MERCHANT GENERAL TERMS OF SERVICE

1                Introduction

These Merchant General Terms of Service (these “General Terms”), together with the Merchant Supplementary Terms (the “Supplementary Terms”), which by this reference are incorporated herein (together, the “Agreement”) are entered into between the merchant entity set out under Part A of the Supplementary Terms (“Merchant”, “you”, or “your”) and Afterpay Canada Limited (“we”, “us”, “our” or “Afterpay”) (each individually a “Party”, and collectively, the “Parties”) as of the date that the Supplementary Terms are accepted by you, or as of the date these General Terms are provided to you under Section 4 of these General Terms, as applicable (the “Effective Date”). Except as otherwise expressly provided by us in writing, the Parties agree that this Agreement supersedes any and all prior executed merchant agreements between the Parties with respect to the Afterpay Services. In the event of any inconsistency or conflict between the terms and provisions of these General Terms and the Supplementary Terms, the terms and provisions of the Supplementary Terms shall control. By authorizing this Agreement, you agree to be bound by its terms. If you have not authorized the Agreement prior to using the Afterpay Services, your use of the Afterpay Services shall constitute acceptance of the Agreement. All schedules to these General Terms are expressly made part of the Agreement.

2                Term

The Term of the Agreement is set out under Part B of the Supplementary Terms.

3                Afterpay Services

(a)             Extended Repayment Feature. The Afterpay Services allow Customers to pay for Goods offered by you using installment payment financing options we provide (the “Extended Repayment Feature”). Afterpay shall provide Extended Repayment Feature financing transactions to qualified Customers to facilitate the sale of Goods by you on your Website and in your Store (as applicable), as may be set out under Part C of the Supplementary Terms, or as otherwise agreed to in writing. With respect to each Extended Repayment Feature transaction with a qualifying Customer, we will disburse, or cause to be disbursed to you payment on behalf of that Customer for the Goods purchased from you in accordance with the terms of the Agreement, in exchange for payment of Fees set out under Part D of the Supplementary Terms and in accordance with Section 7 of these General Terms.

(b)             Documentation. You must complete and return to us all documentation required by Afterpay (including documents for our identity verification procedures and the Pre-Authorized Debit Authorization) which must be approved by Afterpay. You will not provide us with any information in connection with this Agreement that is false or misleading. We may suspend the Afterpay Services or suspend the Payment Date until such documentation is verified and approved by us. Afterpay may terminate this Agreement immediately if we cannot verify all documentation or if we do not approve you based on the documentation that we receive from you pursuant to this Section.

(c)             Cross Border Trade. Afterpay may, in its sole discretion, authorize you to use its Services for transactions relating to certain Customers located outside of Canada to allow those Customers to use their Afterpay Affiliate account to purchase Goods offered on your Website for delivery outside of Canada (“Cross Border Trade”). Where Afterpay authorizes you to engage in Cross Border Trade, you agree to be bound by the terms set out in Schedule 2 of these General Terms.

4                Changes to this Agreement

Afterpay may amend this Agreement from time to time with seven (7) days’ prior written Notice (as defined below) to you; the amended terms will be made available to you at least seven (7) days prior to the effective date. If you object to Afterpay’s amendments to this Agreement, you may terminate the Agreement before the effective date of such amendments through notice to Afterpay. By continuing to use the Afterpay Services without objecting to any amendments or new versions of any of the terms of this Agreement, you agree to and accept all terms and conditions of the amended Agreement, including any new or changed terms or conditions.

5                Consent to do Business Electronically.

(a)             Consent to Electronic Disclosures and Notices. By indicating your acceptance to this Agreement and/or signing up for a merchant account, you agree that such agreement and sign up constitutes your electronic signature, and you consent to the use of electronic signatures, electronic provision of all disclosures and notices from Afterpay (“Notices”), including those required by Applicable Law. You also agree that your electronic consent will have the same legal effect as a physical signature.

(b)             Methods of Delivery. You agree that we can provide Notices regarding the Afterpay Services to you through our website or through the Merchant Portal, or by mailing Notices to the email or physical addresses you have provided to us. Notices may include notifications about your merchant account, changes to the Afterpay Services or this Agreement, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within twenty-four (24) hours of the time a Notice is either posted to our website or emailed to you.

(c)             Requirements for Delivery. You will need a computer or mobile device, internet connectivity, and an updated browser to access the Merchant Portal and review the Notices provided to you. If you are having problems viewing or accessing any Notices, you must contact us so that we can find another means of delivery.

(d)             Withdrawing Consent. Due to the nature of the Afterpay Services, you will not be able to begin using the Afterpay Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating this Agreement.

6                Use of the Afterpay Services

6.1            General Terms

(a)             Availability. You will make Afterpay available for use by Customers on your Website and/or in-Store, as applicable, as soon as reasonably practicable. You must continue to allow Customers to make Afterpay Purchases for the duration of the Agreement, except: (i) during any period of suspension imposed by us in accordance with this Agreement; or (ii) as otherwise reasonably agreed by us.

