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Ratio Payments Terms of Service
Last Updated: Wednesday, August 10, 2022
This Ratio Pay Terms of Service (the "Terms of Service", together with any Order Forms, all as amended from time to time the "Agreement") form an agreement between the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services (such customer, the “Customer”) and Base Financial Technology Incorporated (doing business as Ratio Pay (“Ratio Pay"), and is entered into on the earlier of the date Customer first uses any part of the Services and the date Customer agrees to be bound by this Agreement (the "Effective Date"). Each of Ratio Pay and Customer will individually be referred to as a "Party" and jointly as the "Parties".
By using any Services (including the Website), or using any Free Trial and authorizing or permitting any Permitted User, including any Third Party, to access or use the Services or Website, Customer agrees to the terms of this Agreement, acknowledges that Customer has read, accepts and agrees to be bound by and comply with the terms and conditions set out in this Agreement, as amended from time to time in accordance with section 13(k). If Customer does not accept and agree to be bound by this Agreement, Customer will immediately cease any further use of the Services. Customer represents and warrants to Ratio Pay that Customer has the capacity to enter into this legally binding agreement. If Customer is using the Services on behalf of another Person or Persons, Customer hereby represents and warrants to Ratio Pay that Customer has the authority to bind each such Person to this Agreement, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.
If Customer registers for a Free Trial of Services, the applicable provisions of this Agreement will also govern that Free Trial.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Ratio Pay's direct competitors are prohibited from accessing the Services, except with Ratio Pay's prior written consent.
1. Definitions
(a) “Applicable Law” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
(b) “Content” means information obtained by Ratio Pay from publicly available sources or its third party content providers and made available to Customer through the Services, or pursuant to an Order Form, as more fully described in the Documentation.
(c) "Customer Data" means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Services, including but not limited to Personal Information and User Content. The term “Customer Data” does not include any Aggregated Data and any other Ratio Pay Property.
(d) “Customer Funding” means Customer’s payment information selected and verified by the Permitted User related to any inbound or outbound Payment.
(e) “Documentation” means any applicable guides and policies, as updated from time to time, accessible via Website or login to the Services.
(f) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Ratio Pay, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of, and other entities created by, such entities.
(g) “Invoices” means any invoice for products or services provided to or by Customer.
(h) "Loss" or "Losses" means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(i) "Modifications" means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and "Modify" has a corresponding meaning.
(j) “Non-Ratio Pay Application” any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.
(k) "Order Form" means an order form that references these Terms of Service and that is executed by both Parties or otherwise accepted by Customer.
(l) “Payments” means a payment to or from one Person to another Person, verified by Customer and/or its Permitted User, using Ratio Pay.
(m) “Payment Method” means any payment method selected by Customer including but not limited to via indirect EFT with Customer Funding by pre-authorized debit.
(n) "Person" means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
(o) "Personal Information" means information about an identifiable individual.
(p) “Permitted User” means all individuals who are employees or contractors of Customer or any other Person that Customer has given access to and use of the Services via a Permitted User Credential.
(q) “Services” means Ratio Pay Services, other products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer under a Free Trial or otherwise and made available via the Website by Ratio Pay and any part thereof. “Services” excludes Content and Non-Ratio Pay Applications.
(r) “Ratio Pay Services” means services through which Ratio Pay makes available its proprietary application for Customers to make or receive Payments of Invoices.
(s) “Third Party” means any Person whom Customer can make Payments to or receive Payments from.
(t) "Website" means any websites used by Ratio Pay to provide the Services, including the websites located at www.ratiopayments.com and app.ratiopayments.com.
2. Services
(a) Provisioning of the Services. Subject to Customer's and its Permitted Users' compliance with the terms and conditions of this Agreement, Ratio Pay will make the Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Permitted Users and for ensuring that only Permitted Users’ access and use the Services. Customer shall ensure that all Permitted Users are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Ratio Pay’s rights and Ratio Pay Property than those set forth in this Agreement.
