Merchant Terms of Service

Last Updated: August 24, 2023

Introduction

EukaPay (“EukaPay”, “our”, “we” and “us”) is an online payment processor that is designed to for customers and merchants to transact online using cash and cryptocurrencies.

EukaPay makes payment processing services available to merchants to allow their customers to pay for goods and services using cryptocurrencies. These terms of service (the “Terms of Service”) govern your use of all products and services provided by EukaPay, including the payment processing services, our website (the “Website”), and all other websites or services made available by EukaPay (collectively, the “Services”). By using the Website and/or the Services, you signify on your behalf and any person or entity that you represent that you have read, understood, and agree to be bound by these Terms of Service and all agreements included by reference in these Terms of Service, including our privacy policy (the “Privacy Policy”), a copy of which can be found at: eukapay.com/legal/privacy.

In these Terms of Service, we refer to users and merchants using or accessing the Website and/or the Services as “Merchants” or “you” and we refer to your customers as “Customers”.

Please read these Terms of Services carefully to ensure that you understand each provision.

1. Eligibility; Amendments

1. This is a contract between you and EukaPay. Your use of the Website and the Services is expressly conditioned on your acceptance without modification of these Terms of Service. If you do not agree, you may not use the Website or the Services. You may use the Website and the Services only if you can form a binding contract with EukaPay, and only in compliance with these Terms of Services and all applicable local, provincial, state, federal, national, and international laws, rules and regulations. Any use or access to the Website or the Services by anyone under eighteen (18) years of age is strictly prohibited and in violation of these Terms of Services. The Website and the Services are not available to any person previously removed from the Website or the Services by EukaPay.

2. By entering or using the Website or the Services you represent and warrant that:

1. the individual accepting these terms on behalf of the Merchant is of the age of majority, and has all necessary power, capacity and authority to bind the Merchant hereto;

2. you have all necessary right, power, authority and ability to enter into and fulfill your obligations under these Terms of Service and your use of the Website and the Services;

3. if the Merchant is a legal entity, your business entity is duly organized, validly exists, is in good standing under the laws of the jurisdiction of your formation, and is duly qualified and in good standing in each jurisdiction in which the conduct of your business requires it to so qualify;

4. your use of the Website and the Services will not contravene any applicable international, federal, state or local laws or regulations, including tax laws and regulations;

5. you ensure that your use of the Website and the Services does and at all times will comply with all applicable anti-money laundering/anti-terrorist funding compliance laws and regulations, including, without limitation, all sanctions programs that may apply to you based on the jurisdiction(s) in which you operate your business and serve your Customers;

6. All information that you have provided to us, and may from time to time provide to us, is and shall continue to be true and complete, and shall be timely updated and corrected to maintain its status as true and complete;

7. all payment transactions requested by you will represent bona fide transactions for the purchase of goods or services; and

8. you are using the Services on your own behalf or on behalf of the Merchant for which you have set up an account, and not pursuant to the instruction or request of any other person or entity.

3. We may amend and update these Terms of Service at any time in our discretion without your consent by posting a revised version of these Terms of Service. The updated Terms will be effective at the time we post it, except if the revised Terms of Service include a substantial change affecting your rights, in which case we will provide you with at least 30 days’ prior notice of the revised Terms of Service. Your continued use of the Website and/or the Services following an amendment to the Terms of Service constitutes acceptance of the amended Terms of Service. You should check these Terms of Service frequently to ensure that you have reviewed the latest version. If we make any changes, we will revise the Last Updated date above.

2. Access and Use of Our Website and the Services

1. As long as you agree to and comply with these Terms of Service, EukaPay grants to you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable and limited right to enter and use the Website and the Services.

2. Depending on your country of residence, you may not be able to use all the functions of the Website or the Services. It is your responsibility to follow those rules and the applicable laws in your country of residence and/or country from which you access the Website and the Services.