(b)             Control of Website. The Parties agree that they control and will continue to control the content of their respective websites, mobile or tablet sites or applications, and will not provide Customers with any information about the Afterpay Services that is false, misleading, or inaccurate. You agree that you will not take any action to damage, intercept or interfere with our Services, software, or technology.

(c)             Merchant Portal. The individuals designated by you, as communicated by you to us in writing or via email will be granted access to the Merchant Portal. You must ensure that the appropriate role is assigned to each individual. You must not share access to the Merchant Portal other than those individuals that you identify to us in writing who will be granted access to the Merchant Portal in connection with this Agreement. Regardless of whether such third parties or individuals have been identified to us, you will be responsible for the actions of any third party or individual who accesses the Merchant Portal using the credentials assigned to any individuals referred to above.

 

(d)             Reserves. Afterpay reserves the right to change the Payment Date schedule, seek a certain amount of funds from you to set aside as a reserve, or withhold a certain any amount from the Purchase Amounts that may be payable to you for the purposes of setting aside as a reserve under the Agreement (“Reserves”), if Afterpay determines in its sole but reasonable discretion that there are concerns with the performance of your obligations under this Agreement. If we require a Reserve under this Agreement, we will communicate the terms of the Reserve to you, including the conditions upon which the funds in the Reserve will be released to you. We may change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with the performance of your obligations under such the Agreement.

(e)             Demonstration of Results. You agree, no more frequently than annually, to serve as a case study for Afterpay to demonstrate the performance of the Afterpay Services on your Website and/or in-Store. You agree to serve as a merchant reference upon our reasonable request, no more frequently than five (5) times a year, for other merchants considering whether to use our Services.

(f)              Insurance. You are responsible for ensuring that you have the appropriate insurance policies in place to protect your Delivery of the Goods to Customers. Afterpay will not be responsible for any damage caused to Goods during Delivery or any loss or damage caused in connection with the supply of Goods.

(g)             Technical Integration of Afterpay Gateway. You agree to follow reasonable directions from Afterpay regarding the technical integration of the Afterpay Gateway on your Website and/or in-Store (as applicable). You agree to represent the Afterpay tagline on the product page of all products where Afterpay is offered (where relevant and technically possible). If the Afterpay express checkout functionality is made available for technical integration (“Express Checkout”), you agree to integrate Express Checkout on your Website(s) where relevant and technically possible. You must obtain written approval from an authorized Afterpay representative if your implementation of the Afterpay Gateway deviates from the Brand Management Materials provided by Afterpay.

(h)             Display of Afterpay Materials on your Website or in Independent Marketing Activities. Afterpay may make available marketing assets and other promotional material that may be displayed on your Website or used in independent marketing activities. You agree to comply with any reasonable directions given by Afterpay to display or distribute promotional materials and any directions given by Afterpay to remove or cease distributing such promotional materials, or to change the manner in which they are displayed. As a condition of offering the Afterpay Services, you agree to: (i) include on your Website and/or in-Store (as applicable) a description of the Afterpay Gateway in such terms as may be otherwise provided or approved by us in writing; (ii) present such description as a ‘lightbox’ on your Website as may be provided or approved by us in writing from time to time (where relevant and technically possible); (iii) comply with any reasonable directions we give about how any description of the Afterpay Services or Afterpay are to be displayed on your Website and/or in-Store (as applicable); (iv) promptly, but in all cases within seven (7) days, comply with any reasonable direction we give you to modify, replace or remove any description of the Afterpay Services or Afterpay displayed on your Website and/or in-Store; and (v) not provide any description of the Afterpay Services or Afterpay which does not comply with Brand Management Materials, or has not otherwise been approved by us in writing. For the avoidance of doubt, other than preapproved materials provided by Afterpay, you agree that you will not use Afterpay’s name or product in marketing or promotional materials or on your Website without prior written approval from Afterpay.

(i)              Modification or Deletion of Afterpay Materials. If we are concerned that any content or promotional materials displayed on your Website or in-Store do not comply with Section 6.1(g) of these General Terms, we may request that you modify or delete the relevant content or materials or remove them from display. You must comply with any request made under this Section as soon as practicable and, at the latest, within seven (7) Business Days of the request, unless you can establish to our reasonable satisfaction within this time frame that the content or materials comply with the requirements of the Agreement. We have the right under Section 11 of these General Terms to suspend your access to the Afterpay Gateway if you breach these requirements, or if we reasonably suspect that you have breached them.

(j)              Restricted Goods. You must not, without our prior written permission, allow the Afterpay Services to be used via your Website(s) or Store(s) to purchase Restricted Goods as outlined in Schedule 1. Without limiting the preceding sentence, Afterpay reserves the right to prohibit you from offering the Afterpay Services for use by Customers to purchase goods or services which Afterpay considers in its reasonable discretion to be dangerous, inappropriate, or high risk.

(k)             Parity of Placement. Throughout the Term, you agree that anywhere our logo is displayed by you on your Website(s) and in your Stores (as applicable), you will display our logo in comparable size to or larger than the logo of any other any “buy now, pay later” or “pay by installments” electronic payment system, any service that allows customers to borrow money to fund purchases, or any other consumer finance service, including any such services offered by Visa, Mastercard or American Express.