(b) Restrictions on Use. Customer will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the Services or any intellectual property rights therein, or otherwise make the Services available to others other than Permitted Users;
(ii) use the Services to permit timesharing, service bureau use or commercially exploit the Services;
(iii) use or access the Services:
(A) in violation of any Applicable Law;
(B) in a manner that threatens the security or functionality of the Services;
(C) directly via the ‘back end’ server; or
(D) for any purpose or in any manner not expressly permitted in this Agreement;
(iv) use the Services to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(v) Modify the Services;
(vi) reverse engineer, decompile or disassemble the Services;
(vii) remove or obscure any proprietary notices or labels on the Services, including brand, copyright, trademark and patent or patent pending notices;
(viii) attempt to obtain any materials or information through any means not intentionally made available through the Services;
(ix) attempt to gain unauthorized access to the Services, other Permitted User Credentials, or computer systems or networks connected to any Ratio Pay server or to the Services, through hacking, password mining or any other means;
(x) access or use the Services for the purpose of building a similar or competitive product or service; or
(xi) perform any vulnerability, penetration or similar testing of the Services.
(c) Minimum System Requirements. In order to use the Services, Customer’s equipment and software must meet the minimum system requirements communicated by Ratio Pay to Customer, which will be subject to changes and updates over time.
(d) Payments.
(i) By accessing and using the Ratio Pay Services, Customer authorizes Ratio Pay to provide the Ratio Pay Services and process Payments to or from Third Parties. In connection with such Payments, Customer shall provide Ratio Pay with all necessary Customer Funding, including (i) payment information required by Ratio Pay in order to process the Payment; (ii) additional information necessary to comply with Applicable Law; and (iii) any and all corrections or updates to the foregoing. The accuracy of the Customer Funding shall be Customer’s sole responsibility and Ratio Pay shall have no liability or obligation arising out of incorrect or incomplete Customer Funding. Customer is responsible for any errors or mistakes in its Customer Funding and any Payment. Customer shall verify all Customer Funding and Payments even if Ratio Pay makes suggestions on payment information or other information to Customer or Permitted Users. Ratio Pay will consider any access to the Ratio Pay Services and instructions received through the Ratio Pay Services to be authorized by Customer and be binding upon Customer.
(ii) In the event: (A) that Customer’s bank incorrectly deducts a Payment from Customer’s account howsoever arising including but not limited to any misunderstanding or error or mistake made by Customer; or (B) if a Third Party disputes a Payment, Customer shall be responsible for such circumstances and shall immediately reimburse Ratio Pay any amounts and Losses incurred by Ratio Pay related to such Payment. In accepting appointment as Customer’s service provider for processing Payments, Ratio Pay assumes no liability for any of Customer or its Permitted Users’ acts or omissions or for any incorrect information, Customer Funding or Payment provided by and verified by Customer.
(iii) In the event that any Payment or other amounts are unsuccessfully debited from Customer’s bank account or, in the case of a payment request, from the payor’s bank account, charged back or otherwise not paid to Ratio Pay, Customer agrees to immediately reimburse Ratio Pay for any fees or other amounts charged to Ratio Pay by its financial institution as a result of the unsuccessful Payment, and to pay Ratio Pay an additional fee of $45.
(iv) When Customer or its Permitted User initiates a Payment through the Ratio Pay Services, Customer authorizes Ratio Pay to: (A) disclose Customer’s Customer Funding or Customer Data to third parties so Ratio Pay can complete the Payment; (B) charge or pay the Customer’s Payment Method for the amount of the Payment that Customer or its Permitted Users has indicated; and (iii) process the Payment.
(v) Ratio Pay uses commercially reasonable efforts to process Payments promptly but makes no guarantees, representations or warranties regarding when a Payment will be processed. Customer acknowledges that payment timing may be impacted by factors outside of Ratio Pay’s control including but not limited to the processing times of the financial institutions involved. Ratio Pay will not be liable for any fees, penalties, or late payment interest charged to Customer or to be charged by Customer as a result of a delay in Payment.
(vi) Ratio Pay will not be liable for any failure in completing any Payment for any reason not directly attributable to gross negligence on the part of a Ratio Pay employee or Ratio Pay’s breach of the terms of this Agreement.