3. Unless otherwise agreed to by EukaPay, you may use the Services only for the purposes identified in this section. You may not:

1. license, sell, rent, lease, transfer, assign, distribute, host, modify, transmit, use or reuse any part of the Website or the Services or any content made available through the Website or the Services for any public or commercial purpose without the written consent of EukaPay, which EukaPay may withhold in its sole discretion;

2. remove any all copyright and other proprietary notices on material downloaded and/or copied from the Website or the Services;

3. access or use the Website or the Services in any way that could or is intended to damage or impair the Website or the Services, or any server or network underlying the Website or the Services;

4. interfere with anyone else’s use and enjoyment of the Website and the Services;

5. access the Website or the Services in order to build a similar or competitive website, product, or service; or

6. attempt to reverse engineer, modify, disassemble, reverse compile or create a derivative work of any component of the Website or the Services.

4. You acknowledge and agree that we have no obligation to provide you with any support or maintenance in connection with the Website and the Services.

3. Prohibited Uses

1. You agree not to engage in any of the following prohibited activities:

1. Any person or entity believed to be a weapons, arms dealing or defence company;

2. Any person or entity believed to be conducting illegal activities including:

1. Dealing illegal drugs;

2. Human trafficking;

3. Unlicensed gambling;

4. Money laundering;

5. Terrorist financing;

6. Fraud and other financial crimes.

3. Shell banks;

4. Shell companies and/or companies that do not appear to serve any legitimate economic purpose;

5. Any person or entity believed to be attempting to use EukaPay to conduct or be paid for illegal activities;

6. Any person or entity that has is the subject of relevant sanctions levied by the U.N. and/or Canadian government; and

7. Any other merchant category deemed to be outside of EukaPay’s risk tolerance at the discretion of the Compliance Officer and Management.

2. You further agree that you will not use the Services for, or otherwise accept payments in connection with the following businesses, business activities or business practices:

1. Deceptive marketing activities, including:

1. Negative response marketing,

2. Telemarketing,

3. Chain letters,

4. “Get rich quick” schemes,

5. Multi-level marketing or pyramid schemes,

6. Telemarketing,

7. Collection agencies,

8. Sharing users data with another merchant for payment of up-sell or cross-selling without consent

2. Illegal products, sporting and drug-related activities, including:

1. Illegal sports forecasting or odds making,

2. Illegal marijuana dispensaries and related businesses,

3. Illegal products or services,

4. Counterfeit goods (e.g. knock-offs, imitations, bootlegs),

5. Substances designed to mimic illegal drugs,

3. Bail bonds;

4. Cheque cashing;

5. Evading any chargeback monitoring programs;

6. Mail-order brides;

7. Products/services intended to inflict or promote revenge, harassment, and other forms of abuse, humiliation and intimidation; and

8. Any other merchant category deemed to be outside of EukaPay’s risk tolerance at the discretion of the Compliance Officer and Management.

4. Location of Website and Services

1. The Website and the Services are controlled and operated from facilities in Canada. EukaPay makes no representations that the Website or the Services are appropriate or available for use in other locations. Those who access or use the Website or the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local, provincial, state, federal, national, and international laws and regulations, including but not limited to export and import regulations. You may not use the Website or the Services if you are a resident of a country embargoed by the government of Canada, the United States or the European Union or are a foreign person or entity blocked or denied by the Canadian or United States government. You may not use this Website or the Services if you are a resident of a country which has been sanctioned by the United Nations. Unless otherwise explicitly stated, all materials found on the Website and the Services are solely directed to individuals, companies, or other entities located in Canada.

2. While most of the information on the Website applies internationally, a significant amount of information applies only to certain countries or regions. Although we try to mark all country and region-specific information with a country indication, we do not represent or warrant that all information regarding the Services without indication applies internationally.

5. Registration and Merchant Account Setup

1. You will be required to set up a merchant account (the “Account”) prior to accessing and using the Services. You agree to comply with EukaPay’s account set-up procedures, including the requirement to provide accurate and complete information to EukaPay upon sign-up. You agree to inform us within 10 business days of any changes to the information provided to EukaPay when your Account was created.

2. You agree that EukaPay, or a service provider engaged by EukaPay, may verify your name, address, phone number, and other Account details against information about you held by third party sources in order to verify your identity to fulfill applicable know-your-client and anti-money laundering obligations and to help protect against fraud or misappropriation of user accounts.