6.2            Terms in Respect of Afterpay Purchases

(a)             Approval Confirmation. When a Customer makes an Afterpay Purchase using the Extended Repayment Feature, Afterpay’s systems will promptly issue an Approval Confirmation or decline to you. Afterpay exercises sole discretion regarding the decision to issue an Approval Confirmation or to decline a transaction. You must only Deliver or provide Goods to a Customer after you have received Approval Confirmation. Afterpay will have no liability to you for Goods Delivered or provided for which you have not received Approval Confirmation.

(b)             Delivery of Goods. Where a Customer makes an online Afterpay Purchase using the Extended Repayment Feature, you are responsible for ensuring that all Goods are Delivered to the Customer in accordance with Applicable Law, promptly, and within the expected Delivery period as represented to the Customer at the point of sale, and subject to Section 6.2(c) (Extended Delivery Goods) of these General Terms, up to a maximum of fourteen (14) days, or in the case of Goods that are services, such services to be Delivered within a maximum of ninety (90) days. Where a Customer makes an Afterpay Purchase in-Store, the Goods must be Delivered (or provided) to the Customer immediately after Approval Confirmation, unless you expressly agree to an alternative Delivery time with the Customer.

(c)             Extended Delivery Goods. Notwithstanding Section 6.2(b) above, provided that you charge at order across all tender types for the duration of the Term and we have authorized you to allow Customers to make an Afterpay Purchase on Extended Delivery Goods:

(i)              before the Customer completes their Afterpay Purchase for Extended Delivery Goods, you must, no later than the point of sale, notify the Customer that the Extended Delivery Goods are available on an extended delivery basis and that payment for the Afterpay Purchase will be taken at completion of the Afterpay Purchase, and provide an accurate Delivery period for the Extended Delivery Goods (“Extended Delivery Period”);

(ii)             if, prior to Delivery of Extended Delivery Goods, there is a material change to the Extended Delivery Period, you must notify the Customer of this change; and    

(iii)            you will Deliver Extended Delivery Goods to Customers within the Extended Delivery Period.

We will have no liability to you for any Extended Delivery Goods that you Deliver to the Customer after the Extended Delivery Period. For Afterpay Purchases that are Extended Delivery Goods, we reserve the right to (1) extend the Payment Date to up to seven (7) Business Days, (2) create a Reserve pursuant to Section 6.1(d) of these General Terms, and (3) in the event of non-Delivery of Extended Delivery Goods, seek a refund from you on any Purchase Amounts we have paid you as well as reimbursement of any chargeback fees we incur in connection with the relevant Afterpay Purchase. We reserve the right to remove the availability of the Afterpay Services for Extended Delivery Goods where we determine in our sole but reasonable discretion that doing so is necessary to comply with Applicable Laws or to avoid a higher than acceptable level of risk to Afterpay.

(d)             Non-Delivery of Goods. If we suspect that Goods have not been or will not be Delivered within the agreed upon time frame, we may ask you to provide us with proof of Delivery. If we make such a request, you agree to notify us via the Merchant Portal or by email of the shipping carrier name, tracking number and provide confirmation that the Goods were or will be Delivered to the address specified by the Customer when making the Afterpay Purchase (or for permitted services, provide proof of supply of the services). If you do not so provide this information within two (2) Business Days of our request, or otherwise demonstrate to our reasonable satisfaction that the Goods have been Delivered to the Customer in accordance with Section 6.2(b) of these General Terms or will promptly be delivered, then you agree to Refund to us any Purchase Amount we have paid you and reimburse us any chargeback fees we incur in connection with the relevant Afterpay Purchase. We may elect to be paid such amounts in accordance with Section 7.1(d) of these General Terms, and we may Refund to the Customer any amounts paid by the Customer to us in connection with the Afterpay Purchase.

(e)             Reimbursement. You must reimburse us any chargeback amounts (including associated chargeback fees or other costs incurred) and/or any part of the Sale Price and associated Shipping Costs that we cannot or do not recover from a Customer in connection with that Afterpay Purchase to the extent that we reasonably determine, based on evidence, the chargeback or Customer non-payment is because of:

(i)              any conduct (including false or misleading representations), contract, representation or warranty by you, your officers, directors, employees or sellers, relating to the Afterpay Services or an Afterpay Purchase;

(ii)             the Goods which are the subject of the relevant Afterpay Purchase (including, without limitation, any product liability or warranty claim relating to those Goods);

(iii)            the non-delivery of any Goods, late delivery of Goods, or damage to Goods caused during delivery, or a breach of your obligations under Sections 6.2(a), (b), or (c) of these General Terms; or

(iv)            a breach of your representations and warranties under Sections 13.1 and 13.2 of these General Terms.

Any reimbursement under this Section shall be limited to the Purchase Amount (plus any chargeback costs, if applicable) of any applicable Afterpay Purchase(s) impacted by the breach. You authorize us to collect such reimbursement via your Pre-Authorized Debit Authorization and set-off rights pursuant to Section 7.1(d) of these General Terms, including against any Purchase Amounts we hold in suspension under Section 7.1(g) of these General Terms.

