related products and services that might benefit you; and
    • provide billing and statement services
  • in the course of an actual or potential sale, reorganization, consolidation, merger or amalgamation of our business.
Apps and Website Users
If you are an individual who is using our other services, we may use and disclose Personal Information to provide the services that have been requested, as well as in the following ways:
  • to facilitate the provision of our services by sharing the Personal Information with our third-party service providers, merchants you have transacted with, and similar parties connected to the services;
  • to offer related products and services that might benefit you;
  • improve and/or personalize your experience with our Apps and Websites;
  • provide you transaction details, reporting, and receipts;
  • to assist with any service inquiries you may have;
  • determining your financial situation by collecting credit and related financial information from our affiliates, strategic partners, credit agencies, other financial institutions and from references provided by you; and
  • in the course of an actual or potential sale, reorganization, consolidation, merger or amalgamation of our business.
At times, we may anonymize your personal information for statistical and/or analytical purposes to better improve our offerings and develop additional services that may be of benefit to our customers. We only use Personal Information for the purposes that we have disclosed to you. If for any reason your information is required to fulfill a different purpose, we will obtain your consent before we proceed.
Navigational Information
We may use this information to operate and improve the overall experience you have with our Apps and Websites. We may also use Navigational Information in combination with Personal Information to help cater our offerings to your specific needs.
Anonymous/Non-Personal Information
The anonymous/non-personal information gathered from the Apps and our Websites is used primarily for technical, research and analytical purposes like evaluating the various sections of the Websites. This information does not include any personal information and it is only retained until its intended purpose is fulfilled. It is our goal to continuously improve our service offerings to you. Therefore, we use anonymous/non-personal information collected from surveys, from public archives and by extracting information from existing files to better understand our customers’ interests, priorities, and satisfaction levels. Anonymous/Non-Personal Information may be used occasionally for security investigations.

When Information May be Disclosed to Outside Parties

We are obliged to keep your Personal Information confidential except when authorized by you, when required by law and/or when permitted by law.
Third Party Service Providers
At Zomaron, we sometimes contract third parties to perform specialized services such as establishing an online gateway for information transfer to our merchants, terminal delivery and repair, and shipping and fulfillment services. Our trusted third party service providers may at times be responsible for processing and handling some of the information we receive from you.
When we contract with these third parties, they are given only the information necessary to perform those services. Additionally, they are prohibited from storing, analyzing or using that information for purposes other than to carry out the service they have been contracted to provide, unless otherwise authorized by you. Furthermore, as part of our agreements, our suppliers and their employees and representatives are required to protect your information in a manner that is consistent with the privacy policies and practices that we have established.
Communications and Marketing
If you have not opted out of receiving promotional emails, newsletters and other materials from Zomaron, we may also use your Personal Information to promote and market our Services and to communicate special offers and promotions to you (including special offers and promotions sent on behalf of us through third-party providers). We may disclose your name and contact information (address and/or e-mail address) to these third parties so that they can send you special offers and promotions directly. You may unsubscribe from these emails at any time. Zomaron does not share or sell its customer lists to any third parties for marketing or promotional purposes.
To help Zomaron make e-mails of more interest to you, and for tracking purposes, Zomaron may receive a confirmation when an e-mail is delivered to you and/or you open an e-mail from us, if your computer supports such capabilities.
Cookies
Zomaron may, from time to time, use standard technology called "cookies" on its Apps and Websites. Cookies are small data files that are downloaded onto your computer or mobile device when you visit a particular web site. Zomaron uses Cookies to understand your browsing preferences based on previous or current site activity, which enables us to provide improved Services to our customers. We also use cookies to help us compile aggregate Navigational Data to improve the user experience of our Websites. You can disable cookies by turning them off in your browser; however, some areas of our Apps or Websites may not function properly if you do so.
Links to Third-Party Websites
Zomaron’s Websites may, from time to time, offer links to third-party websites. These websites may also collect your Personal Information, including information generated through the use of cookies. Zomaron is not responsible for how such third-party websites collect, use or disclose your Personal Information.
When Required by Law
The type of information we are legally required to disclose may relate to criminal investigations or government tax reporting requirements. In some instances, such as a legal proceeding or court order, we may also be required to disclose certain information to authorities. Only the information specifically requested is disclosed and we take precautions to satisfy ourselves that the authorities that are making the request have legitimate grounds to do so.
When Permitted by Law
There are some situations where we are legally permitted to disclose Personal Information such as employing reasonable and legal methods to enforce our rights under our agreements, to collect a delinquent account or investigate suspicion of illegal activities.

Sharing Your Information

Our Employees and Contractors
In the course of daily operations, access to private, sensitive and confidential information is restricted to authorized employees and contractors who have a legitimate business purpose and reason for accessing it. For example, when you call us, our designated employees will access your information to verify who you are and to assist you in fulfilling your requests.
As a condition of their employment or contract agreement, all employees and contractors of Zomaron are informed about the importance of privacy and are required to abide by the privacy standards we have established. They are also required to work within the principles of ethical behaviour and must follow all applicable laws and regulations.
Unauthorized access to and/or disclosure of customer information by an employee of Zomaron is strictly prohibited. All employees and contractors are expected to maintain the confidentiality of customer information at all times and failing to do so will result in appropriate disciplinary measures, which may include dismissal.

How We Safeguard Your Information

We use state-of-the-art technologies and maintain current security standards to ensure that your Personal Information is protected against unauthorized access, disclosure, inappropriate alteration or misuse. All safety and security measures are also appropriate to the sensitivity level of your information.
Customer Files
Electronic customer files are kept in a highly secured environment with restricted access. Paper-based files are stored in locked filing cabinets. Access is also restricted.
Online Security
We manage our server environment appropriately and our firewall infrastructure is strictly adhered to. Our security practices are reviewed on a regular basis and we routinely employ current technologies to ensure that the confidentiality and privacy of your information is not compromised.
Our Websites and Apps use Secure Socket Layer (SSL) implementation with a PCI compliant cipher. SSL is the industry standard tool for protecting and maintaining the security of message transmissions over the Internet. When you access your accounts or send information from secured sites, encryption will scramble your data into an unreadable format to inhibit unauthorized access by others.
To safeguard against unauthorized access to your accounts, you may be required to “sign-in” using a user id and a password to certain secured areas of Apps and Websites. Both user id and password are encrypted when sent over the Internet. If you are unable to provide the correct password, you will not be able to access these sections.
When you call our customer service centre you will be required to verify your identity by providing some personally identifying information.

Accessing and Amending Your Information

At Zomaron, decisions are made based on the information we have. Therefore, it is important that your Personal Information is accurate and complete. As a customer, you have the right to access, verify and amend the information held in your personal and financial files.
Accessing Your Information
For privacy-related matters, you may access and verify any of your information by contacting Zomaron’s Compliance Officer, in writing:
By Email: compliance@zomaron.com
By Mail:
Zomaron Inc.
3200 Wonderland Road South
London, Ontario, N6L 1A6
Attention: Compliance Officer
Before Zomaron can provide you with any information, correct any inaccuracies, or respond to any complaints we may ask you to verify your identity and to provide other details to help us to respond to your request. We will endeavor to respond within 30 days of receiving you request or complaint.
If you have questions or concerns regarding this Privacy Policy and/or Zomaron’s privacy practices, please contact the Compliance Officer. Zomaron will investigate all complaints received in writing and will attempt to resolve all complaints to customers’ satisfaction.
Amending Your Information
To help us keep your Personal Information up-to-date, we encourage you to amend inaccuracies and make corrections as often as necessary. Despite our efforts, errors sometimes do occur. Should you identify any incorrect or out-of-date information in your file(s), please contact the Compliance Officer, in writing, so we can make the proper changes. Where appropriate, we will communicate these changes to other parties who may have unintentionally received incorrect information from us. In each case, you will be required to verify your identity by providing some personally identifying information.
Office of the Privacy Commissioner of Canada
If you do not receive acknowledgment of your inquiry or complaint, or if your inquiry or complaint has not been addressed to your satisfaction, you may contact the Office of the Privacy Commissioner of Canada:
30 Victoria Street,
Gatineau, Quebec,
K1A 1H3
Tel: 1-800-282-1376
Fax: 819-994-5424
http://www.priv.gc.ca

Updating this Privacy Policy

Any changes to our privacy policy and information handling practices will be acknowledged in this privacy policy in a timely manner. We may add, modify or remove portions of this policy when we feel it is appropriate to do so. Zomaron will not reduce customers’ rights under this Privacy Policy without their express written consent. You may determine when this policy was last updated by referring to the modification date found at the bottom of this privacy policy.
Last Modified: June 21, 2018
Last Updated: June 12, 2018