(vii) All Payments are non-refundable and non-transferable except as expressly provided in this Agreement.
(viii) Ratio Pay is not a party to any relationship between Customer, any Third Party or any other Person, or in the delivery or completion of underlying contractual obligations. In the event that Customer has a dispute with any Third Party or other Person, Customer shall address such dispute directly with such Third Party or other Person directly. Ratio Pay has no liability to Customer in any respect whatsoever for any acts or omissions of any Person (including without limitation any breach by any Person of any Applicable Laws, negligence, fraud, recklessness, wilful misconduct or more culpable act or omission) related to any Payments, Services or in any way connected with this Agreement.
(ix) Ratio Pay reserves the right to refuse to process any Payment or to impose limitations on the size, frequency, and time frame of Payments at Ratio Pay’s sole discretion in order to ensure compliance with Applicable Laws or to mitigate risk.
(x) Ratio Pay by default, processes domestic Payments in Canadian funds, and may in future, upon notice, hold, review or charge reasonable additional fees for foreign currency and international payments.
(e) Pre Authorised Payment Method.
(A) If Customer elects to provide Customer Funding and make or request a Payment using a pre-authorized debit, Customer will be required to enter into Ratio Pay’s then-current pre-authorized debit agreement (the “PAD Agreement”). Customer understands and acknowledges that any pre-authorized debit transaction for a Customer Funding is charged by Ratio Pay as the intermediary facilitating Payment, and not as agent of customer of otherwise for any good or services to be delivered or received by such Customer.
(B) To the maximum extent permitted by Applicable Law, in the event that a pre-authorized debit for a Customer Funding is rejected for any reason or is incorrect or inaccurate after Ratio Pay has made Payment on behalf of Customer pursuant to Customer’s instructions, Customer will be fully liable for the amount paid by Ratio Pay for that Payment, and Customer will indemnify Ratio Pay for all liabilities, costs and expenses (including without limitation fees, fines, penalties and reasonable legal fees) incurred by Ratio Pay resulting from such rejection of pre-authorized debit or any error in any pre-authorized debit.
(f) Permitted Purpose. Customer may access and use the Services in Canada and solely for Customer's business purposes.
(g) Customer's Responsibility for Permitted Users. Customer shall: (1) be responsible for: (i) the accuracy, quality and legality of Customer Data; (ii) verification of all information including but not limited to Customer Funding and Payments by Permitted Users; (iii) the means by which Customer acquired Customer Data; and (iv) Customer’s use of Customer Data with the Services; (2) ensure that each Permitted User shall: (i) comply with all Applicable Laws with respect to the Services, including, but not limited to, laws related to the export of technical or personal information; (3) only use the Services with content and data for which Customer has all necessary rights; and (4) use the Services in accordance with any reasonable specifications provided by Ratio Pay, which may be amended from time to time.
(h) Suspension of Access; Modifications. Ratio Pay may:
(i) suspend and or permanently terminate a Permitted User’s access to all or a portion of the Services, all in Ratio Pay’s sole discretion; and
(ii) make any Modifications to the Services, in Ratio Pay’s sole discretion.
(j) Non-Ratio Pay Application. Ratio Pay or third parties may make available (for example, through the Services or otherwise) third party products or services, including, for example, Non-Ratio Pay Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Ratio Pay Application provider, product or service is solely between Customer and the applicable Non-Ratio Pay Application provider. Ratio Pay does not warrant or support Non-Ratio Pay Applications or other Non-Ratio Pay products or services, whether or not they are designated by Ratio Pay as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Ratio Pay is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Ratio Pay Application or its provider. The Services may contain features designed to interoperate with Non-Ratio Pay Applications. Ratio Pay cannot guarantee the continued availability of such service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Ratio Pay Application ceases to make the Non-Ratio Pay Application available for interoperation with the corresponding Services features in a manner acceptable to Ratio Pay. Ratio Pay is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Ratio Pay Applications or its provider.