(f)              Customer Disputes. The Parties agree to cooperate in good faith to promptly resolve all disputes raised by Customers with respect to Afterpay Purchases. To the extent any such Customer dispute results in a refund of the Purchase Amount to the Customer, Afterpay reserves the right to set off such Purchase Amount from you.

(g)             Surcharges. You must not increase the Sale Price or Shipping Costs, or otherwise charge a Customer any other fees, increase the overall cost to the Customer, reject a request for a return or Refund, or discriminate against the Customer in any way because the Customer elected to use the Extended Repayment Feature or any other Service offered under this Agreement.

(h)             Returns and Refunds. Your refund policies and agreements with a Customer must comply with Applicable Law. You must (i) consider any Customer’s request for Return in good faith and in accordance with your policies, (ii) process any Customer’s Returns in accordance with your policies, and (iii) not treat Afterpay Purchases differently than any other purchases with respect to accepting Goods for a Refund, exchange, repair, or store credit.

(i)              Customer Payments. You must not accept payments for any Goods on our behalf. If, for any reason, you receive any part of a payment relating to an Afterpay Purchase directly from a Customer (“Customer Payment”), you will promptly notify us of the details of the Customer Payment and hold the full amount of the Customer Payment for our benefit and promptly make a payment of an amount equal to the Customer Payment to Afterpay. 

(j)              Exclusivity. The exclusivity clause set out under Part E of the Supplementary Terms will apply.

(k)             Acknowledgement. You attest that your use of the Afterpay Services is for business purposes and not for personal, family or household purposes. You further attest that your use of the Afterpay Services is for business-to-consumer sales and not to facilitate Afterpay Purchases with another business, unless we explicitly permit you to do so. You acknowledge that the arrangement for the sale by you to Customers of any Goods is a separate consumer contract between you and each Customer and the Customer’s rights and remedies as a consumer in respect of that sale by you (including any Return of those Goods) are as between you and the Customer, to the exclusion of Afterpay.

7                Fees and Tax Matters

7.1            Fees, Billing and Payments

(a)             “Fees” are the fees for Services performed under this Agreement and must be made in Canadian dollars. With respect to each Afterpay Purchase, we will disburse, or cause to be disbursed to you payment on behalf of the Customer for the Goods purchased from you in exchange for payment of Fees set under Part D of the Supplementary Terms. You will pay Afterpay the Fee as outlined under Part D of the Supplementary Terms for each Afterpay Purchase due on the Payment Date. The Fee is not refundable unless paid incorrectly.

(b)             We will pay the Purchase Amounts to you on the Payment Date for such Afterpay Purchase, once daily, as a single transaction netting the aggregate Purchase Amounts for all Afterpay Purchases due to you on the Payment Date against all amounts then due to us under the Agreement, as described in this Section, including the Fee, any Refund Amounts, and Customer Payments. We will remit such amounts by direct transfer to your Account nominated on the Pre-Authorized Debit Authorization. We do not guarantee against any delays of receipt of Purchase Amounts caused by the banking system or other external factors.

(c)             You agree to pay all amounts owed to us when due pursuant to this Agreement. Your failure to pay amounts owed to us under this Agreement is a breach, and you will be liable for any costs or expenses we incur during collection, in addition to the amount you owe us.

(d)             Afterpay may (i) set off against any amounts we owe you under the Agreement all amounts you owe us under the Agreement (including, without limitation, the Fee, any Refund Amounts, and Customer Payments), (ii) debit your Account from time to time for the amounts owed to us under the Agreement and in accordance with the Pre-Authorized Debit Authorization, or (iii) collect or set off amounts owed to us under the Agreement from funds that we hold in Reserve pursuant to Section 6.1(d) of these General Terms. Any amounts that we set off or debit against payments owing to us shall nonetheless be treated as a payment from you to us for all tax, accounting, invoicing, and other relevant purposes.

(e)             You authorize us to initiate electronic credit and debit entries to your Account designated on your Pre-Authorized Debit Authorization for payment of amounts owing to us hereunder. If there are insufficient funds in your Account to pay Afterpay all sums when due, the full amount of such deficiency shall be immediately due and payable by you to Afterpay. You agree to reimburse us for any fees or charges incurred by us as a result of any transaction that is refused by your financial institution for insufficient funds (“NSF”). You understand and agree that the initiation and transmission of each debit and credit will be subject to, and will be made in accordance with the Rules of Payments Canada.

(f)              Your failure to pay amounts owed to us under this Agreement is a breach, and you will be liable for any costs or expenses we incur during collection, in addition to the amount you owe us.