ZOMARON HUB TERMS OF SERVICE

PLEASE READ THIS AGREEMENT CAREFULLY.
The following terms of service (the “Terms of Service”) form an integral part of the Zomaron Merchant Agreement between Zomaron Inc. (“Zomaron”) and the Merchant identified in the Agreement (“Merchant”). Capitalized terms shall have the meanings set forth below or in the section in which they first appear in these Terms of Service. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement Terms and Conditions. These Terms of Service, the Zomaron Merchant Agreement and the Agreement Terms and Conditions are collectively referred to herein as the “Agreement”.
By using the Services, the Merchant hereby agrees to be bound by this Agreement and Zomaron’s Privacy Policy which may be accessed through the Website without limitation or qualification. If you, as the Merchant, do not agree to be bound by this Agreement or Zomaron’s Privacy Policy, then you must not use the Services. This Agreement is a legal agreement between the Merchant and Zomaron. If you have any questions or concerns about this Agreement or Zomaron’s Privacy Policy, please email compliance@zomaron.com.
DEFINITIONS:
"Access Credentials" means any user name, identification number, password, license or security key, security token, or other security code, method, technology, or device used, alone or in combination, to verify a User’s identity and authorization to access and use the Service.
“Merchant Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Zomaron, directly or indirectly, by the Merchant or a User in connection with the Service.
“Merchant Systems” means the Merchant’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by the Merchant or through the use of third party services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent the Merchant or any User from accessing or using the Service or Zomaron Systems as intended by this Agreement.
“Intellectual Property Rights” means: (a) any and all proprietary rights provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trade-mark law; (iv) design patent or industrial design law; or (v) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in ideas, formulae, algorithms, concepts, inventions, processes or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions, processes or know-how; and (b) any and all applications, registrations, licences, sublicenses, agreements or any other evidence of a right in any of the foregoing.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.
“Service(s)” means the Zomaron Hub and its associated features.
“Software” means Zomaron’s proprietary software applications (including the Zomaron Hub) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Zomaron provides access to and use of as part of the Services.
“User” means an employee of the Merchant.
“Website” means the Zomaron website located at the URL https://www.zomaron.com.
“Zomaron Materials” means the Zomaron Systems, Software, Website and any and all other information, data, documents, materials, works, and other content that are provided or used by Zomaron in connection with the Services or otherwise comprise or relate to the Services or Zomaron Systems, including any third-party materials contained therein, but excluding the Merchant Data. For the avoidance of doubt, Zomaron Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Zomaron under this Agreement.
“Zomaron Systems” means the information technology infrastructure used by or on behalf of Zomaron in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Zomaron or through the use of third party services.
1. Services and Software
1.1
License. The Merchant acknowledges and agrees that the Services made available to the Merchant by Zomaron are licensed and not sold to the Merchant. Unless otherwise stated in this Section 1.1, and at all times subject to the Merchant’s compliance with the terms and conditions of the Agreement Zomaron hereby grants the Merchant a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to: (a) access and use the Service during the Term solely for purposes of Merchant’s internal business operations; and (b) install, access, and use the Software, in object code form only, in connection with Merchant’s use of the Services. The Merchant may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that the Merchant shall ensure its Users’ compliance with the Agreement and the Merchant shall be responsible and liable for any User’s non-compliance with the Agreement.
The Merchant acknowledges and agrees that Zomaron may revoke the license set out in this Section 1.1 at any time, with or without reason. The license granted hereunder will also terminate, with immediate effect, if the Merchant (or a User of the Merchant) breaches any term or condition of this Agreement.
1.2 Updates. Zomaron may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. The Merchant acknowledges and agrees that Zomaron may provide such Updates from time to time, provided, however, that Zomaron has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If the Merchant downloads a Zomaron-branded mobile application (“Application”) on a mobile device, when such mobile device is connected to the Internet, either: (a) the Application will automatically download and install all available Updates; or (b) the Merchant may receive notice of or be prompted to download and install available Updates. The Merchant acknowledges and agrees that the Applications or portions thereof may not properly operate should the Merchant fail to download Updates. 1.3 Limitations and Restrictions. The Merchant acknowledges and agrees that the Merchant is responsible for its activities, and the activities of its Users while using the Services. The Merchant shall not, and shall not permit any User or other person or entity to, access or use the Service or Zomaron Materials except as expressly permitted in the Agreement. Without limiting the foregoing, the Merchant shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Zomaron Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer the Service or any Zomaron Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Zomaron Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or Zomaron Materials or access or use the Service or Zomaron Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Zomaron Systems any Merchant Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Zomaron Materials, or Zomaron’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Zomaron Materials; (i) access or use the Service or Zomaron Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or Zomaron Materials for purposes of competitive analysis of the Service or Zomaron Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Zomaron’s detriment or commercial disadvantage; or (k) otherwise access or use the Service or Zomaron Materials beyond the scope of the rights granted under Section 1.1 (License) above.
2. Certain Merchant Obligations.
2.1 Merchant Control and Responsibility. The Merchant has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Merchant Systems, and the Merchant has and shall retain sole responsibility for: (a) all Merchant Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of the Merchant in connection with the Services; (c) the Merchant Systems; (d) the security and use of Merchant’s Access Credentials; and (e) all access to and use of the Service and Zomaron Materials directly or indirectly by or through the Merchant Systems or the Merchant’s Access Credentials, with or without the Merchant’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Zomaron is not liable for any loss or damage arising from Merchant’s failure to protect its Access Credentials. 2.2 Corrective Action and Notice. If the Merchant becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), the Merchant shall, and shall cause its Users to, immediately: (a) notify Zomaron of any such actual or threatened activity; and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.
3. Data
3.1 Privacy Policy.All Merchant Data and any other information Zomaron collects when the Merchant accesses and/or uses the Service is subject to Zomaron’s Privacy Policy available at www.zomaron.com/privacypolicy (“Privacy Policy”), which is hereby incorporated herein by reference. The Merchant consents to all actions taken by Zomaron with respect to such information in compliance with the Privacy Policy.
4. Communications and Feedback.
4.1 Zomaron does not guarantee the confidentiality of any communications made by the Merchant or a User to Zomaron or any other information transmitted by the Merchant or a User to Zomaron, including communications made by email or any information transmitted in the Merchant’s use of the Services. Zomaron may retain a copy of any such communications for the purpose of, and to the extent necessary for Zomaron to comply with applicable legal, regulatory or internal backup requirements. 4.2 By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to Zomaron (“Feedback”) to Zomaron, the Merchant acknowledges that: (i) the Merchant’s and/or a User’s Feedback does not contain confidential or proprietary information; (ii) Zomaron is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (iii) the Merchant grants Zomaron and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) the Merchant irrevocably waives any of its moral rights in and to such Feedback and assigns to Zomaron all rights in and to the Feedback in perpetuity; (v) neither the Merchant or any Users are entitled to any compensation or reimbursement of any kind from Zomaron under any circumstances; and (vi) the Merchant represents and warrants to Zomaron, and can demonstrate to Zomaron, upon request, that the Merchant has the rights to grant Zomaron the rights set out in (iii) above.
5. Content.
5.1 Services and Zomaron Materials. As between Merchant and Zomaron, Zomaron is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and Zomaron Materials, including all Intellectual Property Rights therein and thereto. Other than the limited license granted to Merchant pursuant to Section 1.1 (License) above, nothing in the Agreement grants Merchant any right, title, or interest in or to the Services or Zomaron Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to Zomaron. 5.2 Service Analyses. Zomaron may: (a) compile statistical and other information related to the performance, operation, and use of the Services; and (b) use data from the Zomaron Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (both (a) and (b) collectively referred to as, “Service Analyses”). Zomaron may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Merchant Data in a form that could serve to identify the Merchant or any individual. Service Analyses do not constitute Merchant Data, and Zomaron shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
6. Other Websites and Ancillary Services.
6.1 Links to Other Websites. Portions of the Service may contain links to websites operated by third parties. Such links are provided for the Merchant’s convenience only, and if the Merchant accesses any such linked websites, the Merchant does so at its own risk. Zomaron is not responsible for the content of any such websites, or the products and services sold on them, nor is Zomaron responsible or liable for any loss or damage that may arise from the Merchant’s use of such websites. When the Merchant visits a third-party website, the Merchant should read the terms and conditions and privacy policy that govern that particular website. Links to third-party websites do not imply Zomaron’s endorsement of any content, advertising, products, services, or other materials on or available through such websites. 6.2 Ancillary Services. As part of the functionality of certain parts of the Services, the Merchant may have access to certain third party online services (“Ancillary Services”). The Service is designed to allow the Merchant to access accounts that the Merchant may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s). The Merchant acknowledges and agrees that: (a) some third parties may not allow the Services to access certain Ancillary Services; and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to Zomaron, that may affect overall performance of the Services and prevent or delay aggregation of information from the Merchant’s account(s) on such Ancillary Services. The Merchant acknowledges and agrees that Zomaron has no control over any of the Ancillary Services and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in the Merchant’s inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services. 6.3 Collection of Ancillary Account Data. The Merchant acknowledges that in accessing the Ancillary Services through the Service, the Merchant’s username(s), password(s), and any other security or access information for the Merchant’s account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, “Ancillary Account Data”), may be collected and stored through the Service. The Merchant authorizes Zomaron, in conjunction with Zomaron’s provision of the Services, to: (a) access the Merchant’s account(s) on Ancillary Services and collect and Process the Merchant’s Ancillary Account Data; (b) access the applicable third-party websites and Ancillary Services using the Merchant’s Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above.
7. Changes and Suspension.
7.1 Changes to the Services. Zomaron reserves the right to make changes to the Services and Zomaron Materials, or any portion thereof, for any reason. Merchant agrees that Zomaron will not be liable to Merchant or third party for any such change. 7.2 Temporary Suspension of the Services. Zomaron may temporarily suspend the Service, in whole or in part, where required by law (in the case of security violations or threats), for service maintenance or repair, or for any other reason deemed necessary by Zomaron in the circumstances. 7.3 Suspension of Merchant’s Access. Zomaron may suspend the Merchant’s and/or any of its Users’ access to or use of all or any part of the Services or Zomaron Materials, without incurring any resulting obligation or liability, if: (a) Zomaron receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Zomaron to do so; (b) Zomaron believes, in its good faith and reasonable discretion, that Merchant or any of its Users have violated any part of these Terms of Service, including the provisions of Section 1.3 (Limitations and Restrictions); or (c) the Merchant fails to pay any amount when due under the Agreement. Any such suspension shall not excuse the Merchant from its obligation to make the payment(s) contemplated under the Agreement to Zomaron.
8. Indemnification.
8.1 Indemnification of Zomaron. The Merchant will indemnify, defend, and hold harmless Zomaron, its Affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Merchant Data, including any Processing of Merchant Data by or on behalf of Zomaron in accordance with this Agreement; (b) Zomaron’s compliance with any specifications or directions provided by or on behalf of Merchant; or (c) any breach or violation of this Agreement or applicable law by Merchant, any User, or any other person accessing and/or using any of the Services or Zomaron Materials directly or indirectly by or through the Merchant Systems or Merchant’s Access Credentials, with or without Merchant’s knowledge or consent. Furthermore, the Merchant will defend, indemnify and hold harmless Zomaron, its Affiliates and each of their respective directors, officers, employees, contractors, suppliers, licensors, representatives and agents from all liabilities, claims and expenses (including reasonable legal fees) that arise from, are based upon or in connection with, or relate to the Merchant’s use of the Services, or anyone using the Merchant’s (or a User’s) login credentials to the Services, or any violation or alleged violation by the Merchant or a User using the Merchant’s (or a User’s) login credentials of these Terms of Service.
9. Disclaimers.
9.1
Disclaimer of Warranties. THE MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, EQUIPMENT, AND ZOMARON MATERIALS IS AT THE MERCHANT’S SOLE RISK. ALL SERVICES, EQUIPMENT, AND ZOMARON MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ZOMARON HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, ZOMARON DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, EQUIPMENT, OR ZOMARON MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET THE MERCHANT’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
IN NO EVENT WILL ZOMARON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT RESULT OR ARISE FROM OR ARE IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, EQUIPMENT AND ZOMARON MATERIALS OR ANY THIRD-PARTY WEBSITES, EVEN IF ZOMARON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MERCHANT HEREBY EXPRESSLY HOLDS ZOMARON HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITY, DAMAGES, INJURIES AND EXPENSES (INCLUDING ANY PERSONAL INJURY CLAIMS) ARISING OUT OF OR RELATING TO THE MERCHANT’S (OR A USER’S) USE OF ANY OF THE SERVICES, EQUIPMENT OR ZOMARON MATERIALS, THIRD-PARTY WEBSITES AND ANY ALLEGED OR ACTUAL VIOLATION BY THE MERCHANT (OR A USER) OF THESE TERMS OF SERVICE.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN THE MERCHANT’S JURISDICTION, ZOMARON WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO THE MERCHANT (OR A USER), INCLUDING ANY LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TERMS OF SERVICE WILL APPLY: (i) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY THE MERCHANT (OR A USER), INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS OF SERVICE OR OF ANY REMEDY CONTAINED HEREIN; AND (ii) TO ZOMARON AND ITS AFFILIATES, THEIR SUCCESSORS, ASSIGNS, AGENTS, SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND INDEPENDENT CONTRACTORS.
THE MERCHANT ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS OF SERVICE CONSTITUTE AN ESSENTIAL ELEMENT OF THESE TERMS OF SERVICE AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS, THE FEES AND OTHER TERMS IN THESE TERMS OF SERVICE WOULD BE SUBSTANTIALLY DIFFERENT. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE, IN NO EVENT WILL ANY DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS OF ZOMARON OR ANY DISTRIBUTORS, SUPPLIERS, INDEPENDENT CONTRACTORS, CUSTOMERS, PARTNERS OR ORGANIZATIONS THAT WORK WITH ZOMARON IN CONNECTION WITH THE SERVICES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, OR ANY AFFILIATES OF ZOMARON HAVE ANY LIABILITY ARISING FROM OR RELATED TO THESE TERMS OF SERVICE, THE SERVICES, EQUIPMENT OR ZOMARON MATERIALS.
9.2 No Professional Advice.The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. The Merchant should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.
10. Limitation of Liability.
10.1 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF ZOMARON, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY MERCHANT TO ZOMARON UNDER THE AGREEMENT DURING THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. General.
11.1 Assignment. Zomaron may assign this Agreement, in whole or in part, without notice or consent. Zomaron may perform all obligations hereunder directly, or may have some or all of its obligations performed by contractors, subcontractors or other third-parties. The Merchant may not assign this Agreement, in whole or in part, without the prior written consent of Zomaron, and any such assignment by the Merchant without Zomaron’s prior written consent will be of no effect. 11.2 Force Majeure. Notwithstanding anything contained in this Agreement, Zomaron will not be in default or breach of these Terms of Service for failure to fulfill our obligations when due to or contributed by causes beyond our reasonable control, including: an act of God such including a fire, flood, earthquake, epidemic, volcanic eruption, adverse weather conditions, storm, hurricane or other natural disaster, a strike, lock-out, labour dispute; war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war rebellion revolution insurrection or military or usurped power, terrorism, act of sabotage, civil disturbance, blockade, riot, civil commotion, malicious damage, interruption or failure of electricity, power supply, interruption or failure of the internet or other telecommunication facility, network or means of telecommunication, computer virus, or bug, third party computer infiltration, attack by a hacker, governmental restriction, or any other act or circumstance that materially increases or affects the risk or danger to the health or safety of members of the public. 11.3 Geographic Restrictions. Zomaron does not represent that the Service or any Zomaron Materials are appropriate or available for use outside of Canada. Access to and use of the Service may not be legal by certain persons or in certain countries. If the Merchant accesses the Service from outside the Canada, the Merchant does so on its own initiative and is responsible for compliance with all applicable laws. 11.4
Notices. All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at Zomaron’s discretion) set forth in the Application and will be deemed to have been provided on the date which the notice was sent. All notices to Zomaron required or permitted under the Agreement will be provided via registered mail to:
Zomaron Inc.
3200 Wonderland Road South
London, Ontario
N6L 1A6
Attention: Corporate Counsel
and will be deemed to have been given on the date of Zomaron’s receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes.
11.5 No Waiver; Severability. The failure of Zomaron to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law. 11.6 Governing Law; Jurisdiction; Class Action Waiver. This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. Zomaron reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owned by the Merchant to Zomaron in connection with the Merchant’s use of the Services, the Zomaron Materials or any portion thereof; or (ii) the Merchant’s actual or threatened violation of this Agreement or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to this Agreement, and/or any of the Services and/or the Zomaron Materials. The Merchant agrees that, in the event that there is a dispute under the Agreement and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from the Agreement; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 11.3 is found to be unenforceable, the remainder of this Section 11.3 will still be given full force and effect. 11.7 Changes. Zomaron reserves the right at any time, and from time to time, to change these Terms of Service and to notify you of such change by posting the updated version of these Terms of Service on the Website. The Merchant acknowledges and agrees that it is responsible for regularly reviewing these Terms of Service, including by checking the date of the “Last Update” at the beginning of these Terms of Service. Continued use of any Services after any such changes will constitute the Merchant’s consent to be bound by such changes, with continued provision of the use of the Services in whole or in part, constituting consideration from Zomaron to the Merchant for so being bound. The Merchant’s sole right with respect to any dissatisfaction with these Terms of Service, any policy or practice of Zomaron in operating, offering or providing the Services, is to stop using the Services. 11.8 Survival. The following sections of these Terms of Service will survive any termination of these Terms of Service, termination of this Agreement, or revocation of the License to the Merchant under Section 1.1: Definitions, Section 4 (Communications & Feedback), Section 5 (Content), Section 6 (Other Websites and Ancillary Services), Section 8 (Indemnification) Section 9 (Disclaimers), Section 10 (Limitation of Liability) and this Section 11 (General). 11.9 Language. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Last Updated: June 12, 2018