(k) Free Trial. If Customer registers on the Website for a free trial (“Free Trial”), Ratio Pay will make the applicable Services available to Customer on a trial basis free of charge until the earlier of: (i) the end of the Free Trial period for which Customer registered to use the applicable Services as may be set out in an Order Form or on the Website; or (ii) the start date of any Services; or (iii) termination by Ratio Pay in its sole discretion. Additional terms and conditions related to the Free Trial may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CUSTOMER DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES ACCESS AND USE TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE EXPIRATION OF THE FREE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO ANY NON FREE TRIAL SERVICES; THEREFORE, IF CUSTOMER PURCHASES NON FREE TRIAL SERVICES, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE EXPIRATION OF THE FREE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “WARRANTY AND DISCLAIMER” SECTION AND “INDEMNITIES” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND RATIO PAY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE RATIO PAY’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED CAD$100.00. WITHOUT LIMITING THE FOREGOING, RATIO PAY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S OR PERMITTED USERS’ USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (C) CUSTOMER DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO RATIO PAY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
(l) Subcontracting. Ratio Pay may engage third parties to assist it in providing the Services or any part thereof.
3. Permitted User Credentials; Communications Rules; Customer Restricted Activities.
(a) Customer shall permit only Permitted Users to access and use the Services. Ratio Pay will issue one administrator account (the “Administrator Account”) to Customer that provides Customer with the capability to create user identification and select roles (together, “Permitted User Credentials”) for each Permitted User that Customer wishes to have access to and use of the Services. Customer shall ensure that its Permitted Users create passwords of a reasonable length and strength to ensure the security of the Permitted User Credentials. Customer’s Permitted User with an Administrator Account is responsible to issue Permitted User Credentials for Permitted Users.
(b) Ratio Pay has no obligation to verify the identity of any person who gains access to the Services by means of Permitted User Credentials. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Permitted User in connection with the Services; (iii) Customer’s systems; (iv) the security and use of Permitted User Credentials of Customer and its Permitted Users; (v) any use of the Services by any Third Party or other Person that Customer invites to use the Services; and (vi) all access to and use of the Services directly or indirectly by or through the Customer’s systems or its or its Permitted Users’ Permitted User Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (A) securely administer the distribution and use of all Permitted User Credentials and protect against any unauthorized access to, or use of, the Services; and (B) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services. Customer shall immediately take all necessary steps, including providing notice to Ratio Pay, to effect the termination of Permitted User Credentials for any Permitted User if there is any compromise in the security of Permitted User Credentials or if unauthorized use is suspected or has occurred. Customer shall provide all reasonable assistance necessary for Ratio Pay as Ratio Pay may request in connection with any security breach or unauthorized use. For clarity and avoidance of all doubt, Ratio Pay will not be liable for any loss or damage that Customer or any third party may incur as a result of anyone using the Permitted User Credentials, either with or without Customer’s knowledge or Customer’s breach of its obligations under this Section. Ratio Pay reserves the right to suspend, deactivate, or replace the Permitted User Credentials if it determines that the Permitted User Credentials may have been used for an unauthorized purpose.
(c) When Customer uses the Services or sends e-mails, texts or other electronic messages to Ratio Pay, Customer is communicating with Ratio Pay electronically and Customer consents to it and Permitted Users receiving communications from Ratio Pay electronically via email, text or any other type of electronic messages (“Communications”). By using the Services, Customer acknowledges and agrees that Ratio Pay will send Customer and Permitted Users service-related e-mails or other Communications relating to Customer’s account, including service updates. Customer’s consent to receive Communications and do business electronically, and agreement to do so, applies to all of Customer’s interactions and transactions with Ratio Pay. If Customer is a member of Ratio Pay’s mailing list Customer and its Permitted Users will also receive email Communications from Ratio Pay regarding our products, services and initiatives (including collaborations and partnerships). If Customer is a member of Ratio Pay’s mailing list Customer will also receive email Communications from Ratio Pay regarding Ratio Pay’s products, services and initiatives (including collaborations and partnerships). If Customer or a Permitted User does wish to receive these communications, Customer or Permitted User can unsubscribe from such promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications. The withdrawal of consent will not affect the legal validity and enforceability of any obligations or any Communications provided or business transacted prior to withdrawal of consent. Customer shall keep Ratio Pay informed of any changes in its email and mailing address so that it continues to receive all Communications without interruption. Ratio Pay may also provide Communications to Customer in writing to the address provide within the Services. If Customer’s contact information changes at any time, Customer shall update it within the Services. Customer has a duty to review the records relating to Invoices and identify any error with respect to any Communication, which was not authorized by Customer, or otherwise set forth improper or inaccurate information not consistent with the Communications transmitted by Customer. Customer shall notify Ratio Pay immediately of any Communication that it believes to be unauthorized, improper or inaccurate.