(g)             Afterpay reserves the right to suspend the Payment Date or otherwise suspend the payment of Purchase Amounts to your Account should Afterpay determine, in its sole discretion, that your business presents a high level of risk, including but not limited to issues relating to non-delivery of Goods, excessive late delivery of Goods, excessive Customer complaints, excessive disputes or Refunds, Afterpay is unsuccessful in debiting your account designated by your Pre-Authorized Debit Authorization, Afterpay is unsuccessful in verifying, or does not approve you based upon, the documentation that you provide pursuant to Section 3(b) of these General Terms, you are subject to an Insolvency Event,  other suspicious activity associated with your use of our Services, or if required by Applicable Law or court order. For the avoidance of doubt, Afterpay reserves the right to deduct from the suspended Purchase Amounts any amounts you owe Afterpay under the Agreement, including your liability to Afterpay arising from Section 6.2(e) of these General Terms or a breach of your representations and warranties under Sections 13.1 and 13.2 of these General Terms. If we suspend the Payment Date for any reason, we will communicate the general reason for suspending the Payment Date and provide you with a timeline for releasing the funds.

7.2            Tax Matters

(a)             Taxes on Underlying Afterpay Purchases. You agree and acknowledge that Afterpay shall not be responsible for determining, or calculating, paying or remitting to the applicable Tax Authority any Taxes that may be assessed, incurred, or required to be collected, paid, reported, or withheld for any reason with respect to transactions or payments initiated by any Customer or otherwise in connection with Your use of the Afterpay Services or any Afterpay Purchase. In the event that a Tax Authority assesses additional Tax on any underlying transaction to Afterpay, you shall fully indemnify, defend, and hold Afterpay harmless against such Taxes and any other related expenses or costs. For the avoidance of doubt, Afterpay shall not be liable to you for any Taxes (or any charges similar to a Tax) assessed on or upon any Afterpay Purchase. Such limitation of liability shall cover assessments by any Tax Authority as well as any other indemnification claim.

(b)             Taxes on Fees and Services. The Fees payable by you to Afterpay as set forth in this Agreement are exclusive of any Taxes. You agree to pay any Taxes (other than any income Taxes of Afterpay) imposed in connection with the Fees or otherwise in respect of the Afterpay Services, unless you provide Afterpay with documentation satisfying the requirements under applicable law to establish that the otherwise applicable Taxes are not required to be charged. In the event that such Taxes are applicable, such Taxes shall be calculated by Afterpay, and presented to you as required under applicable Tax law, for payment to Afterpay. In addition, You agree to fully indemnify, defend and hold Afterpay harmless against any Tax imposed by a Tax Authority for failure to apply correct Taxes if such failure is a result of Your failure to provide Afterpay with the correct evidence to support your exemption from such Taxes.

(c)             Withholding Taxes. If applicable, Afterpay shall be entitled to deduct from any payments to you the amount of any applicable withholding Taxes with respect to amounts payable, or any other Taxes, in each case required to be withheld by Afterpay to the extent that Afterpay remits such Taxes to the appropriate Tax Authority on your behalf. Any amounts so deducted or withheld shall be treated as having been paid for all purposes of this Agreement and Afterpay will not be obliged to increase or gross-up any payment on account of any withholding of Tax. If Afterpay eliminates or reduces withholding Tax in accordance with any treaty or other Tax claim by you and a relevant Tax Authority determines a higher withholding Tax amount should have been paid than that which was withheld by Afterpay, then you agree to fully indemnify and hold Afterpay harmless for the full amount of such underwithholding as well as any related penalties, interest and other costs.

(d)             Tax Information Reporting. Afterpay may be obligated under applicable law to report certain information to Tax Authorities (“Tax Information”) and/or to you with respect to amounts payable to you under this Agreement. Prior to payment, you shall provide Afterpay with the necessary Tax forms, Tax identification details and other Tax documentation to complete any applicable Tax Information reporting and recertify such documentation from time to time, as may be required by applicable law. You acknowledge and agree that Afterpay will report to the applicable Tax Authority the required Tax Information. Afterpay also may, but is not obligated to, send to you the Tax Information reported.

(e)             No Tax Advice. You acknowledge that Afterpay is not providing any Tax advice and nothing Afterpay says or provides to you should be interpreted as such. For any Tax-related inquiries in connection with the Afterpay Services or this Agreement, you should consult your own Tax or legal advisor.

8                Obligations in Respect of Returns, Refunds and Chargebacks

(a)             Subject to this Section 8, if you accept Goods for Refund (“Accepted for Refund”), then any Refund Amount due in relation to the Return is owed by you to Afterpay and not the Customer. Within three (3) Business Days of your receipt of returned Goods, as you define receipt under your internal policies and in accordance with Applicable Law, you must inform us of the Return and the Refund Amount via the Merchant Portal or the associated API. All Afterpay Purchases that are Accepted for Refund in whole or in part must, subject to this Section, be refunded via the Afterpay payment method. We reserve the right to hold you liable for the Purchase Amount associated with the Goods Accepted for Refund if they are refunded via another tender type.

(b)             When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount on the applicable Payment Date, and we may recover those sums in accordance with Section 7.1(d) of these General Terms (or, where we have not yet paid the Purchase Amount to you, by way of set-off by deducting the Refund Amount from the Purchase Amount relating to those Goods). Afterpay will then cancel any future payments due by the Customer to Afterpay and/or Refund to the Customer any amounts paid to Afterpay.