3. You are solely responsible and liable for any use and misuse of the login credentials for your Account and for all activities that occur under your Account. For security reasons, you must keep your login credentials confidential and not disclose them to any person or permit any other person to use them, except authorized representatives of your business and authorized representatives of EukaPay. EukaPay is not under any obligation to verify the actual identity or authority of the user of any login name or password.

4. You must immediately notify EukaPay of any unauthorized use of your login credentials, or if you know or suspect that your login credentials have been lost or stolen, become known to any other person, or otherwise compromised.

5. All login credentials remain the property of EukaPay and may be cancelled or suspended at any time by EukaPay without any notice or liability to you or any other person.

6. Refunds

1. General Procedures: EukaPay offers the convenience of processing cryptocurrency refunds for your Customers. Refunds can be initiated by either You or your Customers. The refund amount is determined based on the fiat value of the goods and/or services originally paid for. The refunded amount will be remitted in the same cryptocurrency used for the initial Invoice payment. In the event that your balance is insufficient to cover pending refund requests, we might request you to opt for a rolling reserve or pre-authorized debit (PAD). Any necessary currency conversions during the refund process will be calculated on the same date the refund is processed.

2. Disclosure of Merchant Refund Policy:EukaPay assumes no liability for merchant refund policies or their adherence to applicable laws. Merchants are advised to provide a clear refund policy to customers, which may include scenarios where no refunds are permitted. In specific industries, like those providing services, a refund policy might not be applicable. For all refund transactions, EukaPay will convert the item's fiat currency value to the original cryptocurrency that was used, while using the exchange rate at the time the refund is processed for the customer.

3. Minimum Refund Amount and Fees: When You issue a refund on a payment, the miner fee incurred to send that refund will be subtracted from the refunded cryptocurrency amount given to the Customer. In this case, the Customer will bear the responsibility for this miner fee. Alternatively, if You decide to cover the miner fee for the refund, a separate entry reflecting this deduction will appear in your ledger after the refund is processed. It is advised that you inform your Customers in your refund policy about the possibility of them bearing miner fees on successful payment refunds. A minimum refund amount of 100 CAD must be met for processing. For every refund transaction, we will be charging your Customers a flat 1%.

4. Refunds above 1000 USD: If the refund is equal to or greater thsan 1000 USD, You will need to complete a KYC verification process. You will need to provide the Customer’s legal name, address, and date of birth, as well as upload a government-issued ID.

7. Fees

EukaPay charges a transaction fee for transactions conducted using the Services. Our current fees may be changed by us at any time and from time to time at our sole discretion.

8. Payments and Settlement

1. Payment Generation and Exchange Rate Guarantee: To create a payment for your Customer, you may post a request to EukaPay to collect a specific amount in your local supported currency, such as Canadian Dollars, United States Dollars or Euros. EukaPay will pull the exchange rate, where applicable, and provide the payment instructions and exchange rate to you for you to display to the Customer through the Merchant portal.

2. Exchange Rate Guarantee: We guarantee the exchange rate displayed to the Customer if the Customer pays within the applicable time window after the payment is created. Invoice timeout information is clearly displayed for each payment through the Merchant portal. While we guarantee the exchange rate if the Customer pays within such time window, you agree that you assume the volatility risk of the currency or cryptocurrency in which you choose to settle payments. For example, if you ask us to collect US$100, and the Customer sends the cryptocurrency equivalent, based on the displayed exchange within the time window, we guarantee you will receive exactly US$100, minus our applicable fees. We do not, however, guarantee the value of the US dollar.

3. Block Confirmations: For any payments that are made using cryptocurrencies, an invoice is considered complete by us after payment by the Customer has been sent and has the requisite number of block confirmations. EukaPay may in its discretion determine the number of block confirmation required and will indicate to you when the payment is complete. You have the option to inform your Customer earlier about the status of the invoice; however EukaPay is not liable for settling invoices associated with a payment that never receives the requisite number of confirmations. Such transactions will not be confirmed by EukaPay and you will not receive a credit to your Account for such transactions. EukaPay employs techniques to detect payments that are at risk of never receiving the requisite number of block confirmations, however, you acknowledge and agree that these measures do not eliminate the risk associated with unconfirmed payments.