ZOMARON PAY TERMS AND CONDITIONS

These are the terms and conditions (“Terms and Conditions”) of the Zomaron Pay Application (the “Application”) which is entered into by Zomaron Inc., its agent(s), partner(s), or other authorized representative(s) (collectively or individually “Zomaron”) and the merchant(s) (the “Merchant”) whose information appears on the Application. The Application, together with: (i) these Terms and Conditions; (ii) a summary of the complaints handling process, (iii) the Payment Acquirer terms of service or terms and conditions, as applicable; (iv) Zomaron Hub Terms of Service; (v) any other Payment Acquirer forms, agreements, guarantees, or other similar documents, as applicable; and (vi) all appendices, schedules, exhibits and addenda to the Application, whether such schedules, exhibits and/or addenda became effective on the same date that the aforementioned applications were executed by the Merchant or at a later date), collectively form the agreement (the “Agreement”) between Zomaron and the Merchant.
The Merchant intends on providing its customers with the option of purchasing its goods and/or services and has selected Zomaron to provide credit and debit payment processing and other services as mutually agreed to by the parties from time to time (collectively, the “Services”).
By accepting this Agreement, the Merchant agrees to be bound by all applicable provisions, including any amendments, restatements, supplements, or any other modification of this Agreement, and will ensure compliance of this Agreement by any and all persons associated with the Merchant, including but not limited to, partners, employees, contractors, agents, and/ or representatives. If you have any questions or concerns about these Terms and Conditions, please contact Zomaron by email at compliance@zomaron.com.
1. DEFINITIONS “Affiliate(s)” of any Person means, at the time such determination is made, any other Person, Controlling, Controlled by or under common Control with such first Person, in each case, whether directly or indirectly. “Equipment” means the hardware and/or software used to process payment transactions, including but not limited to devices requiring the input of a personal identification number, devices using near-field communication (NFC) to communication with the payment card, any kiosk hardware, virtual payment processing software, or any other similar device. “Payment Acquirer” means a bank or financial institution that processes credit or debit card payments for the Merchant. “Website” means the website located at the URL www.zomaron.com and all related webpages. 2. SERVICES CONDITIONAL The provision of the Services is conditional on the acceptance of the Merchant by Zomaron and/or a Payment Acquirer associated with Zomaron. 3. TERM This Agreement will be effective upon the date of acceptance and will continue for a term of three (3) years unless otherwise terminated in accordance with this Agreement (the “Initial Term”). Upon the expiry of the Initial Term, this Agreement will automatically renew on the terms and conditions contained in this Agreement for additional periods of six (6) months each (each, a “Renewal Term”) unless a party provides written notice of non-renewal to the other party no fewer than 90 days prior to the expiry of the Initial Term or then-current Renewal Term, as applicable. For certainty, in this Agreement, all references to the “Term” mean, collectively, the Initial Term and the Renewal Term (if any). 4. FEES AND SURCHARGES (a) Each transaction, including approved and declined transactions, key exchanges, totals, and settlements, will be subject to the transaction fees set out in the Application or as otherwise agreed upon by Zomaron and the Merchant (collectively, the “Transaction Fees”). (b) The Merchant acknowledges that a portion of the surcharges set out in the Application are the property of Zomaron and shall be held in trust by the Merchant for Zomaron until such time that Zomaron recovers said surcharges. (c) The Merchant acknowledges that wireless fees set out in the Application shall apply to all wireless Equipment. (d) The application fee is a one-time, non-refundable amount set out in the Application (the “Application Fee”). The Application Fee shall be paid by the Merchant upon the submission of each Application, regardless of whether the Application is approved or denied. (e) The Merchant acknowledges that Zomaron reserves the right to charge administrative fees for and relating to the Services. Said administrative fees shall be forty-five dollars ($45.00) for any account maintenance, chargeback, or insufficient funds notices, and sixty-five cents ($0.65) for each touchtone or voice authorization. (f) Notwithstanding anything contained herein, the Merchant hereby irrevocably authorizes and directs Zomaron or any financial institution acting on behalf of Zomaron, to deduct any and all amounts, including but not limited to all surcharges, Transaction Fees, or any wireless, Equipment swap, restocking, administrative, cancellation, and reconnection fees, owed by the Merchant in accordance with this Agreement from the funds collected from processed transactions or directly from the Merchant’s bank account in accordance with the Preauthorized Debit Agreement attached hereto. This authorization in no way limits Zomaron to any method of collection for the recovery of monies owed. As agreed upon by Zomaron and the Merchant, Zomaron may bill the Merchant for any amount owing as a result of this Agreement. (g) If attempts by Zomaron, or any financial institution acting on behalf of Zomaron, to obtain monies from the Merchant’s bank account are refused or returned due to insufficient funds being available or otherwise, Zomaron reserves the right to charge the Merchant an administrative fee of forty-five dollars ($45.00) in addition to any and all outstanding amounts owed. (h) The Merchant acknowledges that any withdrawal from the Merchant’s bank account by Zomaron in accordance with this Agreement, is a pre-authorized debit for business purposes as defined under the Canadian Payment Association Rule H1. Therefore, the Merchant waives the right to receive advanced notice from Zomaron of any and all such pre-authorized debits. The Merchant hereby agrees to cooperate with Zomaron in establishing and maintaining this preauthorized debit payment mechanism. 5. EQUIPMENT (a) The Merchant hereby agrees to: (i) purchase; or (ii) rent the Equipment for the price specified on the Pay Application; or (iii) lease the Equipment from Zomaron directly or on behalf of a third party. The terms of any lease shall be provided to the Merchant apart from this Agreement. (b) The refusal or inability whatsoever to accept delivery of Equipment by the Merchant or the failure to disclose any pertinent information that results in Zomaron reclaiming the Equipment will result in the Merchant being subject to a five hundred dollar ($500.00) restocking fee per piece of Equipment reclaimed by Zomaron. The Merchant hereby authorizes Zomaron to deduct any restocking fee owed directly from the Merchant’s bank account. This authorization by no means limits Zomaron to any method of collection for restocking fees owed. (c) The Merchant acknowledges that the Equipment may only be removed from the Merchant’s premises with prior written approval from Zomaron. Removal of the Equipment shall be at the sole cost of the Merchant. (d) The Merchant acknowledges that a fee of fifty dollars ($50.00) will be charged for any Equipment swapped for defect within the first year of receiving the Equipment, and two hundred dollars ($200.00) any time thereafter. (e) The Merchant acknowledges and agrees that the Equipment may become damaged or cause property damage, personal injury or death during any period of time that the Equipment is in the Merchant’s possession or under its control, including as a result of the Equipment not being affixed to a wall. The Merchant hereby agrees to indemnify Zomaron pursuant to Section 9(c) of this Agreement for any such claims of property damage, personal injury or death. 6. DATA (a) The Merchant authorizes Zomaron to share any and all Merchant data with any third party for the purpose of enabling the provision of ancillary Services to the Merchant. (b) The Merchant further authorizes Zomaron to share any and all data obtained through the provision of the Services to the Merchant for the purposes of: (i) developing and providing value added services to the Merchant and other Zomaron and/or Payment Acquirer merchants; (ii) compensating referral, association, and/or value-added partners (“Partners”), where applicable; (iii) providing Merchant service and performance updates to Partners, where applicable; and (iv) for analysis, marketing and communications purposes. 7. MERCHANT RESPONSIBILITIES (a) In addition to all other requirements and obligations set out in this Agreement, the Merchant shall: i. process transactions for only bona fide sales of goods and/or services; ii. adhere and comply with all laws or requirements of governmental and/or governing bodies; iii. be bound and abide by the Interac Client Terms and Conditions; iv. notify Zomaron in writing of any account adjustments relating to any debit and/or credit transactions within twenty (20) days of being processed; v. maintain and provide Zomaron access to a bank account at all times for the provision of debits and deposits in accordance with this Agreement; vi. take appropriate measures to prevent unauthorized use of the Equipment; vii. notify Zomaron immediately upon discovery of any loss of, damage to, or unauthorized use of the Equipment; viii. maintain the Equipment in a state of good working order; ix. promptly report any errors, malfunctions, or any other problems with the equipment; x. permit Zomaron free and unrestricted access to the Merchant’s premises during normal business hours as required for site preparation, installation, investigation, and maintenance activities; xi. authorize Zomaron to identify the Merchant as a user of the Equipment and Services in marketing material relating directly to the Services and/or Equipment; xii. maintain appropriate reporting and operational processes; xiii. retain all transaction receipts for no less than one (1) year from the date of settlement; xiv. provide Zomaron with accurate, anonymized or complete employee work shift logs within twenty-four (24) hours of receiving the request; xv. provide Zomaron access to examine and verify at any reasonable time any and all records pertaining to transactions processed through the Equipment; xvi. aid in the remote diagnostics and servicing of the Equipment; and xvii. any other task required by Zomaron in order for the adequate provision of Services to the Merchant. (b) The Merchant shall also provide any receipts retained in accordance with 7(a)(xiii) to Zomaron upon request. Failing to provide said receipts may result in the reversal of payments processed and the amount reversed being charged directly to the Merchant. 8. FEEDBACK; MARKETING AND COMMUNICATIONS Zomaron does not guarantee the confidentiality of any communications made by you to Zomaron or any other information transmitted by you to Zomaron, including communications made by email or any information transmitted in your use of the Services. We may retain a copy of any such communications for the purpose of, and to the extent necessary for us to comply with applicable legal, regulatory or internal backup requirements. By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to Zomaron (“Feedback”) to Zomaron, you acknowledge that: (i) your Feedback does not contain confidential or proprietary information; (ii) Zomaron is not under any obligation of confidentiality, express or implied, with respect to the feedback; (iii) you grant Zomaron and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) you irrevocably waive your moral rights in and to such Feedback and assign to Zomaron all rights in and to your Feedback in perpetuity; (v) you are not entitled to any compensation or reimbursement of any kind from Zomaron under any circumstances; and (vi) you represent and warrant to Zomaron, and can demonstrate to Zomaron, upon request, that you have the rights to grant Zomaron the rights set out in (iii) above. You specifically and expressly consent to Zomaron providing you with various communications, newsletters, correspondence, promotions and other documentation by email, text message or other forms of electronic communication and you hereby confirm that all such communication is accepted and in compliance with An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying Out Commercial Activities and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act S.C. 2010, c.23 (“CASL”) as amended or replaced from time to time. 9. DISCLAIMERS; LIMITATION OF LIABILITY (a) The Services are provided by Zomaron on an “as is” and “as available” basis and without warranties of any kind, express or implied. Zomaron disclaims all warranties, express or implied, including implied warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose and non-infringement. Zomaron does not warrant that the installation of the Equipment or the use of any of the Equipment or Zomaron’s Services will be uninterrupted, error-free or free of viruses or other harmful components. Zomaron may correct, modify, amend, enhance, improve and make any other changes to any Equipment or Services at any time, or discontinue providing any Equipment or Services at any time with or without notice to you. (b) In no event will Zomaron be liable for any indirect, incidental, special or consequential damages that result or arise from or are related to or in connection with the use of, or the inability to use any Equipment or Service, even if Zomaron has been advised of the possibility of such damages. Zomaron shall not be held liable for any damages, lost profits, lost revenues, lost opportunities, loss of goodwill, loss of brand or Merchant value, costs and/or expenses in any way relating to or arising out of this Agreement. This also includes losses suffered as a result of communication failures or disruptions, or the availability of technical support and you expressly hold Zomaron harmless from and against any and all claims, losses, liability, damages, injuries and expenses (including personal injury claims) arising out of or relating to your use of any Equipment or the Services, and any alleged or actual violation by you of this Agreement. (c) The Merchant hereby expressly holds Zomaron and its officers, directors, employees, staff, insurers, Affiliates, subcontractors and representatives, and their respective officers, directors, employees, insurers, heirs successors and assigns, as applicable (the “Releasees”) of and from all manner of action, obligation, causes of action, suits, debts, accounts, bonds, covenants, contracts, claims and/or demands whatsoever (collectively, “Claims”) that may at any time be asserted against a Releasee arising out of or relating to the Merchant’s use of the Services and/or the Equipment, damage to the Equipment or any property damage, personal injury or death caused by an act or omission of the Merchant relating to the Equipment, however caused, including but not limited to securing the Equipment from tampering or falling, during any period of time which the Equipment is in the Merchant’s possession or under its control and any alleged violation by the Merchant of these Terms and Conditions and agrees to indemnify the Releasees in respect of any costs or expenses (including reasonable legal fees) that the Merchant may incur in respect of any such claim. Furthermore, the Merchant shall be liable for and shall indemnify the Releasees in respect of all loss, liability, claims, demands, damages, costs, charges, expenses and proceedings in respect of personal or bodily injury to or death of any person whatsoever or loss of or damage to any third party’s property arising out of any act or omission of the Merchant related to the Equipment during any period of time during which the Equipment is in the Merchant’s possession or under its control. (d) Zomaron shall not be held liable for any delay or default in the performance of our obligations in this Agreement as a result of any failure of electrical, communication, banking, or Payment Acquirer systems, acts of God, flood, fire, severe weather, strike, lockout, acts of war, governmental acts or restrictions, or emergency situations. (e) Except as expressly provided in these Terms and Conditions, and to the maximum extent permitted by applicable law in the Merchant’s jurisdiction, Zomaron will have no other obligation, duty or liability whatsoever in contract, tort or otherwise to you, including any liability for negligence or strict liability. The limitations, exclusions and disclaimers in these Terms and Conditions will apply: (i) irrespective of the nature of the cause of action, demand or action by you, including breach of contract, tort, negligence, strict liability or any other legal theory and will survive a fundamental breach, breach of a fundamental term or breaches or the failure of the essential purpose of these Terms and Conditions or of any remedy contained herein; and (ii) to Zomaron and its Affiliates, their successors, permitted assigns, agents, suppliers and each of their respective directors, officers, employees and contractors. (f) In no event will Zomaron’s aggregate liability based upon, arising from, in connection with or related to these Terms and Conditions, the Services or the Equipment exceed the Transaction Fees, if any, paid by the Merchant that gave rise to the claim, in the month in which the cause of action underlying such claim arose. This limitation applies for any and all forms of legal action brought against Zomaron and constitutes the Merchant’s exclusive remedy. (g) The Merchant acknowledges and agrees that the disclaimers, exclusions and limitations set forth herein constitute an essential element of these Terms and Conditions and that in the absence of such disclaimers, exclusions and limitations, the Transaction Fees and other terms in these Terms and Conditions would be substantially different. In addition to the limitations and exclusions set out above, in no event will any directors, officers, employees, agents, successors or assigns of Zomaron, or any distributors, suppliers, contractors, customers, vendors, partners or organizations that work with Zomaron in connection with the Services and/or the Equipment or their respective directors, officers, employees, agents, successors or assigns, or any Affiliates of Zomaron have any liability arising from or related to these Terms and Conditions, the Services or the Equipment. 10. INDEMNIFICATION The Merchant shall indemnify and hold Zomaron harmless from and against any and all claims, suits, damages, losses, costs, expenses and fees incurred directly or indirectly by Zomaron as a result of the Merchant failing to utilize the Equipment or Services in accordance with this Agreement, and for any liability to third parties for any injuries or damages not resulting solely from the negligence or wilful misconduct of Zomaron, which results from the provision of Equipment or Services from Zomaron. 11. ASSIGNMENT Neither party may assign or transfer all or any part of this Agreement or its rights or obligations under this Agreement to any other person without the prior written consent of the other party, and any purported assignment without such consent shall be null and void. Notwithstanding the foregoing, Zomaron may, without the Merchant’s prior written consent, assign any of Zomaron’s rights and/or obligations under this Agreement to any of its Affiliates, or the surviving corporation with or into which Zomaron merges or consolidates, or to an entity to which Zomaron transfers all, or substantially all, of its voting securities or assets. 12. TERMINATION (a) Zomaron may terminate this Agreement or cease the provision of Services for any unit of Equipment at any time without notice if, (i) the Merchant fails to comply with any material terms of this Agreement; or (ii) Zomaron believes that the Merchant represents an unacceptable risk to the integrity of Zomaron and/or the Services. (b) The Merchant may terminate this Agreement at any time, however shall be subject to an early termination fee (the “ETF”) of two hundred and ninety-five dollars ($295) per unit of Equipment. (c) The Merchant will not be subject to an ETF if termination occurs within ninety (90) days following notification from Zomaron of, (i) a fee increase, (ii) an additional fee related to Interac Direct Payment transactions, and/or (iii) the reduction in applicable Interchange Rates. (d) This Agreement will automatically terminate and the Merchant will be subject to an ETF of two hundred and ninety-five dollars ($295) per unit of Equipment, if the Merchant fails to process any payment transaction using the Services and/or Equipment for ninety (90) consecutive days. Thereafter, the Merchant will be subject to a reconnection fee of two hundred and ninety-five dollars ($295) per unit of Equipment, should the Merchant wish to renew this Agreement. (e) Termination of this Agreement will not affect any other existing agreement Zomaron or any other party may have with the Merchant. 13. ENUREMENT This Agreement is binding upon the parties hereto and their respective heirs, executors, administrators, legal and/or personal representatives, successors, and assigns. 14. AMENDMENTS No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings. 15. NOTICES All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at Zomaron’s discretion) set forth in the Application and will be deemed to have been provided on the date which the notice was sent. All notices to Zomaron required or permitted under the Agreement will be provided via registered mail to: Zomaron Inc.
3200 Wonderland Road South
London, Ontario
N6L 1A6
Attention: Corporate Counsel
and will be deemed to have been given on the date of Zomaron’s receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes. 16. AMENDMENTS No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings. 17. NO WAIVER; SEVERABILITY No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings. (a) The failure of either party to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights. (b) If any provision of this agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law. 18. GOVERNING LAW; JURISDICTION; CLASS ACTION WAIVER This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. Zomaron reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owned by the Merchant to Zomaron in connection with the Merchant’s use of the Services or Equipment or any portion thereof; or (ii) the Merchant’s actual or threatened violation of these Conditions of Use or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to these Terms of and Conditions or any of the Services or the Equipment. The Merchant agrees that, in the event that there is a dispute under these Terms and Conditions and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from these Terms and Conditions; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 18 is found to be unenforceable, the remainder of this Section 18 will still be given full force and effect. 19. CHANGES Zomaron reserves the right at any time, and from time to time, to change these Terms and Conditions and to notify you of such change by posting the updated version of these Terms and Conditions on the Website. The Merchant acknowledges and agrees that it is responsible for regularly reviewing these Terms and Conditions, including by checking the date of the “Last Update” at the end of these Terms and Conditions. Continued use of any Services or Equipment after any such changes will constitute the Merchant’s consent to be bound by such changes, with continued provision of the use of the Services or Equipment, in whole or in part, constituting consideration from Zomaron to the Merchant for so being bound. The Merchant’s sole right with respect to any dissatisfaction with these Terms and Conditions, any policy or practice of Zomaron in operating, offering or providing the Services or the Equipment, is to stop using the Services and the Equipment. 20. SURVIVAL The following provisions in these Terms and Conditions will survive any termination of these Terms and Conditions or the expiration or termination of the Agreement: Section 4(Fees and Surcharges), Section 7(xiv), Section 8 (Feedback; Marketing and Communications), Section 9 (Disclaimers; Limitation of Liability), Section 10 (Indemnification), Section 15 (Notices), Section 17 (No Waiver; Severability), Section 18 (Governing Law; Jurisdiction, Class Action Waiver), this Section 19, and Section 20 (Language). 21. LANGUAGE It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Last Updated: June 28, 2018