(c)             For Returns processed more than one hundred twenty (120) days after the date on which Approval Confirmation was provided or for Returns processed more than sixty (60) days after the termination of the Agreement, to the extent Afterpay, in its sole discretion, permits any Returns after the termination of the Agreement, the terms of this Section 8 shall not apply, and Afterpay shall have no liability to you with respect to such Returns. You must deal directly with the Customer with respect to such returns and the associated Refund and process such Refund via another tender type. Without limiting this Section 8(c), any assistance we may provide to you to effect payments to Customers for any Refunds for such Goods, including providing assistance outside of the time period stated in this Section 8(c), shall be at our sole discretion.

9                Confidentiality

(a)             Except as permitted or required by the Agreement, each Party must not use or disclose any of the other Party’s Confidential Information.

(b)             Each Party may disclose the Confidential Information of the other Party: (i) when required to do so by Applicable Law or any regulatory authority of competent jurisdiction (provided that the first Party provides the other Party with reasonable prior written notice of such disclosure, if legally permitted, to allow such Party adequate opportunity to seek a protective order preventing or limiting the disclosure) or registered stock exchange offering either Party’s securities; (ii) to a director, officer, employee, agent, contractor, professional adviser, investor or financing source (or potential investor or financing source) of the first Party whose duties reasonably require such disclosure, provided such person has agreed to keep the information confidential; and (iii) with respect to Confidential Information of the merchant provided in connection with a specific Afterpay Purchase or Customer, Afterpay may use such information to process transactions, service Customer accounts, and otherwise in accordance with Afterpay’s or its Affiliates’ privacy policies in any applicable jurisdiction.

(c)             Each Party must take all reasonable steps to ensure that no Confidential Information of the other Party is used, directly or indirectly, in any way that is detrimental or adverse to the other Party and that each person to whom any Confidential Information of the other Party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments.

(d)             Each Party must take steps no less rigorous than those which it takes in respect of its own information (but in no event less than a reasonable degree of care) to prevent any unauthorized use, disclosure or loss of, or unauthorized access or damage to, the Confidential Information of the other Party under its possession or control.

(e)             With respect to Confidential Information of Afterpay provided to Merchant, Merchant may use such information solely to facilitate an Afterpay Purchase and represents and warrants that it shall comply with applicable Privacy Laws.

(f)              Any and all Confidential Information disclosed by one Party and received by the other Party prior to the Effective Date will be subject to the obligations set out in this Section 9.

10             Intellectual Property

(a)             Except as expressly provided herein, nothing in the Agreement shall confer to either Party or any of its Affiliates any right of ownership in any of the Intellectual Property of the other Party.

(b)             We hereby grant to you a limited, fully-paid, non-exclusive, non-transferable, non-sublicensable, revocable limited license, during the Term, to use the Afterpay Marks, Afterpay Gateway, Merchant Portal, and Afterpay Software, in each case, solely in connection with your use of the Afterpay Services as defined herein and otherwise carrying out your rights and privileges hereunder. You must not copy, modify, alter, amend, supply to any third party or use for any other purpose any Afterpay Intellectual Property without our express prior written consent. Subject to Sections 8(c) and 12.3(a) of these General Terms, on termination of the Agreement, you must: (i) permanently delete all copies of the Afterpay Software in your possession or control, (ii) as soon as reasonably practicable discontinue the use or display of any Afterpay Intellectual Property, and (iii) dispose of any works embodying any Afterpay Intellectual Property. Without limiting this Section, if these General Terms are amended to remove your right to offer the Afterpay Gateway online or in-Store, you must immediately discontinue the use or display of any Afterpay Intellectual Property associated with the discontinued right.

(c)             You shall use the Afterpay Marks only in accordance with the design, description and/or appearance of the Afterpay Marks as presently used by us. You may not change or modify the Afterpay Marks. You agree to abide by any reasonable guidelines provided by us from time to time in connection with the use of the Afterpay Marks. You further agree that any products or services promoted in association with the Afterpay Marks meet or surpass the standards set by us and conveyed to you from time to time for the character and quality of such products and services. The initial standard for such products and services is the nature, standard and quality of the same or equivalent products and/or services provided by us up to and including the date hereof in association with the Afterpay Marks. At our request, you shall provide to us for our review, comment and approval, samples of such products and sample copies of materials associated with such products or used to advertise/promote the products on which the Afterpay Marks appear and the services promoted and provided in association with the Afterpay Marks.

(d)             You hereby grant Afterpay a fully-paid, non-exclusive, non-transferable limited license, during the Term, to use your legal name or trade name in the user flow associated with the Extended Repayment Feature. You shall retain all Intellectual Property rights in such name. Other than the foregoing license rights, Afterpay shall not obtain any right, title, or other interest in or to your name by virtue of the Agreement. Upon the earlier of the expiration or termination of the Agreement, all license rights conveyed by you to Afterpay shall cease, and all such rights shall revert to you.