(d) In connection with Customer’s use of any Services, or in the course of Customer’s interactions with Ratio Pay, Customer shall not by itself or permit any Permitted Users to:
(i) act in a manner that is defamatory, trade libelous, threatening or harassing;
(ii) provide Ratio Pay with false, inaccurate or misleading information;
(iii) send or receive potentially fraudulent funds or what Ratio Pay reasonably believes to be potentially fraudulent funds;
(iv) refuse to cooperate in an investigation regarding improper use or receipt of funds or provide confirmation of Customer’s identity or any information Customer provide to Ratio Pay;
(v) use an anonymizing proxy;
(vi) use the Services in a manner that Ratio Pay, or members of the electronic funds transfer network reasonably believes to be contrary to applicable network rules, including but not limited to the automated clearing settlement system rules and standards as defined by Payments Canada or any other Applicable Law;
(vii) take any action that imposes an unreasonable or disproportionately large load on Ratio Pay’s infrastructure;
(viii) use the Services other than for legitimate transactional purposes;
(ix) use the Services to operate or engage in any business regulated by the Financial Transaction and Reports Analysis Centre of Canada (FINTRAC) or any other Governmental or Regulatory Authority that oversees money service businesses, virtual currency exchanges or similar businesses; or
(x) breach or attempt to breach the security of any network, servers, data, computers or other hardware relating to or used in connection with the Services or belonging to or used or leased by any other customer of Ratio Pay or any third party that is hosting or interfacing with any part of the Services; use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Services or the operations or assets of any other customer of Ratio Pay or any third party, including but not limited to viruses, Trojan horses, worms or other computer programming routines.
If Ratio Pay believes that Customer has engaged in any restricted activities or violated any of the provisions set out in this Section 3 (d) or otherwise in this Agreement, Ratio Pay may take various actions to protect itself, a third party or Customer from fees, fines, penalties and/or any other liability. These actions may include, but are not limited to the following:
(a) close, suspend or limit Customer’s access to the Services (such as limiting Customer’s ability to make or receive any Payments);
(b) update inaccurate information provided by Customer;
(c) refuse to provide Services to Customer in the future;
(d) contact Customer’s financial institution or inform law enforcement or impacted third parties of Customer’s actions; or
(e) take legal action against Customer.
4. Ownership; Reservation of Rights
(a) As between Ratio Pay and Customer, Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to Ratio Pay a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to:
(i) provide the Services;
(ii) improve and enhance the Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the "Aggregated Data").
Ratio Pay may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Ratio Pay and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Ratio Pay.
(b) Ratio Pay or its licensors retain all ownership and intellectual property rights in and to:
(i) the Services;
(ii) all copyright and moral rights to the format and arrangement of any and all reports generated through the Services, but not the content of any such reports;
(iii) any and all reports generated through the Services (“Reports”) excluding any Customer Data therein;
(iv) anything developed or delivered by or on behalf of Ratio Pay under this Agreement;
(v) all other Ratio Pay’s Confidential Information, including but not limited to, any reports generated from the Services or any Aggregated Data; and
(vi) any Modifications to the foregoing (i), (ii), (iii), (iv) and (v),
(collectively "Ratio Pay Property").
Customer may download, keep or merge Reports generated by Customer’s use of the Services.
(c) Customer grants to Ratio Pay and it's affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Ratio Pay's affiliates' services ("Feedback"). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Ratio Pay is not obligated to use any Feedback.