ZOMARON PAY & GIVEPOINT COMBO TERMS AND CONDITIONS

These are the terms and conditions (“Terms and Conditions”) of the Zomaron Givepoint/Pay Application (the “Application”) which is entered into by Zomaron Inc., its agent(s), partner(s), or other authorized representative(s) (collectively or individually “Zomaron”) and the merchant(s) (the “Merchant”) whose information appears on the Application. The Application, together with: (i) these Terms and Conditions; (ii) a summary of the complaints handling process, (iii) the Payment Acquirer terms of service or terms and conditions, as applicable; (iv) Zomaron Hub Terms of Service; (v) any other Payment Acquirer forms, agreements, guarantees, or other similar documents, as applicable; and (vi) all appendices, schedules, exhibits and addenda to the Application, whether such schedules, exhibits and/or addenda became effective on the same date that the aforementioned applications were executed by the Merchant or at a later date), collectively form the agreement (the “Agreement”) between Zomaron and the Merchant.
The Merchant intends on providing its customers with the option of purchasing its goods and/or services, and making donations using credit and/or debit cards and has selected Zomaron to provide credit and debit payment processing and other services as mutually agreed to by the parties from time to time (collectively, the “Services”). By accepting this Agreement, the Merchant agrees to be bound by all applicable provisions, including any amendments, restatements, supplements, or any other modification of this Agreement, and will ensure compliance of this Agreement by any and all persons associated with the Merchant, including but not limited to, partners, employees, contractors, agents, and/ or representatives. If you have any questions or concerns about these Terms and Conditions, please contact Zomaron by email at compliance@zomaron.com.
1. DEFINITIONS
“Affiliate(s)” of any Person means, at the time such determination is made, any other Person, Controlling, Controlled by or under common Control with such first Person, in each case, whether directly or indirectly.
“Equipment” means the hardware and/or software used to process payment transactions, including but not limited to devices requiring the input of a personal identification number, devices using near-field communication (NFC) to communication with the payment card, any kiosk hardware, virtual payment processing software, or any other similar device.
"Payment Acquirer" means a bank or financial institution that processes credit or debit card payments for the Merchant. “Website” means the website located at the URL www.zomaron.com and all related webpages.
2. SERVICES CONDITIONAL
The provision of the Services is conditional on the acceptance of the Merchant by Zomaron and/or a Payment Acquirer associated with Zomaron.
3. TERM
This Agreement will be effective upon the date of acceptance and will continue for a term of one (1) year unless otherwise terminated in accordance with this Agreement (the “Initial Term”). Upon the expiry of the Initial Term, this Agreement will automatically renew on the terms and conditions contained in this Agreement for additional periods of six (6) months each (each, a “Renewal Term”) unless a party provides written notice of non-renewal to the other party no fewer than 90 days prior to the expiry of the Initial Term or then-current Renewal Term, as applicable. For certainty, in this Agreement, all references to the “Term” mean, collectively, the Initial Term and the Renewal Term (if any).
4. FEES AND SURCHARGES
(a) Each transaction, including approved and declined transactions, key exchanges, totals, and settlements, will be subject to the transaction fees set out in the Application or as otherwise agreed upon by Zomaron and the Merchant (collectively, the “Transaction Fees”). (b) The Merchant acknowledges that a portion of the surcharges set out in the Application are the property of Zomaron and shall be held in trust by the Merchant for Zomaron until such time that Zomaron recovers said surcharges. (c) The Merchant acknowledges that wireless fees set out in the Application shall apply to all wireless Equipment. (d) The application fee is a one-time, non-refundable amount set out in the Application (the “Application Fee”). The Application Fee shall be paid by the Merchant upon the submission of each Application, regardless of whether the Application is approved or denied. (e) The Merchant acknowledges that Zomaron reserves the right to charge administrative fees for and relating to the Services. Said administrative fees shall be forty-five dollars ($45.00) for any account maintenance, chargeback, or insufficient funds notices, and sixty-five cents ($0.65) for each touchtone or voice authorization. (f) Notwithstanding anything contained herein, the Merchant hereby irrevocably authorizes and directs Zomaron or any financial institution acting on behalf of Zomaron, to deduct any and all amounts, including but not limited to all surcharges, Transaction Fees, or any wireless, Equipment swap, restocking, administrative, cancellation, and reconnection fees, owed by the Merchant in accordance with this Agreement from the funds collected from processed transactions or directly from the Merchant’s bank account in accordance with the Preauthorized Debit Agreement attached hereto. This authorization in no way limits Zomaron to any method of collection for the recovery of monies owed. As agreed upon by Zomaron and the Merchant, Zomaron may bill the Merchant for any amount owing as a result of this Agreement. (g) If attempts by Zomaron, or any financial institution acting on behalf of Zomaron, to obtain monies from the Merchant’s bank account are refused or returned due to insufficient funds being available or otherwise, Zomaron reserves the right to charge the Merchant an administrative fee of forty-five dollars ($45.00) in addition to any and all outstanding amounts owed. (h) The Merchant acknowledges that any withdrawal from the Merchant’s bank account by Zomaron in accordance with this Agreement, is a pre-authorized debit for business purposes as defined under the Canadian Payment Association Rule H1. Therefore, the Merchant waives the right to receive advanced notice from Zomaron of any and all such pre-authorized debits. The Merchant hereby agrees to cooperate with Zomaron in establishing and maintaining this preauthorized debit payment mechanism.
5. EQUIPMENT
(a) The Merchant hereby agrees to: rent the Equipment for the price specified on the Application. (b) The refusal or inability whatsoever to accept delivery of Equipment by the Merchant or the failure to disclose any pertinent information that results in Zomaron reclaiming the Equipment will result in the Merchant being subject to a five hundred dollar ($500.00) restocking fee per piece of Equipment reclaimed by Zomaron. The Merchant hereby authorizes Zomaron to deduct any restocking fee owed directly from the Merchant’s bank account. This authorization by no means limits Zomaron to any method of collection for restocking fees owed. (c) The Merchant acknowledges that the Equipment may only be removed from the Merchant’s premises with prior written approval from Zomaron. Removal of the Equipment shall be at the sole cost of the Merchant. (d) The Merchant acknowledges that a fee of up to seven hundred and ninety eight dollars ($798.00) will be charged for any Equipment swapped for defect during the Term. (e) The Merchant acknowledges and agrees that the Equipment may become damaged or cause property damage, personal injury or death during any period of time that the Equipment is in the Merchant’s possession or under its control, including, if applicable, as a result of the Equipment not being affixed to a wall. The Merchant hereby agrees to indemnify Zomaron pursuant to Section 9(c) of this Agreement for any such claims of property damage, personal injury or death.
6. DATA
(a) The Merchant authorizes Zomaron to share any and all Merchant data with any third party for the purpose of enabling the provision of ancillary Services to the Merchant. (b) The Merchant further authorizes Zomaron to share any and all data obtained through the provision of the Services to the Merchant for the purposes of: (i) developing and providing value added services to the Merchant and other Zomaron and/or Payment Acquirer merchants; (ii) compensating referral, association, and/or value-added partners (“Partners”), where applicable; (iii) providing Merchant service and performance updates to Partners, where applicable; and (iv) for analysis, marketing and communications purposes.
7. MERCHANT RESPONSIBILITIES
(a) In addition to all other requirements and obligations set out in this Agreement, the Merchant shall: i. process transactions for only bona fide sales of goods and/or services; ii. adhere and comply with all laws or requirements of governmental and/or governing bodies; iii. be bound and abide by the Interac Client Terms and Conditions; iv. notify Zomaron in writing of any account adjustments relating to any debit and/or credit transactions within twenty (20) days of being processed; v. maintain and provide Zomaron access to a bank account at all times for the provision of debits and deposits in accordance with this Agreement; vi. take appropriate measures to prevent unauthorized use of the Equipment; vii. notify Zomaron immediately upon discovery of any loss of, damage to, or unauthorized use of the Equipment; ix. promptly report any errors, malfunctions, or any other problems with the equipment; x. permit Zomaron free and unrestricted access to the Merchant’s premises during normal business hours as required for site preparation, installation, investigation, and maintenance activities; xi. authorize Zomaron to identify the Merchant as a user of the Equipment and Services in marketing material relating directly to the Services and/or Equipment; xii. maintain appropriate reporting and operational processes; xiii. retain all transaction receipts for no less than one (1) year from the date of settlement; xiv. provide Zomaron with accurate, anonymized or complete employee work shift logs within twenty-four (24) hours of receiving the request; xv. provide Zomaron access to examine and verify at any reasonable time any and all records pertaining to transactions processed through the Equipment; xvi. aid in the remote diagnostics and servicing of the Equipment; and xvii. any other task required by Zomaron in order for the adequate provision of Services to the Merchant. (b) The Merchant shall also provide any receipts retained in accordance with 7(a)(xiii) to Zomaron upon request. Failing to provide said receipts may result in the reversal of payments processed and the amount reversed being charged directly to the Merchant.
8. FEEDBACK; MARKETING AND COMMUNICATIONS
Zomaron does not guarantee the confidentiality of any communications made by you to Zomaron or any other information transmitted by you to Zomaron, including communications made by email or any information transmitted in your use of the Services. We may retain a copy of any such communications for the purpose of, and to the extent necessary for us to comply with applicable legal, regulatory or internal backup requirements.
By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to Zomaron (“Feedback”) to Zomaron, you acknowledge that: (i) your Feedback does not contain confidential or proprietary information; (ii) Zomaron is not under any obligation of confidentiality, express or implied, with respect to the feedback; (iii) you grant Zomaron and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) you irrevocably waive your moral rights in and to such Feedback and assign to Zomaron all rights in and to your Feedback in perpetuity; (v) you are not entitled to any compensation or reimbursement of any kind from Zomaron under any circumstances; and (vi) you represent and warrant to Zomaron, and can demonstrate to Zomaron, upon request, that you have the rights to grant Zomaron the rights set out in (iii) above.
You specifically and expressly consent to Zomaron providing you with various communications, newsletters, correspondence, promotions and other documentation by email, text message or other forms of electronic communication and you hereby confirm that all such communication is accepted and in compliance with An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying Out Commercial Activities and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act S.C. 2010, c.23 (“CASL”) as amended or replaced from time to time.
9. INTELLECTUAL PROPERTY
During the Term, the Merchant hereby grants to Zomaron a limited, non-exclusive, non-assignable, non-transferable right and license, without the right to subslicense, to use the Merchant’s name and all verbal and written refences to that name and any logo of the Merchant (collectively, the “Materials”).
The Merchant represents and warrants that it has the right and authority to enter into this Agreement and to grant all of the rights contained herein, and that Zomaron’s use of the Materials will not violate or infringe upon the rights of any third parties.