(e)             You grant Afterpay and its Affiliates during the Term a non-exclusive, non-transferable, revocable and royalty free license to use your name, logo, and details of your Website in our marketing materials and channels, including, without limitation: in directory listings of Afterpay’s merchants; product listings; email marketing; social media marketing; and affiliate network marketing. You also grant Afterpay and its Affiliates during the Term a non-exclusive, non-transferable, revocable and royalty free license to use one or more image(s) of our choosing from your Website in our marketing materials and channels. You agree to obtain on our behalf any third-party consents or licenses required to enable us to use any such image as contemplated by the Agreement, without attribution and without charge to us. If you notify us that you would like your name, logo, and/or details of your Website removed from this marketing material, or would prefer us to use a different image, we will do so as soon as reasonably practicable.

11             Suspension

(a)             In addition to our rights in the Agreement, we may suspend your access to the Afterpay Services, including ability to process Refunds and withhold Purchase Amounts, by giving you written notice if: (i) Afterpay is unsuccessful in verifying, or does not approve you based upon, the documentation that you provide pursuant to Section 3(b) of these General Terms, (ii) you have breached any provision of the Agreement; (iii) you undergo a change of ownership or control and we are unable to verify your new ownership or we are prohibited from doing business with you under Applicable Law; (iv) it is necessary to protect our systems or the Afterpay Services against harm, including but not limited to fraud or malicious activity; (v) you are subject to an Insolvency Event; (vi) Afterpay is unsuccessful in debiting your Account pursuant to the Pre-Authorized Debit Authorization; or (vii) we reasonably believe that continuing to provide the Afterpay Services is in breach of Applicable Laws or our internal policies or procedures.

(b)             Any suspension will remain effective until the reason for the suspension has been remedied. Without limiting your other obligations under the Agreement, while any suspension is effective, you must, as soon as reasonably practicable, comply with all reasonable directions that we give regarding your advertisement and offer of the Afterpay Gateway, including your use of Afterpay Intellectual Property.

12             Termination

12.1         Termination for cause

(a)             Either Party may terminate the Agreement immediately (or from such other date as it may nominate) by giving the other Party written notice of termination if: (i) the other Party materially breaches any provision of the Agreement, and either such breach is incapable of remedy, or the other Party has failed to remedy such breach within fourteen (14) days of the date of a written notice issued to it by the Party requiring remedy of the breach; (ii) the other Party engages in any fraudulent activity or conduct; (iii) the other Party is unable to perform its obligations as a result of a Force Majeure event, and such event continues for a period of thirty (30) days; or (iv) the other Party experiences an Insolvency Event.

(b)             In addition, we may terminate the Agreement immediately by giving you written notice of termination if: (i) we are unable to verify your Pre-Authorized Debit Authorization details or identity verification documentation, or we do not approve you based upon the documentation you provide, pursuant to Section 3(b) of these General Terms, (ii) we reasonably believe that your consumer agreements with Customers or other interactions with Customers do not reflect the original basis of our contracted agreement (including, without limitation, where you change your policies in any way that affects the ability of any Customer to Return any Goods in the manner intended under the Agreement); (iii) we reasonably believe that you have breached any of your representations and warranties in Sections 13.1 and 13.2 on a repeated basis; (iv) you are offering for sale or selling Restricted Goods or Services through your Website or in-Store without prior written permission from Afterpay; (v) the Monthly Default Rate is 4% or higher; (vi) you undergo a change of ownership or control and we are unable to verify your new ownership or we are prohibited from doing business with your new owner under Applicable Law; (vii) Afterpay ceases providing the Afterpay Services, including the Extended Repayment Feature as contemplated under the Agreement; or (viii) we are unsuccessful in debiting your Account pursuant to the Pre-Authorized Debit Authorization and any such default remains uncured for more than five (5) Business Days.

12.2         Termination for convenience

(a)             Either you or we may terminate the Agreement for any reason by giving at least fourteen (14) days’ prior written notice.

(b)             To the extent that Part B of the Supplementary Terms includes an “Initial Term”, Section 12.2(a) of these General Terms will not apply during such Initial Term.

12.3         Consequences of termination

(a)             Termination of the Agreement does not affect any right or obligation which arose under the Agreement before such termination and is without prejudice to the Parties’ other rights and remedies. Afterpay, in its sole discretion, may permit or require Returns processed within sixty (60) days following the termination of the Agreement to be processed via the Afterpay tender type in accordance with Section 8(c). For the avoidance of doubt, Afterpay’s rights under Section 6.2(i), 7.1(d) and 7.1(e) of these General Terms continue in relation to Customer Payments received by you, and all Refunds approved by you, after termination.

(b)             Upon termination of the Agreement for any reason, all rights and licenses granted under the Agreement will terminate immediately, except as expressly provided in the Agreement, and you must immediately cease using all Afterpay Intellectual Property, including by removing all references to Afterpay from your Website and in-Store.

(c)             Without limiting the other provisions of the Agreement, Sections 6.2(f), 6.2(i), 7.1(d), 7.1(g), 7.2, 8, 9, 12.3, and 13 of these General Terms, and any other provisions of the Agreement which by their nature are required to survive termination of the Agreement, will survive termination.