(d) All rights not expressly granted by Ratio Pay to Customer under this Agreement are reserved.
5. Privacy
Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Ratio Pay's privacy policy located at www.ratiopayments.com/privacypolicy (“Privacy Policy”).
6. Support
Customer will generally have access to Ratio Pay's technical support services from 9:00 AM to 5:00 PM ET Monday through Friday excluding holidays, through email at support@ratiopayments.com. Ratio Pay reserves the right, in its sole discretion, to change the support times noted in this section.
7. Fees and Payment
(a) Fees. Unless otherwise set out in an Order Form, Customer will pay to Ratio Pay the fees described in Ratio Pay’s then-current price list as may be amended from time to time in Ratio Pay’s discretion (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
(b) Changes to the Fees. Ratio Pay reserves the right to change the Fees and institute new charges by providing not less than seven (7) days prior notice to Customer.
(c) Payment. Ratio Pay will debit the Customer’s bank account or other Payment Method for all Fees due and payable to Ratio Pay under this Agreement. Customer may also pay for the Fees via credit card or another manner then available on the Website in accordance with the timing and frequency set out on Ratio Pay’s then-current price list. By providing credit card or Payment Method (including without limitation Customer’s bank account) information to Ratio Pay, Customer authorizes Ratio Pay to charge the Customer’s Payment Method (including without limitation Customer’s bank account) or credit card for all outstanding Fees, Taxes, charges and outstanding account balances due and this constitutes Ratio Pay’s good and sufficient authority for so doing. Customer must provide current, complete and accurate information for Customer’s billing account. Customer must promptly update all information to keep Customer’s billing account current, complete and accurate (such as a change in billing address , credit card, bank account number, or credit card expiration date), and Customer must promptly notify Ratio Pay if Customer’s payment method is cancelled (e.g., for fraud, loss or theft) or if Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of its Customer user account. Changes to such information can be made in the Customer user account settings. If Customer fails to provide any of the foregoing information, Customer agrees that Ratio Pay may continue charging Customer for any use of paid services under Customer’s billing account and Ratio Pay reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full.
(d) Disputed Charges. If Customer believes Ratio Pay has charged Customer incorrectly, Customer must contact Ratio Pay no later than 45 days after having been charged by Ratio Pay in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(e) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Without limiting Ratio Pay’s other rights, Ratio Pay may suspend Customer’s access to the Services until all amounts due are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of 2.25 % compounded monthly, or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
(f) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Ratio Pay.
(g) Suspension. Any suspension of the Services by Ratio Pay pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
8. Confidential Information
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the "Recipient", the Party disclosing such information will be the "Discloser" and "Confidential Information" of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser's past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; if Discloser is Ratio Pay includes all Ratio Pay Property, provided that the Discloser's Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser's Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(A) in the case of Customer to its own employees or Permitted Users having a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; or
(B) in the case of Ratio Pay to Ratio Pay's employees, consultants, agents or affiliates, having a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing and to subcontractors and sub-processors to perform any Services;
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party's Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 8 (b), the Recipient may disclose the Discloser's Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party's business.
(d) Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient's data destruction practices. Notwithstanding the foregoing, Ratio Pay may retain any electronically archived Customer's Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
9. Warranty and Disclaimer
(a) Customer Warranty. Customer represents and warrants to and covenants with Ratio Pay that:
(i) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by Applicable Laws, to enable Ratio Pay to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Ratio Pay and to or from all applicable third parties;
(ii) Customer will obtain all necessary consents, permissions and licenses with respect to any and all Customer Funding and Payments to the extent necessary to use the Services; and
(iii) without limiting the foregoing, to the extent the Services include the sending of any email, text messages or other electronic communications by or on behalf of Customer, Customer: (A) expressly authorizes Ratio Pay to send or cause or permit to be sent such messages on behalf of Customer; and (B) represents and warrants to, and covenants that it shall (a) only send or cause or permit to be sent emails, text messages or other commercial electronic messages to recipients from whom Customer has obtained all necessary consents and provided all necessary notices as required by and in compliance with Applicable Laws (which shall include all applicable privacy and anti-spam laws, including without limitation Canada’s Anti-Spam Legislation (“CASL”); and (b) comply with all Applicable Laws with respect to the content and sending of such messages, including all applicable time periods, message form, content and unsubscribe requirements. Customer shall solely be responsible for maintaining records sufficient to demonstrate its compliance with Applicable Laws, including CASL. These obligations are the sole responsibility of Customer, and Ratio Pay has no obligation to review or approve any emails, text messages, notices or consents. Any template, sample or other notices provided to Customer by Ratio Pay pursuant to this Agreement or otherwise are for reference only and Ratio Pay does not represent that such templates, samples or notices are sufficient to meet Customer’s obligations under Applicable Laws.