Zomaron acknowledges that the Materials are and shall remain the sole and exclusive property of the Merchant, and the Licensee agrees that is has no right, title or interest in or to the Materials. The Merchant acknowledges that nothing in this Agreement requires Zomaron to use the Materials for any purpose or manner whatsoever
10. DISCLAIMERS; LIMITATION OF LIABILITY
(a) The Services are provided by Zomaron on an “as is” and “as available” basis and without warranties of any kind, express or implied. Zomaron disclaims all warranties, express or implied, including implied warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose and non-infringement. Zomaron does not warrant that the installation of the Equipment or the use of any of the Equipment or Zomaron’s Services will be uninterrupted, error-free or free of viruses or other harmful components. Zomaron may correct, modify, amend, enhance, improve and make any other changes to any Equipment or Services at any time, or discontinue providing any Equipment or Services at any time with or without notice to you. (b) In no event will Zomaron be liable for any indirect, incidental, special or consequential damages that result or arise from or are related to or in connection with the use of, or the inability to use any Equipment or Service, even if Zomaron has been advised of the possibility of such damages. Zomaron shall not be held liable for any damages, lost profits, lost revenues, lost opportunities, loss of goodwill, loss of brand or Merchant value, costs and/or expenses in any way relating to or arising out of this Agreement. This also includes losses suffered as a result of communication failures or disruptions, or the availability of technical support and you expressly hold Zomaron harmless from and against any and all claims, losses, liability, damages, injuries and expenses (including personal injury claims) arising out of or relating to your use of any Equipment or the Services, and any alleged or actual violation by you of this Agreement. (c) Merchant hereby expressly holds Zomaron and its officers, directors, employees, staff, insurers, Affiliates, subcontractors and representatives, and their respective officers, directors, employees, insurers, heirs successors and assigns, as applicable (the “Releasees”) of and from all manner of action, obligation, causes of action, suits, debts, accounts, bonds, covenants, contracts, claims and/or demands whatsoever (collectively, “Claims”) that may at any time be asserted against a Releasee arising out of or relating to: (i) Zomaron’s use of the Materials, including, without limitation, any Claims that Zomaron’s use of the Materials infringe any intellectual property rights; (ii) the Merchant’s use of the Services and/or the Equipment (iii) damage to the Equipment or any property damage, personal injury or death caused by an act or omission of the Merchant relating to the Equipment, however caused, including but not limited to securing the Equipment from tampering or falling, during any period of time which the Equipment is in the Merchant’s possession or under its control; and (iv) any alleged violation by the Merchant of these Terms and Conditions, and the Merchant agrees to indemnify the Releasees in respect of any costs or expenses (including reasonable legal fees) that the Merchant may incur in respect of any such Claims. Furthermore, the Merchant shall be liable for and shall indemnify the Releasees in respect of all loss, liability, claims, demands, damages, costs, charges, expenses and proceedings in respect of personal or bodily injury to or death of any person whatsoever or loss of or damage to any third party’s property arising out of any act or omission of the Merchant related to the Equipment during any period of time during which the Equipment is in the Merchant’s possession or under its control. (d) Zomaron shall not be held liable for any delay or default in the performance of our obligations in this Agreement as a result of any failure of electrical, communication, banking, or Payment Acquirer systems, acts of God, flood, fire, severe weather, strike, lockout, acts of war, governmental acts or restrictions, or emergency situations. (e) Except as expressly provided in these Terms and Conditions, and to the maximum extent permitted by applicable law in the Merchant’s jurisdiction, Zomaron will have no other obligation, duty or liability whatsoever in contract, tort or otherwise to you, including any liability for negligence or strict liability. The limitations, exclusions and disclaimers in these Terms and Conditions will apply: (i) irrespective of the nature of the cause of action, demand or action by you, including breach of contract, tort, negligence, strict liability or any other legal theory and will survive a fundamental breach, breach of a fundamental term or breaches or the failure of the essential purpose of these Terms and Conditions or of any remedy contained herein; and (ii) to Zomaron and its Affiliates, their successors, permitted assigns, agents, suppliers and each of their respective directors, officers, employees and contractors. (f) In no event will Zomaron’s aggregate liability based upon, arising from, in connection with or related to these Terms and Conditions, the Services or the Equipment exceed the Transaction Fees, if any, paid by the Merchant that gave rise to the claim, in the month in which the cause of action underlying such claim arose. This limitation applies for any and all forms of legal action brought against Zomaron and constitutes the Merchant’s exclusive remedy. (g) The Merchant acknowledges and agrees that the disclaimers, exclusions and limitations set forth herein constitute an essential element of these Terms and Conditions and that in the absence of such disclaimers, exclusions and limitations, the Transaction Fees and other terms in these Terms and Conditions would be substantially different. On addition to the limitations and exclusions set out above, in no event will any directors, officers, employees, agents, successors or assigns of Zomaron, or any distributors, suppliers, contractors, customers, vendors, partners or organizations that work with Zomaron in connection with the Services and/or the Equipment or their respective directors, officers, employees, agents, successors or assigns, or any Affiliates of Zomaron have any liability arising from or related to these Terms and Conditions, the Services or the Equipment.
11. DISCLAIMERS; LIMITATION OF LIABILITY
The Merchant shall indemnify and hold Zomaron harmless from and against any and all claims, suits, damages, losses, costs, expenses and fees incurred directly or indirectly by Zomaron as a result of the Merchant failing to utilize the Equipment or Services in accordance with this Agreement, and for any liability to third parties for any injuries or damages not resulting solely from the negligence or wilful misconduct of Zomaron, which results from the provision of Equipment or Services from Zomaron.
12. ASSIGNMENT
Neither party may assign or transfer all or any part of this Agreement or its rights or obligations under this Agreement to any other person without the prior written consent of the other party, and any purported assignment without such consent shall be null and void. Notwithstanding the foregoing, Zomaron may, without the Merchant’s prior written consent, assign any of Zomaron’s rights and/or obligations under this Agreement to any of its Affiliates, or the surviving corporation with or into which Zomaron merges or consolidates, or to an entity to which Zomaron transfers all, or substantially all, of its voting securities or assets.
13. TERMINATION
(a) Zomaron may terminate this Agreement or cease the provision of Services for any unit of Equipment at any time without notice if, (i) the Merchant fails to comply with any material terms of this Agreement; or (ii) Zomaron believes that the Merchant represents an unacceptable risk to the integrity of Zomaron and/or the Services. (b) The Merchant may terminate this Agreement at any time, however shall be subject to an early termination fee (the “ETF”) of two hundred and ninety-five dollars ($295) per unit of Equipment. (c) The Merchant will not be subject to an ETF if termination occurs within ninety (90) days following notification from Zomaron of, (i) a fee increase, (ii) an additional fee related to Interac Direct Payment transactions, and/or (iii) the reduction in applicable Interchange Rates. (d) This Agreement will automatically terminate and the Merchant will be subject to an ETF of two hundred and ninety-five dollars ($295) per unit of Equipment, if the Merchant fails to process any payment transaction using the Services and/or Equipment for ninety (90) consecutive days. Thereafter, the Merchant will be subject to a reconnection fee of two hundred and ninety-five dollars ($295) per unit of Equipment, should the Merchant wish to renew this Agreement. (e) Termination of this Agreement will not affect any other existing agreement Zomaron or any other party may have with the Merchant.
14. ENUREMENT
Neither party may assign or transfer all or any part of this Agreement or its rights or obligations under this Agreement to any other person without the prior written consent of the other party, and any purported assignment without such consent shall be null and void. Notwithstanding the foregoing, Zomaron may, without the Merchant’s prior written consent, assign any of Zomaron’s rights and/or obligations under this Agreement to any of its Affiliates, or the surviving corporation with or into which Zomaron merges or consolidates, or to an entity to which Zomaron transfers all, or substantially all, of its voting securities or assets.
15. AMENDEMENTS
No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings.
16. NOTICES
All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at Zomaron’s discretion) set forth in the Application and will be deemed to have been provided on the date which the notice was sent. All notices to Zomaron required or permitted under the Agreement will be provided via registered mail to:
Zomaron Inc.
3200 Wonderland Road South
London, Ontario
N6L 1A6
Attention: Compliance Officer
and will be deemed to have been given on the date of Zomaron’s receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiations or agreements. The headings used in this agreement are for convenience only and are not to be construed as defining, limiting or describing the scope or intent of this Agreement.
18. NO WAIVER; SEVERABILITY
(a) The failure of either party to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights. (b) If any provision of this agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law.
19. GOVERNING LAW; JURISDICTION; CLASS ACTION WAIVER
This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. Zomaron reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owned by the Merchant to Zomaron in connection with the Merchant’s use of the Services or Equipment or any portion thereof; or (ii) the Merchant’s actual or threatened violation of these Conditions of Use or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to these Terms of and Conditions or any of the Services or the Equipment. The Merchant agrees that, in the event that there is a dispute under these Terms and Conditions and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from these Terms and Conditions; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 18 is found to be unenforceable, the remainder of this Section 18 will still be given full force and effect.
20. CHANGES
Zomaron reserves the right at any time, and from time to time, to change these Terms and Conditions and to notify you of such change by posting the updated version of these Terms and Conditions on the Website. The Merchant acknowledges and agrees that it is responsible for regularly reviewing these Terms and Conditions, including by checking the date of the “Last Update” at the end of these Terms and Conditions. Continued use of any Services or Equipment after any such changes will constitute the Merchant’s consent to be bound by such changes, with continued provision of the use of the Services or Equipment, in whole or in part, constituting consideration from Zomaron to the Merchant for so being bound. The Merchant’s sole right with respect to any dissatisfaction with these Terms and Conditions, any policy or practice of Zomaron in operating, offering or providing the Services or the Equipment, is to stop using the Services and the Equipment.
21. SURVIVAL
The following provisions in these Terms and Conditions will survive any termination of these Terms and Conditions or the expiration or termination of the Agreement: Section 4(Fees and Surcharges), Section 7(xiv), Section 8 (Feedback; Marketing and Communications), Section 9 (Intellectual Property); Section 10 (Disclaimers; Limitation of Liability), Section 11 (Indemnification), Section 16 (Notices), Section 18 (No Waiver; Severability), Section 19 (Governing Law; Jurisdiction, Class Action Waiver), this Section 21, and Section 22 (Language).
22. LANGUAGE
It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Last Updated: June 12, 2018