4. Methods of Settlement: We will verify the Customer’s payments over the applicable cryptocurrency network and post the balance to your Account once confirmed, according to your preference settings. The debits and credits to your Account are funds temporarily held by EukaPay until settlement to your bank account or digital wallet can take place. You can receive a settlement in the currency that you designate upon Account sign-up, or in any supported cryptocurrency. You assume volatility risks of the currency in which you choose to settle. For example, if you choose to settle in bitcoin, then you assume the volatility risk of the bitcoin value.

5. Settlements in Local Currencies: Direct deposit, electronic funds transfer and wire payments to a bank account in a local currency is available to Merchants located in certain countries. If you wish to receive direct deposit settlements, you must provide us with valid bank account information and keep such information current.

6. Settlements in Cryptocurrencies: You may choose to accept settlements from your Account in supported cryptocurrencies. If you wish to receive settlements in supported cryptocurrencies, you must provide us with your valid digital wallet information and keep such information current. You assume the risk associated with settling in cryptocurrency, including the risk of loss if any settlement information you provide us with is inaccurate or incomplete. You acknowledge that EukaPay is not responsible for transferring, safeguarding, or maintaining your private keys or any assets associated therewith. If you lose, mishandle, or have stolen your digital currency private keys, you acknowledge that you may not be able to recover associated assets, and that EukaPay is not responsible for such loss. You acknowledge that EukaPay is not responsible for any loss or damage arising from your failure to comply with the requirements hereunder.

7. Timing of Settlement. The timing of settlement for Merchants is as follows:

1. Merchants based in Canada who choose to settle in Canadian Dollars will settle on each day that they process CAD$250 or more. If a Merchant does not process CAD$250 per day, the Merchant will settle on the next Monday or Friday on which their Account balance is at least CAD$250.

2. All other Merchants will settle on each day that they process CAD$250 or more (in their local currency). If a Merchant does not process the equivalent of CAD$250 (in their local currency) per day, the Merchant will settle on the next Monday or Friday on which their account balance is at least CAN$250 (in their local currency).

3. Subject to Section 6(e), all settlements in local currencies will be made by wire transfer. For US-based Merchants settling in USD, wire transfers will be made within two business days. For all other Merchants, wire transfers will be made within two business days. Notwithstanding the location of the merchant, if the wire is over US$1,000,000, the transfer may take up to five business days.

4. Settlements may only take place on business days and will be calculated as of the prior day at 9:00pm (Eastern Time).

9. Cryptocurrencies

The EukaPay platform permits Merchants to allow Customers to use cryptocurrencies to purchase goods and services. The use of cryptocurrencies is risky. Some of the risks associated with use of cryptocurrencies include the following:

1. Market Risk: Cryptocurrencies are susceptible to fluctuations in valuation. The market for cryptocurrencies is still new and highly uncertain. You are fully responsible and bear all of the risk for any of the price fluctuation of any cryptocurrency that you choose to hold. EukaPay is not liable and you shall hold us harmless from any losses a Merchant may incur while, buying, selling, trading or using cryptocurrencies in any manner;

2. Liquidity Risk: All markets for financial instruments have inherent varying degrees of liquidity. Markets for cryptocurrencies are no different. There is never any guarantee that there will be an active market for one to sell, buy, or trade these instruments or products derived from or ancillary to them;

3. Legal Risk: The legal status of certain cryptocurrencies is not clearly defined in some jurisdictions. This may affect the legality of holding or trading them. As a result, the rights and legality of a particular cryptocurrencies may vary among different jurisdictions. Merchants are responsible for complying with the laws applicable to the purchase, ownership, use, and taxation of cryptocurrencies in their jurisdiction;

4. Exchange Risk (Counterparty Risk): Holding cryptocurrencies on deposit either personally or with any third party in a custodial relationship has inherent risks. These risks include security breaches, risk of contractual breach, and risk of loss. Merchants are fully responsible for taking appropriate security measures to protect cryptocurrencies that they hold or accept; and

5. Trading Risk: In addition to liquidity risks, the value of cryptocurrencies may be volatile and fluctuate quickly. Participants in any cryptocurrencies market are warned that they should pay close attention to their position and holdings, and how they may be impacted by sudden and adverse shifts in trading and other market activities.

