THIS PAYMENTEVOLUTION USER AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF PAYMENTEVOLUTION SERVICES.
IF YOU RECIEVE SUBSCRIPTION SERVICES FROM US, YOUR ONGOING USE OF THOSE SERVICES WILL BE GOVERNED BY OUR SUBSCRIPTION AGREEMENT AND YOU HEREBY AGREE TO SUCH SUBSCRIPTION AGREEMENT.
ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR SERVICES.
You may not access the PaymentEvolution services if you are our direct competitor (as deemed by PaymentEvolution), except with our prior written consent. In addition, You may not access our services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 9, 2012. It is effective between you and PaymentEvolution Corporation as of the date of your acceptance of this Agreement
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"PaymentEvolution Services" means the online, Web-based financial services provided by Us as described in this Agreement and the User Guide, that You order through http://www.paymentevolution.com or under an Order Form.
"Order Form" means any ordering documents for Your subscriptions to the PaymentEvolution services, including addenda thereto, that are entered into between You and Us. Order Forms include any pages on http://www.paymentevolution.com through which You registered for the PaymentEvolution Services. Order Forms shall be deemed incorporated herein by reference.
"Third-Party Application" means a web application that is provided by a third party and interoperates with the PaymentEvolution services.
"User Guide" means the online user guide for the PaymentEvolution services, accessible via http://www.paymentevolution.com, as updated from time to time.
"Users" means individuals who are authorized by You to use the PaymentEvolution service, for whom subscriptions to the PaymentEvolution service have been acquired pursuant to this Agreement, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," " Us" or " Our" means PaymentEvolution Corporation (PaymentEvolution) a Canadian corporation with a principal place of business at 2601 Matheson Blvd East, Suite 12, Mississauga, Ontario, Canada L4W5A8.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Application” means a web application that You (or a third party acting on Your behalf) create and that interoperates with the PaymentEvolution service.
"Your Data" means all electronic data or other information submitted by You to the PaymentEvolution service.
- Provision and use of PaymentEvolution service
- Provision of PaymentEvolution service for 5 Users. We shall make 5 User subscriptions of the PaymentEvolution service available to You pursuant to this Agreement and relevant Order Forms. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the PaymentEvolution service.
- Administration User. Your 5 PaymentEvolution service User subscriptions include one administration User subscription. The administration User subscription may be used solely to administer the PaymentEvolution service.
- Limit of One 5-User PaymentEvolution service subscription. You and Your Affiliates collectively shall not subscribe to more than one 5-User PaymentEvolution service subscription at a time.
- Violation of Administration User Restrictions. You understand that the limitations in section 2.2 (Administration User), and 2.3 (Limit of One 5-User PaymentEvolution service Subscription) are contractual in nature (i.e., the administration user functionality, and the number of 5-User PaymentEvolution service subscriptions are not limited as a technical matter in the PaymentEvolution service). You therefore agree to strictly monitor Your Users' use of the PaymentEvolution service subscriptions and enforce the administration User restrictions, and the limitation to one 5-User PaymentEvolution service subscription. We may audit Your use of the PaymentEvolution service subscriptions at any time through the PaymentEvolution service. Should any audit reveal any use of PaymentEvolution service subscriptions in violation of the administration User restrictions, You agree You will purchase, within five (5) business days of notice of the audit results, a full, annual User subscription at our then-current list price. Should any audit reveal any use of PaymentEvolution service subscriptions in violation of the limitation to one 5-User PaymentEvolution service subscription, You agree You will purchase, within five (5) business days of notice of the audit results, a full, annual PaymentEvolution service subscription at our then-current list price for each unauthorized PaymentEvolution service subscription.
- PaymentEvolution Sites. Your PaymentEvolution service subscriptions may include Our other PaymentEvolution services. Any use of the PaymentEvolution service Sites is subject to this same agreement
- Other Usage Limitations. The PaymentEvolution service may be subject to other limitations, such as, for example, limits on the total number of users (250), limits on disk storage space, and on the number of calls You are permitted to make against Our application programming interface. Any such limitations are at the sole discretion of Us.
- Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which You acquired, Your Data and Your Applications, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the PaymentEvolution service, and notify Us promptly of any such unauthorized access or use, and (iv) use the PaymentEvolution service only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the PaymentEvolution service available to anyone other than Users, (b) sell, resell, rent or lease the PaymentEvolution service, (c) use the PaymentEvolution service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the PaymentEvolution service to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the PaymentEvolution service or third-party data contained therein, or (f) attempt to gain unauthorized access to the PaymentEvolution service or Our systems or networks
- Third-Party Providers
- Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the PaymentEvolution service.
- Third-Party Applications and Your Data. If You install or enable a Third-Party Application for use with the PaymentEvolution service, You acknowledge that We may allow the provider of that Third-Party Application to access Your Data as required for the interoperation of such Third-Party Application with the PaymentEvolution service. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by a Third-Party Application provider.