GIVEPOINT CAMPAIGNS (DONORS) - TERMS AND CONDITIONS

Delivery, Returns, Exchanges, and Refunds Policy: The payment processed is a charitable donation. There are no deliveries, returns, exchanges, or refunds that apply to this payment.
Terms and Conditions: By choosing to donate to this campaign, charity, or non-profit organization (“Merchant”), you agree to be bound these terms and conditions and Zomaron’s Privacy Policy which can be found online at "www.zomaron.com/privacypolicy (“Privacy Policy”). You understand that the Privacy Policy attached to this page relates to Zomaron Inc. (“Zomaron”) only and the services provided by Zomaron. Please check with the Merchant for their Privacy Policy. If you do not agree to the following terms and conditions, please do not proceed with the donation. By submitting a donation using this online service, you agree to have your payment card charged with the selected amount in accordance with the terms and conditions of your payment card issuer. Moreover, you warrant and assert that you are authorized to make payments using the payment card entered. You agree to allow Zomaron to use the anonymized transactional data associated with this payment for developing and providing value added services to the Merchants and other Zomaron customers, and/or partners. You also agree to allow Zomaron, to retain information related to this transaction, including but not limited to any personal information, donation amount, and which campaign, charity, and/or non-profit the donation was made to (“Transaction Information”), for the purposes of administering Givepoint and its associated features. You hereby permit Zomaron. to provide the Merchant with the Transaction Information for administration, legal, and tacking purposes. Zomaron does not store or retain your payment card number for this transaction. Your payment card number will not be provided to the Merchant from this transaction. If you have any questions or concerns about these Terms and Conditions or Zomaron’s Privacy Policy, please email compliance@zomaron.com .
Last Updated: June 28, 2018