10. Suspicious Use and Right to Reject a Transaction

EukaPay reserves the right in its sole discretion to refuse to complete any transaction using the Services that we have reason to believe is unauthorized, or in violation of any agreement between EukaPay and a Merchant or Customer, or exposes you, other Merchants or Customers, our processors or the Services to harm, including but not limited to transactions that EukaPay suspects are connected to fraud or other criminal acts. You hereby authorize and consent to EukaPay sharing any and all information relating to such a matter with the appropriate legal and/or regulatory enforcement agencies.

11. Termination of Account

1. We may in our sole discretion permanently or temporarily terminate or suspend your access to the Website, the Services or your Account without notice and liability for any reason or for no reason, including:

1. you will use or have used your Account to engage in unlawful or improper activity in violation of applicable laws or regulations;

2. you have used your Account to engage in any fraud or suspicious activity;

3. you have ceased to carry on operations, transferred substantially all of your assets, or committed an event of bankruptcy or insolvency; or

4. you have breached these Terms of Service.

2. Upon termination for any reason or no reason, you (i) will discontinue use of the Services immediately and will still be obligated to pay any fees incurred, if applicable, prior to termination and (ii) agree that EukaPay will not be liable for any damages or responsible for any compensation in connection with the termination or suspension of the Website, the Services or your Account.

12. Taxes

It is the Merchant’s sole responsibility to determine what, if any, taxes apply to the transaction, sale of any and all goods and services and/or the payments you receive in connection with your use of the Services, and to remit such taxes to the proper tax authority. EukaPay is not obligated to, nor will we determine whether taxes apply, or calculate, collect, report, or remit any taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and Merchants to which we provide processing services. We reserve the right to report to relevant revenue or taxing authorities regarding payment transactions processed by EukaPay on your behalf, to the extent we are required to do so by applicable law.

13. Copyrights, Trademarks, And Other Rights

1. The Services, including the Website, its design, all text, graphics, content, video, audio and the selection and arrangement of the Website, but excluding all material, content or information posted or upload by Merchants and Customers to the Website or the Services (“User Content”) and all intellectual property rights related thereto (the “EukaPay Content”) are the property of EukaPay, and/or its various subsidiaries, affiliates, third party providers and distributors (“Third Parties”), and are protected under applicable laws, including the copyright laws of Canada and other countries. Except as explicitly provided herein, nothing in these Terms of Service shall be deemed to create a license in or under any such EukaPay Content or intellectual property rights, and you agree none of the EukaPay Content may be copied, reproduced, republished, distributed, displayed, sold, transferred, mirrored, uploaded, posted, transmitted, encoded, translated, or modified without the express written permission of EukaPay or the applicable Third Parties. You agree to abide by all copyright and other proprietary notices, information and restrictions contained in the EukaPay Content and any other material accessed through the Website or the Services.

2. EukaPay and all other related trademarks and design marks displayed through the Services (collectively, the “Trademarks”) are registered and common law trademarks of EukaPay. Other trademarks and design marks appearing on this website are trademarks of their respective owners. EukaPay grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable and limited right to display the Trademarks solely for the purpose of identifying to your customers that you offer Customers the option to use the Services to pay in cryptocurrencies and making the Services available to your Customers. Except for the limited license provided in this section, nothing offered through the Services or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, including the Trademarks, except with the express written permission of EukaPay or the other party that may own the applicable trademarks.

3. Any product, service, program or technology described in any document made available to you by EukaPay may be the subject of other intellectual property rights owned by EukaPay. Any such right that is not expressly licensed hereunder is reserved by EukaPay.