- Third-Party Programs. This service uses third-party programs. The license terms with those programs apply to your use of them. The PaymentEvolution service features that interoperate with third-party services depend on the continuing availability of those services. If these third-party providers cease to make the their services available on reasonable terms for the PaymentEvolution services, we may cease providing such PaymentEvolution service features without entitling You to any refund, credit, or other compensation.
Third party code or services used:
||CC BY 3.0
||SIL Open 1.1
- No fees
The PaymentEvolution 5-User subscription service is currently provided at no charge. We reserve the right to change our pricing policies for the PaymentEvolution service at any time on 30 days’ notice given in accordance with Section 11.1 (Notices).
- Our License to You.
- We grant you a worldwide license during the term of this Agreement to use the PaymentEvolution service to (i) process your own financial transactions, and (ii) operate Third-Party Applications as prescribed by us.
- You shall not (i) permit any third party to access the PaymentEvolution service except as permitted herein or in an Order Form, (ii) create derivate works based on the PaymentEvolution service, (iii) copy, frame or mirror any part or content of the PaymentEvolution service, (iv) reverse engineer the PaymentEvolution service, or (v) access the PaymentEvolution service in order to build a competitive product or service or to copy any features, functions or graphics of the PaymentEvolution service.
- Your License to Us.
- You grant us a worldwide license to use, reproduce, transmit, display and adapt Your data solely as necessary for Us to provide the PaymentEvolution service in accordance with this Agreement.
- You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of our services.
- Federal and Provincial Government Use Provisions. The PaymentEvolution service is not meant to replace any federal or provincial government service and is not licensed for use by federal or provincial authorities unless written consent by Us is provided.
- Proprietary Rights
- Our Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the PaymentEvolution service, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
- Your Proprietary Rights. Except as provided in Section 5.2 (Your License to Us), We acknowledge and agree that We obtain no right, title or interest from You (or your licensors) under this Agreement in or to Your Data, any of Your Applications, or any source code You (or a third party acting on Your behalf) create using the PaymentEvolution service, including any intellectual property rights subsisting therein.
- Exclusion of Warranties
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE PAYMENTEVOLUTION SERVICE WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE PAYMENTEVOLUTION SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
You shall defend Us against any claim, demand, suit, or proceeding ("Claim") made or brought against Us by a third party alleging that Your Data, Your Applications or other materials developed by You (or by a third party on Your behalf) using the PaymentEvolution service infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the PaymentEvolution service), and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
- Limitation of Liability
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Term and termination
- Term. This Agreement commences on the date You accept it and continues until terminated in accordance with Section 10.2 (Termination).
- Termination. You may terminate Your PaymentEvolution service without cause at any time upon written notice to Us. We may terminate Your PaymentEvolution service (a) at any time without cause upon 60 days’ written notice to You, or (b) upon 7 days’ written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Upon any termination of Your PaymentEvolution service, this Agreement shall also terminate, subject to Section 10.5 (Surviving Provisions).
- Return of Your Data. Upon request by You made within 30 days after the effective date of termination of Your PaymentEvolution service, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
- LOSS OF APPLICATIONS AND MATERIALS. UPON ANY TERMINATION OF YOUR PAYMENTEVOLUTION SERVICE, ACCESS TO YOUR INFORMATION, APPLICATIONS, AND OTHER MATERIALS DEVELOPED BY YOU USING THE PAYMENTEVOLUTION SERVICE WILL BE LOST. In accordance with federal, provincial and territorial employment standards, we may retain all payroll history for your account. You may request permanent deletion of this data by sending a notorized letter from your company officer to PERMANENT DELETION REQUEST, PaymentEvolution, 12-2601 Matheson Blvd East, Mississauga, ON L4W5A8 Canada. You must state that you accept all liability for compliance with applicable employment standards and data rentention with regards to your payroll.
- Surviving Provisions. Sections 6 (Proprietary Rights), 7 (Exclusion of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Return of Your Data), 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
- Notices, Governing law, Venue, and Waiver of Jury Trial
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of PaymentEvolution Corporation 2601 Matheson Blvd East, Suite 12, Mississauga, Ontario, Canada L4W5A8, Attention: OPERATIONS. Notices to You shall be addressed to the system administrator designated by You for Your relevant PaymentEvolution service account, and in the case of billing-related notices, to the relevant billing contact designated by You.
- Governing law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the Province of Ontario and controlling Canadian federal law, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
- Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- Changes to terms
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the Terms available on this web page. You understand and agree that if you use the PaymentEvolution service after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.
- General provisions
- Export compliance. Each party shall comply with the export laws and regulations of the Canada and other applicable jurisdictions in providing and using the PaymentEvolution service. Without limiting the foregoing, (a) each party represents that it is not named on any Canadian government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use the PaymentEvolution service in violation of any Canadian export embargo, prohibition or restriction.
- Relationship of the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in their entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Updated September 20, 2012