GIVEPOINT TERMS AND CONDITIONS

These are the terms and conditions (“Terms and Conditions”) of the Zomaron Pay Application (the “Application”) which is entered into by Zomaron Inc., its agent(s), partner(s), or other authorized representative(s) (collectively or individually “Zomaron”) and the merchant(s) (the “Merchant”) whose information appears on the Application. The Application, together with: (i) these Terms and Conditions; (ii) a summary of the complaints handling process, (iii) the Payment Acquirer terms of service or terms and conditions, as applicable; (iv) Zomaron Hub Terms of Service; (v) any other Payment Acquirer forms, agreements, guarantees, or other similar documents, as applicable; and (vi) all appendices, schedules, exhibits and addenda to the Application, whether such schedules, exhibits and/or addenda became effective on the same date that the aforementioned applications were executed by the Merchant or at a later date), collectively form the agreement (the “Agreement”) between Zomaron and the Merchant.
The Merchant intends on providing its customers with the option of purchasing its goods and/or services and has selected Zomaron to provide credit and debit payment processing and other services as mutually agreed to by the parties from time to time (collectively, the “Services”).
By accepting this Agreement, the Merchant agrees to be bound by all applicable provisions, including any amendments, restatements, supplements, or any other modification of this Agreement, and will ensure compliance of this Agreement by any and all persons associated with the Merchant, including but not limited to, partners, employees, contractors, agents, and/ or representatives. If you have any questions or concerns about these Terms and Conditions, please contact Zomaron by email at compliance@zomaron.com.
1. DEFINITIONS “Affiliate(s)” of any Person means, at the time such determination is made, any other Person, Controlling, Controlled by or under common Control with such first Person, in each case, whether directly or indirectly. “Equipment” means the hardware and/or software used to process payment transactions, including but not limited to devices requiring the input of a personal identification number, devices using near-field communication (NFC) to communication with the payment card, any kiosk hardware, virtual payment processing software, or any other similar device. “Payment Acquirer” means a bank or financial institution that processes credit or debit card payments for the Merchant. “Website” means the website located at the URL www.zomaron.com and all related webpages. 2. SERVICES CONDITIONAL The provision of the Services is conditional on the acceptance of the Merchant by Zomaron and/or a Payment Acquirer associated with Zomaron. 3. TERM This Agreement will be effective upon the date of acceptance and will continue for a term of one (1) year unless otherwise terminated in accordance with this Agreement (the “Initial Term”). Upon the expiry of the Initial Term, this Agreement will automatically renew on the terms and conditions contained in this Agreement for additional periods of one (1) month each (each, a “Renewal Term”) unless a party provides written notice of non-renewal to the other party no fewer than 30 days prior to the expiry of the Initial Term or then-current Renewal Term, as applicable. For certainty, in this Agreement, all references to the “Term” mean, collectively, the Initial Term and the Renewal Term (if any). 4. FEES AND SURCHARGES (a) Each transaction, including approved and declined transactions, key exchanges, totals, and settlements, will be subject to the transaction fees set out in the Application or as otherwise agreed upon by Zomaron and the Merchant (collectively, the “Transaction Fees”). (b) The Merchant acknowledges that a portion of the surcharges set out in the Givepoint Application are the property of Zomaron and shall be held in trust by the Merchant for Zomaron until such time that Zomaron recovers said surcharges. (c) The Merchant acknowledges that wireless fees set out in the Givepoint Application shall apply to all wireless Equipment. (d) If applicable, the application fee is a one-time, non-refundable amount set out in the Givepoint Application (“Application Fee”). The Application Fee shall be paid by the Merchant upon the submission of each Givepoint Application, regardless of application approval or denial. (e) The Merchant acknowledges that Zomaron reserves the right to charge administrative fees for and relating to the Services. Said administrative fees shall be forty-five dollars ($45.00) for any account maintenance, chargeback, or insufficient funds notices, and sixty-five cents ($0.65) for each touchtone or voice authorization. (f) Notwithstanding anything contained herein, the Merchant hereby irrevocably authorizes and directs Zomaron or any financial institution acting on behalf of Zomaron, to deduct any and all amounts, including but not limited to all surcharges, Transaction Fees, or any wireless, Equipment swap, restocking, administrative, cancellation, and reconnection fees, owed by the Merchant in accordance with this Agreement from the funds collected from processed transactions or directly from the Merchant’s bank account in accordance with the Preauthorized Debit Agreement attached hereto. This authorization in no way limits Zomaron to any method of collection for the recovery of monies owed. As agreed upon by Zomaron and the Merchant, Zomaron may bill the Merchant for any amount owing as a result of this Agreement. (g) If attempts by Zomaron, or any financial institution acting on behalf of Zomaron, to obtain monies from the Merchant’s bank account are refused or returned due to insufficient funds being available or otherwise, Zomaron reserves the right to charge the Merchant an administrative fee of forty-five dollars ($45.00) in addition to any and all outstanding amounts owed. (h) The Merchant acknowledges that any withdrawal from the Merchant’s bank account by Zomaron in accordance with this Agreement, is a pre-authorized debit for business purposes as defined under the Canadian Payment Association Rule H1. Therefore, the Merchant waives the right to receive advanced notice from Zomaron of any and all such pre-authorized debits. The Merchant hereby agrees to cooperate with Zomaron in establishing and maintaining this preauthorized debit payment mechanism. 5. EQUIPMENT (a) The Merchant hereby agrees to rent the Equipment for the price specified on the Givepoint Application. (b) The refusal or inability whatsoever to accept delivery of Equipment by the Merchant or the failure to disclose any pertinent information that results in Zomaron reclaiming the Equipment will result in the Merchant being subject to a five hundred dollar ($500.00) restocking fee per Equipment reclaimed by Zomaron. The Merchant hereby authorizes Zomaron to deduct any restocking fee owed directly from the Merchant’s bank account. This authorization by no means limits Zomaron to any method of collection for restocking fees owed. (c) The Merchant acknowledges that the Equipment may only be removed from the Merchant’s premises with prior written approval from Zomaron. Removal of the Equipment shall be at the sole cost of the Merchant if removal occurs at any time after the first ninety (90) days in the Term but before the first anniversary date in the Term. (d) The Merchant acknowledges that a fee of up to seven hundred and ninety eight dollars ($798.00) will be charged for any Equipment swapped for defect during the Term. (e) The Merchant acknowledges and agrees that the Equipment may become damaged or cause property damage, personal injury or death during any period of time that the Equipment is in the Merchant’s possession or under its control, including, if applicable, as a result of the Equipment not being affixed to a wall. The Merchant hereby agrees to indemnify Zomaron pursuant to Section 10(c) of this Agreement for any such claims of property damage, personal injury or death. 6. DATA (a) The Merchant authorizes Zomaron to share any and all Merchant data with any third party for the purpose of enabling the provision of ancillary Services to the Merchant. (b) The Merchant further authorizes Zomaron to share any and all data obtained through the provision of the Services to the Merchant for the purposes of: (i) developing and providing value added services to the Merchant and other Zomaron and/or Payment Acquirer merchants; (ii) compensating referral, association, and/or value-added partners (“Partners”), where applicable; (iii) providing Merchant service and performance updates to Partners, where applicable; and (iv) for analysis, marketing and communications purposes. 7. MERCHANT RESPONSIBILITIES (a) provide Zomaron with the Materials (as defined in Section 9, herein) within 1 week of the Application being approved; i. process transactions for only bona fide sales of goods and/or services, or donations in the case of non-profits and registered charities; ii. adhere and comply with all laws or requirements of governmental and/or governing bodies; iii. be bound and abide by the Interac Client Terms and Conditions; iv. notify Zomaron in writing of any account adjustments relating to any debit and/or credit transactions within twenty (20) days of being processed; v. maintain and provide Zomaron access to a bank account at all times for the provision of debits and deposits in accordance with this Agreement; vi. take appropriate measures to prevent unauthorized use of the Equipment; vii. notify Zomaron immediately upon discovery of any loss of, damage to, or unauthorized use of the Equipment; viii. maintain the Equipment in a state of good working order; ix. promptly report any errors, malfunctions, or any other problems with the equipment; x. permit Zomaron free and unrestricted access to the Merchant’s premises during normal business hours as required for site preparation, installation, investigation, and maintenance activities; xi. authorize Zomaron to identify the Merchant as a user of the Equipment and Services in marketing material relating directly to the Services and/or Equipment; xii. maintain appropriate reporting and operational processes; xiii. retain all transaction receipts for no less than one (1) year from the date of settlement; xiv. provide Zomaron with accurate, anonymized or complete employee work shift logs within twenty-four (24) hours of receiving the request; xv. provide Zomaron access to examine and verify at any reasonable time any and all records pertaining to transactions processed through the Equipment; xvi. aid in the remote diagnostics and servicing of the Equipment; and xvii. any other task required by Zomaron in order for the adequate provision of Services to the Merchant. (b) The Merchant shall also provide any receipts retained in accordance with 7(a)(xiv) to Zomaron upon request. Failing to provide said receipts may result in the reversal of payments processed and the amount reversed being charged directly to the Merchant. 8. FEEDBACK; MARKETING AND COMMUNICATIONS Zomaron does not guarantee the confidentiality of any communications made by you to Zomaron or any other information transmitted by you to Zomaron, including communications made by email or any information transmitted in your use of the Services. We may retain a copy of any such communications for the purpose of, and to the extent necessary for us to comply with applicable legal, regulatory or internal backup requirements. By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to Zomaron (“Feedback”) to Zomaron, you acknowledge that: (i) your Feedback does not contain confidential or proprietary information; (ii) Zomaron is not under any obligation of confidentiality, express or implied, with respect to the feedback; (iii) you grant Zomaron and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) you irrevocably waive your moral rights in and to such Feedback and assign to Zomaron all rights in and to your Feedback in perpetuity; (v) you are not entitled to any compensation or reimbursement of any kind from Zomaron under any circumstances; and (vi) you represent and warrant to Zomaron, and can demonstrate to Zomaron, upon request, that you have the rights to grant Zomaron the rights set out in (iii) above. You specifically and expressly consent to Zomaron providing you with various communications, newsletters, correspondence, promotions and other documentation by email, text message or other forms of electronic communication and you hereby confirm that all such communication is accepted and in compliance with An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying Out Commercial Activities and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act S.C. 2010, c.23 (“CASL”) as amended or replaced from time to time. 9. INTELLECTUAL PROPERTY During the Term, the Merchant hereby grants to Zomaron a limited, non-exclusive, non-assignable, non-transferable right and license, without the right to subslicense, to use the Merchant’s name and all verbal and written refences to that name and any logo of the Merchant (collectively, the “Materials”). The Merchant represents and warrants that it has the right and authority to enter into this Agreement and to grant all of the rights contained herein, and that Zomaron’s use of the Materials will not violate or infringe upon the rights of any third parties. Zomaron acknowledges that the Materials are and shall remain the sole and exclusive property of the Merchant, and the Licensee agrees that is has no right, title or interest in or to the Materials. The Merchant acknowledges that nothing in this Agreement requires Zomaron to use the Materials for any purpose or manner whatsoever. 