14. Comments and Feedback

You may choose to or we may invite you to submit comments, feedback, or ideas about the Website and the Services, including without limitation about how to improve the Website or the Services (“Ideas”). By submitting any Idea, you agree that (a) your disclosure is non-confidential, gratuitous, unsolicited and without restriction and will not place EukaPay under any fiduciary or other obligation, (b) you grant to us a perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, non-exclusive and fully paid-up right to copy, use, reproduce, modify, adapt, publish, create derivative works from, translate, transmit, display, distribute, market, promote, sell or offer for sale, rent or lease such information or materials or any portions thereof (including any ideas for new products or Services or modifications to existing products or Services) and/or products or Services which practice or embody, or are configured for use in practicing, such information or materials or any portion thereof, in any form or medium known or later developed, in furtherance of these Terms of Service and the actions and transactions contemplated hereby, including the right to bring an action for infringement of these rights, (c) we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone and (d) you will have no claim against for any actual or alleged infringement of any proprietary rights, rights of privacy or publicity, moral rights or rights of attribution in connection with our use of any Ideas you provide. You further acknowledge that, by acceptance of your submission, EukaPay does not waive any rights to use similar or related ideas previously known to EukaPay, or developed by its employees, consultants, advisors or representatives, or obtained from sources other than you.

15. Third-Party Links and Information

The Website and the Services may contain links to third-party materials that are not owned or controlled by EukaPay. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Website or the Services or through any third-party website or service, you do so at your own risk, and you understand that these Terms and Service and the Privacy Policy do not apply to your use of such sites. You expressly release us from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Website or the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that we shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

16. No Professional Advice

All information on the Website and the Services is for informational purposes only and should not be construed as professional advice. You should contact your own legal, financial, tax or other professional advisors. Neither the Website, the Services nor EukaPay provide any legal, financial, taxation or any other professional advice. No action should be taken based upon any information contained in the Website or the Services. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

17. Security

EukaPay uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

18. Privacy

You understand that by using the Website and our Services you consent to the collection, use and disclosure of personally identifiable information and aggregate data, and to have your personally identifiable information collected, used, transferred to and processed in accordance with our Privacy Policy, a copy of which can be found at:eukapay.com/legal/privacy.

19. Indemnification

You agree to defend, indemnify and hold harmless EukaPay and our suppliers, partners, licensors, dealers, representatives, associates or affiliates, and each of their respective employees, contractors, agents, representatives, shareholders, advisors, counsel, officers and directors and their respective heirs, administrators, executors, successors and assigns (collectively, the “EukaPay Parties”), from and against any and all claims, damages, obligations, losses, liabilities, interest, judgements, costs or debt, and expenses (including but not limited to legal fees and disbursements/) arising from, related to or in connection with: (a) your use of and access to the Website and the Services, including any act or omission by you or users of your account or any data or content transmitted or received by you; (b) your violation of any part of these Terms of Service, including without limitation your breach of any of your representations and warranties; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) any User Content that you submit to the Website or the Services including without limitation misleading, false, or inaccurate information; (f) your wilful misconduct; or (vii) any other party’s access and use of the Website or the Services with your unique username, password or other appropriate security code. You will co-operate as fully as reasonably required in the defence of any claim.

20. Disclaimers; No Warranties

1. The Website and the Services are provided on an “as is” and “as available” basis with all faults. Use of the Website and the Services is at your own risk. To the maximum extent permitted by applicable law, the Website and the Services are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from a EukaPay Party or through the Website or the Services will create any warranty not expressly stated herein. Without limiting the foregoing, the EukaPay Parties do not warrant that the content is accurate, reliable or correct; that the Website and the Services will meet your requirements; that the Website and the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Website and the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Website or the Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Website or the Services.

2. EukaPay does not warrant, endorse, guarantee, or assume responsibility for any product or site advertised or offered by a third party through the Website or the Services or any hyperlinked website or site, and EukaPay will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

3. We may, without prior notice, change the Website or the Services; stop providing the Website or the Services or features of the Website or the Services to you or to users generally; or create usage limits for the Website or the Services. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Website or the Services or any part thereof.

21. Assumption of Risk; Limitation of Liability

You also agree that to the maximum extent permitted by applicable law, in no event shall any EukaPay Party be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Website or the Services. Under no circumstances will any EukaPay Party be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Website, the Services or the information contained therein. To the maximum extent permitted by applicable law, EukaPay assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Website or the Services; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Website or the Services; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Website or the Services by any third party; (f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Website or the Services; and/or (g) User Content or the defamatory, offensive, or illegal conduct of any third party. You agree that if, notwithstanding the other provisions of these Terms of Service, a EukaPay Party is found to be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs, such EukaPay Party’s liability shall in no event exceed the amount you paid to EukaPay hereunder for the Services in the 6-month period prior to the event leading to such claim.