Ratio Pay will use the Customer Data performing the Ratio Pay Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness, or completeness of the Customer Data. Customer’s responsibilities in this Agreement apply notwithstanding that Ratio Pay may provide templates, samples, guidance or suggestions relating to any matters that are Customer’s responsibilities under this Agreement.
(b) GENERAL DISCLAIMER. RATIO PAY MAKES NO REPRESENTATION REGARDING THE ACCURACY OF THE INFORMATION OBTAINED BY USE OF THE SERVICES. RATIO PAY MAKES NO REPRESENTATION THAT THE SERVICES OR ANY MATERIALS PROVIDED THROUGH THE SERVICES, IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OUTSIDE OF CANADA OR THE UNITED STATES AND ACCESSING THEM FROM TERRITORIES WHERE THEIR CONTENTS ARE ILLEGAL OR IS PROHIBITED. PERMITTED USERS WHO CHOOSE TO ACCESS THE SERVICES FROM OTHER LOCATIONS DO SO ON THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAWS. RATIO PAY WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE, NON-RATIO PAY APPLICATION OR HARDWARE RATIO PAY PROVIDES OR USES IN PROVIDING THE SERVICES. RATIO PAY WILL NOT BE RESPONSIBLE FOR THE INTERCEPTION OR DELAY OF DATA TRANSMITTED TO OR FROM CUSTOMER. CUSTOMER’S USE OF THE SERVICES AND CONTENT, AND ITS USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK AND DISCRETION AND RATIO PAY HEREBY DISCLAIMS ANY AND ALL LIABILITY TO CUSTOMER, ANY PERMITTED USERS, OR ANY THIRD PARTY RELATING THERETO. RATIO PAY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS PROVIDED BY RATIO PAY TO CUSTOMER ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RATIO PAY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, RATIO PAY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
10. Indemnities
(a)
(i) Ratio Pay will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate or a Customer Indemnitee) that the Ratio Pay Services infringe any third party intellectual property right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Ratio Pay Services into, or any combination, operation, or use of any Ratio Pay Services with, any products or services not provided or authorized by Ratio Pay Services, unless such infringement would also have resulted solely from the use of the Ratio Pay Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Ratio Pay Services other than by Ratio Pay or with Ratio Pay’s express written approval; (C) unauthorized use of the Ratio Pay Services; or (D) Customer’s indemnity in Section 10 (b).
(ii) If the Ratio Pay Services are, or in Ratio Pay’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual property right, or if the Customer’s use of any Ratio Pay Services is enjoined or threatened to be enjoined, Ratio Pay may, at its option and sole cost and expense:
(A) obtain the right for the Customer to continue to use the affected Ratio Pay Services materially as contemplated by this Agreement;
(B) modify or replace Ratio Pay Services, in whole or in part, to seek to make the Ratio Pay Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Ratio Pay under this Agreement; or
(C) if Ratio Pay determines that neither of the foregoing two options are reasonably available, by written notice to the Customer, terminate the Ratio Pay Services and this Agreement, in whole or in part, and require the Customer to immediately cease using the Ratio Pay Services.
This section 10 (a) sets forth Customer's sole remedies and Ratio Pay’s sole liability and obligation for any actual, threatened, or alleged claims that this Agreement or any subject matter hereof (including the Ratio Pay Services) infringes, misappropriates, or otherwise violates any third party intellectual property rights.