10. DISCLAIMERS; LIMITATION OF LIABILITY (a) The Services are provided by Zomaron on an “as is” and “as available” basis and without warranties of any kind, express or implied. Zomaron disclaims all warranties, express or implied, including implied warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose and non-infringement. Zomaron does not warrant that the installation of the Equipment or the use of any of the Equipment or Zomaron’s Services will be uninterrupted, error-free or free of viruses or other harmful components. Zomaron may correct, modify, amend, enhance, improve and make any other changes to any Equipment or Services at any time, or discontinue providing any Equipment or Services at any time with or without notice to you. (b) In no event will Zomaron be liable for any indirect, incidental, special or consequential damages that result or arise from or are related to or in connection with the use of, or the inability to use any Equipment or Service, even if Zomaron has been advised of the possibility of such damages. Zomaron shall not be held liable for any damages, lost profits, lost revenues, lost opportunities, loss of goodwill, loss of brand or Merchant value, costs and/or expenses in any way relating to or arising out of this Agreement. This also includes losses suffered as a result of communication failures or disruptions, or the availability of technical support and you expressly hold Zomaron harmless from and against any and all claims, losses, liability, damages, injuries and expenses (including personal injury claims) arising out of or relating to your use of any Equipment or the Services, and any alleged or actual violation by you of this Agreement. (c) The Merchant hereby expressly holds Zomaron and its officers, directors, employees, staff, insurers, Affiliates, subcontractors and representatives, and their respective officers, directors, employees, insurers, heirs successors and assigns, as applicable (the “Releasees”) of and from all manner of action, obligation, causes of action, suits, debts, accounts, bonds, covenants, contracts, claims and/or demands whatsoever (collectively, “Claims”) that may at any time be asserted against a Releasee arising out of or relating to: (i) Zomaron’s use of the Materials, including, without limitation, any Claims that Zomaron’s use of the Materials infringe any intellectual property rights; (ii) the Merchant’s use of the Services and/or the Equipment (iii) damage to the Equipment or any property damage, personal injury or death caused by an act or omission of the Merchant relating to the Equipment, however caused, including but not limited to securing the Equipment from tampering or falling, during any period of time which the Equipment is in the Merchant’s possession or under its control; and (iv) any alleged violation by the Merchant of these Terms and Conditions, and the Merchant agrees to indemnify the Releasees in respect of any costs or expenses (including reasonable legal fees) that the Merchant may incur in respect of any such Claims. Furthermore, the Merchant shall be liable for and shall indemnify the Releasees in respect of all loss, liability, claims, demands, damages, costs, charges, expenses and proceedings in respect of personal or bodily injury to or death of any person whatsoever or loss of or damage to any third party’s property arising out of any act or omission of the Merchant related to the Equipment during any period of time during which the Equipment is in the Merchant’s possession or under its control. (d) Zomaron shall not be held liable for any delay or default in the performance of our obligations in this Agreement as a result of any failure of electrical, communication, banking, or Payment Acquirer systems, acts of God, flood, fire, severe weather, strike, lockout, acts of war, governmental acts or restrictions, or emergency situations. (e) Except as expressly provided in these Terms and Conditions, and to the maximum extent permitted by applicable law in the Merchant’s jurisdiction, Zomaron will have no other obligation, duty or liability whatsoever in contract, tort or otherwise to you, including any liability for negligence or strict liability. The limitations, exclusions and disclaimers in these Terms and Conditions will apply: (i) irrespective of the nature of the cause of action, demand or action by you, including breach of contract, tort, negligence, strict liability or any other legal theory and will survive a fundamental breach, breach of a fundamental term or breaches or the failure of the essential purpose of these Terms and Conditions or of any remedy contained herein; and (ii) to Zomaron and its Affiliates, their successors, permitted assigns, agents, suppliers and each of their respective directors, officers, employees and contractors. (f) In no event will Zomaron’s aggregate liability based upon, arising from, in connection with or related to these Terms and Conditions, the Services or the Equipment exceed the Transaction Fees, if any, paid by the Merchant that gave rise to the claim, in the month in which the cause of action underlying such claim arose. This limitation applies for any and all forms of legal action brought against Zomaron and constitutes the Merchant’s exclusive remedy. (g) The Merchant acknowledges and agrees that the disclaimers, exclusions and limitations set forth herein constitute an essential element of these Terms and Conditions and that in the absence of such disclaimers, exclusions and limitations, the Transaction Fees and other terms in these Terms and Conditions would be substantially different. In addition to the limitations and exclusions set out above, in no event will any directors, officers, employees, agents, successors or assigns of Zomaron, or any distributors, suppliers, contractors, customers, vendors, partners or organizations that work with Zomaron in connection with the Services and/or the Equipment or their respective directors, officers, employees, agents, successors or assigns, or any Affiliates of Zomaron have any liability arising from or related to these Terms and Conditions, the Services or the Equipment. 11. INDEMNIFICATION The Merchant shall indemnify and hold Zomaron harmless from and against any and all claims, suits, damages, losses, costs, expenses and fees incurred directly or indirectly by Zomaron as a result of the Merchant failing to utilize the Equipment or Services in accordance with this Agreement, and for any liability to third parties for any injuries or damages not resulting solely from the negligence or wilful misconduct of Zomaron, which results from the provision of Equipment or Services from Zomaron. 12. ASSIGNMENT Neither party may assign or transfer all or any part of this Agreement or its rights or obligations under this Agreement to any other person without the prior written consent of the other party, and any purported assignment without such consent shall be null and void. Notwithstanding the foregoing, Zomaron may, without the Merchant’s prior written consent, assign any of Zomaron’s rights and/or obligations under this Agreement to any of its Affiliates, or the surviving corporation with or into which Zomaron merges or consolidates, or to an entity to which Zomaron transfers all, or substantially all, of its voting securities or assets. 13. TERMINATION (a) Zomaron may terminate this Agreement or cease the provision of Services for any unit of Equipment at any time without notice if, (i) the Merchant fails to comply with any material terms of this Agreement; or (ii) Zomaron believes that the Merchant represents an unacceptable risk to the integrity of Zomaron and/or the Services. (b) Subject to 13(c), the Merchant may terminate this Agreement at any time with thirty (30) days advance written notice to Zomaron, however shall be subject to an early termination fee (the “ETF”) of two hundred and ninety-five dollars ($295) per unit of Equipment. (c) The Merchant will not be subject to an ETF if termination occurs within ninety (90) days following notification from Zomaron of, (i) a fee increase, (ii) an additional fee related to Interac Direct Payment transactions, and/or (iii) the reduction in applicable Interchange Rates. (d) This Agreement will automatically terminate and the Merchant will be subject to an ETF of two hundred and ninety-five dollars ($295) per unit of Equipment, if the Merchant fails to process any payment transaction using the Services and/or Equipment for ninety (90) consecutive days. Thereafter, the Merchant will be subject to a reconnection fee of two hundred and ninety-five dollars ($295) per unit of Equipment, should the Merchant wish to renew this Agreement. (e) Termination of this Agreement will not affect any other existing agreement Zomaron or any other party may have with the Merchant. 14. ENUREMENT This Agreement is binding upon the parties hereto and their respective heirs, executors, administrators, legal and/or personal representatives, successors, and assigns. 15. AMENDMENTS No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings. 16. NOTICES All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at Zomaron’s discretion) set forth in the Application and will be deemed to have been provided on the date which the notice was sent. All notices to Zomaron required or permitted under the Agreement will be provided via registered mail to: Zomaron Inc.
3200 Wonderland Road South London,
Ontario
N6L 1A6
Attention: Corporate Counsel
and will be deemed to have been given on the date of Zomaron’s receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes. 17. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiations or agreements. The headings used in this agreement are for convenience only and are not to be construed as defining, limiting or describing the scope or intent of this Agreement. 18. NO WAIVER; SEVERABILITY No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings. (a) The failure of either party to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights. (b) If any provision of this agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law. 19. GOVERNING LAW; JURISDICTION; CLASS ACTION WAIVER This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. Zomaron reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owned by the Merchant to Zomaron in connection with the Merchant’s use of the Services or Equipment or any portion thereof; or (ii) the Merchant’s actual or threatened violation of these Conditions of Use or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to these Terms of and Conditions or any of the Services or the Equipment. The Merchant agrees that, in the event that there is a dispute under these Terms and Conditions and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from these Terms and Conditions; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 18 is found to be unenforceable, the remainder of this Section 18 will still be given full force and effect. 20. CHANGES Zomaron reserves the right at any time, and from time to time, to change these Terms and Conditions and to notify you of such change by posting the updated version of these Terms and Conditions on the Website. The Merchant acknowledges and agrees that it is responsible for regularly reviewing these Terms and Conditions, including by checking the date of the “Last Update” at the end of these Terms and Conditions. Continued use of any Services or Equipment after any such changes will constitute the Merchant’s consent to be bound by such changes, with continued provision of the use of the Services or Equipment, in whole or in part, constituting consideration from Zomaron to the Merchant for so being bound. The Merchant’s sole right with respect to any dissatisfaction with these Terms and Conditions, any policy or practice of Zomaron in operating, offering or providing the Services or the Equipment, is to stop using the Services and the Equipment. 21. SURVIVAL The following provisions in these Terms and Conditions will survive any termination of these Terms and Conditions or the expiration or termination of the Agreement: Section 4(Fees and Surcharges), Section 8 (Feedback; Marketing and Communications), Section 9 (Intellectual Property) Section 10 (Disclaimers; Limitation of Liability), Section 11 (Indemnification), Section 16 (Notices), Section 17 (Entire Agreement) Section 18 (No Waiver; Severability), Section 19 (Governing Law; Jurisdiction, Class Action Waiver), this Section 21, and Section 22 (Language). 22. LANGUAGE It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.