22. Limitations as Allowed by Law

Federal law, some states, provinces and other jurisdictions may not allow the exclusion and limitations of certain implied warranties, or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms of Service give you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms of Service will not apply to the extent prohibited by applicable law.

23. Set-off

EukaPay reserves the right to set-off any amounts that you owe to EukaPay, including for indemnification obligations, against amounts credited to your Account.

24. Record Keeping

1. To the extent required by applicable laws and regulations, EukaPay will maintain records of all documentation and information related to your Account for the duration that your Account is active and after your Account is closed.

2. As required by applicable laws and regulations, you are required to maintain all records needed to fulfill orders for goods or services and provide post-sale support to your Customers. EukaPay or its auditors, an appropriate regulator, or other relevant competent authority may request to obtain and inspect certain of your business records with reasonable advance notice or immediately if required by law, a regulator, or other relevant authority. If you refuse such a request, we reserve the right to suspend or terminate your Account.

25. Information Sharing

You hereby authorize us to share information about you, your Account and Account activity with law enforcement, regulators and government agencies.

26. Press Release

You hereby authorize us, without any notice to you, to publish a press release or other public announcement naming the Merchant and identifying that the Merchant is using the Services.

27. Non-Waiver

EukaPay’s failure or delay in insisting upon or enforcing strict performance of any provision of these Terms of Service shall not be construed as a waiver of any provision or rights. No waiver of any provision of these Terms of Service shall constitute a waiver of any other provision, nor shall any waiver of any provision of these Terms of Service constitute a continuing waiver unless expressly made in writing by us.

28. Severability

If any portion or provision of these Terms of Service shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of these Terms of Service, or the application of such portion of provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of these Terms of Service shall be valid and enforceable to the fullest extent permitted by law.

29. Governing Law; Jurisdiction; Dispute Resolution through Arbitration

1. These Terms of Service are entered into in the Province of Ontario and shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein. Subject to Section 26(b), you agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario or any other judicial district or jurisdiction as we may determine in any and all actions, disputes or controversies relating hereto. You further agree as follows: (i) any claim brought to enforce these terms and conditions must be commenced within two (2) years of the cause of action accruing; (ii) no recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and legal fees; and (iii) any claim must be brought individually and not consolidated as part of a group or class action complaint.

2. Any controversy, dispute, disagreement or claim arising out of, relating to or in connection with the Services, these Terms of Service or any breach hereof, including any question regarding its existence, validity or termination, shall be finally and conclusively resolved by arbitration under the Arbitration Act, 1991 (Ontario) (the “Act”). There shall be one (1) arbitrator selected in accordance with the Act. The parties to the arbitration shall equally share the fees of the arbitrator and the facility fees and the parties shall each bear their own legal costs and expenses of the arbitration; provided, that the arbitrator shall have the authority to award such fees, costs and expenses in the decision of the arbitrator. The arbitration shall be conducted in English. Any decision of the arbitrator shall be final and binding on the parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law. Notwithstanding the foregoing, EukaPay shall have the right to seek injunctive or other equitable relief, including in relation to the breach of confidentiality obligations or violation of the intellectual property set forth in these Terms of Service.

30. Entire Agreement; Language

These Terms of Service, including all other documents incorporated by reference herein, are binding and constitute the entire agreement between EukaPay and you with respect to your use of the Website and the Services. The parties agree that the English language will be the language of these Terms of Service and all documents in connection thereto, and each party waives any right (whether statutory or otherwise) to use and rely upon any other language, or translations. Il est de la volonté expresse des parties que tous les documents qui s'y rattachent soient rédigés en langue anglaise.

31. Surviving Provisions

Notwithstanding the expiration or termination of the Terms, those rights and obligations that are stated to or which by their nature are intended to survive such expiration or termination shall survive, including Sections 1-30.