(b) Customer will defend, indemnify and hold harmless Ratio Pay, and its officers, directors, employees and agents (each, a "Provider Indemnitee") from and against any and all Losses incurred by a Provider Indemnitee arising out of or relating to any Action that arise from or relate to: (i) Customer Data including but not limited to that any Customer Data infringes the rights, including the intellectual property rights, of any third party; (ii) Customer's or Permitted Users’ breach of any obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; (iv) Customer’s relationship with any Third Party, Person or any other third party involved in the performance of Customer’s services including but not limited to related to any dispute with any Third Party or other Person; (v) misappropriation of confidential or proprietary information, including without limitation, any infringement, misappropriation, or violation of any patents, copyrights, trademarks, trade secret rights, or other proprietary rights, or personal rights of any persons, firms or entities, including without limitation, rights of publicity or privacy; (vi) gross negligence, wilful misconduct or fraud of Customer, any Permitted User, Third Party or any Person on behalf of Customer or in any way in connection with any Payment, Services or this Agreement; or (vii) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Ratio Pay in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Ratio Pay.
(c) Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10 (c) will not relieve the Indemnitor of its indemnity obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF RATIO PAY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE RATIO PAY IN THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL RATIO PAY'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL RATIO PAY BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
18. Term and Termination
(a) Term. A subscription to Services will commence on the Effective Date and will remain in effect unless earlier terminated in accordance with this Section 12 (“Term”).
(b) Termination without cause. Notwithstanding any other Sections of this Agreement, Ratio Pay may, in its discretion, terminate the Services, this Agreement or any part thereof at any time by providing notice to Customer.
(c) Termination for cause. Without limiting any of Ratio Pay’s other rights in this Agreement, if Ratio Pay has grounds to believe that Customer is using the Services for any improper purpose, Ratio Pay may immediately suspend or terminate Customer’s access to and use of the Services and Customer will be notified of such suspension or termination. Upon termination of Customer’s access and use of the Services, this Agreement will automatically terminate. Ratio Pay may, in addition to other relief, terminate this Agreement if required by Applicable Law or if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Ratio Pay may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
(d) Effect of Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the Services and Customer will delete or, if requested by Ratio Pay, return any Ratio Pay Property in its possession, and certify in writing to the Ratio Pay that the Ratio Pay Property has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund. All Fees due and payable and any amounts due to Ratio Pay are immediately due and are to be immediately paid by Customer to Ratio Pay.
(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 4 (Ownership; Reservation of Rights), Section 5 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty and Disclaimer), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 12 (e) (Survival), and Section 13 (General Provisions).
13. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Ratio Pay, to the following Ratio Pay's address and email contact:
7 Ruby Street, Hamilton, Ontario, L8W 2S6
support@ratiopayments.comand (ii) if to Customer, to the current mailing or email address that Ratio Pay has on file with respect to Customer. Ratio Pay may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer's contact information on file with Ratio Pay current at all times during the Term.
(b) Assignment. Customer may not assign this Agreement to any third party without Ratio Pay's prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Ratio Pay may assign this Agreement or any rights under this Agreement to any third party without Customer's consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Ratio Pay from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Services. Ratio Pay makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction. Except as otherwise provided in this Agreement, the Parties' rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms "include" and "including" mean, respectively, "include without limitation" and "including without limitation." The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms "consent" or "discretion" mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party's reasonable control (except for Customer’s obligation to pay Fees or Customer's indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemic, strikes or other labour problems (other than those involving that Party's employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites ("Force Majeure"). For clarity, a Force Majeure event will not excuse the Customer from its failure to pay Fees or Customer's indemnities under this Agreement.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. Ratio Pay's relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, RATIO PAY MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN "AMENDMENT"), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY RATIO PAY, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Customer Lists. Ratio Pay may identify the Customer by name and logo as a Ratio Pay customer on the Website and on other promotional materials. Any goodwill arising from the use of the Customer's name and logo will inure to the benefit of the Customer.
(m). English Language. It is the express wish of the Parties that this Agreement 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.