13             Warranties, Liability, and Indemnity

13.1         Mutual Representations and Warranties:

(a)             Each Party makes the following representations and warranties to the other:

(i)              it has full power and authority to enter into and perform its obligations under the Agreement and the Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms;

(ii)             to the best of its knowledge, the consummation of the Afterpay Services and the obligations and rights otherwise described in the Agreement shall not result in the material breach of or constitute a default under any contract or agreement to which it is currently a party or to which it becomes a party in the future;

(iii)            it is not insolvent, in bankruptcy proceedings, in receivership or engaged in or threatened with any litigation or arbitration or other legal (including regulatory enforcement) proceedings or investigations of any kind which would have an adverse effect on its ability to perform its obligations under the Agreement;

(iv)            it is and will continue to be throughout the Term of the Agreement a legally existing business entity, authorized to do business in each Canadian province and territory in which it carries on business; and

13.2         Your representations and warranties

(a)             You represent and warrant to us that:

(i)              you conduct business in material compliance with all Applicable Laws and hold all required business registrations and other qualifications, licenses or certifications in each Canadian province and territory in which you are doing business. If you are a sole proprietor, you are at least the age of majority in the jurisdiction where you reside;

(ii)             all information you provide with the Pre-Authorized Debit Authorization or otherwise provide to us is complete, current, and correct;

(iii)            the person who completed the Pre-Authorized Debit Authorization and entered into the Agreement, in each case, on your behalf was duly authorized to do so and to bind you; and

(iv)            you will comply with Applicable Laws in your use of the Afterpay Services.

(b)             You make the following warranties to us in relation to each Afterpay Purchase:

(i)              neither you nor your employees or agents will engage in any fraudulent or misleading conduct in connection with the Afterpay Purchase;

(ii)             each Afterpay Purchase will represent a bona fide sale of the Goods by you in the ordinary course of your business;

(iii)            you will provide us with complete purchase information with respect to each Afterpay Purchase;

(iv)            you will Deliver or arrange for Delivery of, all the Goods involved in the Afterpay Purchase in accordance with the terms of this Agreement;

(v)             in relation to each Afterpay Purchase, the purchase, and the terms and conditions associated with the Goods involved in the Afterpay Purchase will comply with Applicable Law;

(vi)            in relation to Goods that are goods: (i) the Customer will have, title to the Goods listed and clear of all encumbrances, liens and claims; (ii) the Goods, at the time they are Delivered to the Customer, will be of merchantable and acceptable quality; (iii) the Goods will materially match any sample or demonstration model shown to the Customer; (iv) the Goods, at the time they are Delivered to the Customer, are fit for any particular purpose which the Customer communicated to you, your agents or employees;

(vii)           in relation to Goods that are services: (i) the Goods will have, or will be, provided with due care and skill; (ii) the Goods will be Delivered within the agreed time frame, or within a reasonable time frame if no time has been agreed for provision of the Goods, up to a maximum of ninety (90) days from the date of the Afterpay Purchase; and (iii) you will inform the Customer that the Customer will be charged for the Goods at the time the Customer makes an Afterpay Purchase, and not at the time the Goods are Delivered;

(viii)          you will not, without prior written permission from Afterpay, allow the Afterpay Services to be used to purchase Restricted Goods or Services as outlined in Schedule 1 to these General Terms via your Website or in-Store using the Afterpay Services;

(ix)            you will not seek or obtain, any special arrangement or condition from, nor discriminate in any way against, the Customer with respect to the terms of any Afterpay Purchase; and

(x)             you will not do anything to prevent any amounts owing to us in connection with an Afterpay Purchase from being valid and enforceable against the relevant Customer.

13.3         Limitation of Liability and Warranty Disclaimer

(a)             If you grant Afterpay, including any employee or agent of Afterpay, access to your system, Website, platform, code base or other technology, for any purpose related to the Afterpay Services including, but not limited to, integration of computer code, other technology, content, images or marketing materials, you acknowledge and expressly agree that Afterpay will have no liability for any damage, interruption, errors or other loss related to your system, Website platform, code base or other technology that may be caused by the acts or omissions of Afterpay including but not limited to any forms of liability or damages enumerated in Section 13.3(b) below.

(b)             To the extent not prohibited by law, under no circumstances shall we, our subsidiaries, partners, or Affiliates, be liable to you for personal injury or any indirect, incidental, consequential, special or exemplary damages, loss of profits, loss of revenue, loss of sales or business, loss of agreements or contracts, loss or damage to goodwill, loss of use or corruption of software, data or information arising from or relating to the Agreement, the use of or inability to use the Afterpay Services, the Afterpay Gateway or the Merchant Portal, or our or your liabilities to third parties arising from any source. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS SECTION MAY NOT APPLY TO YOU.

(c)             To the extent not prohibited by law, the aggregate liability of us and our Affiliates and suppliers to you for all claims arising out of or related to the Agreement or your use or inability to use the Afterpay Gateway or the Merchant Portal, will not (other than as may be required by Applicable Law in cases involving personal injury) exceed $5,000. These limitations will apply even if the above stated remedy fails of its essential purpose. For the avoidance of doubt, this does not limit Afterpay’s obligations to pay you any Purchase Amount due to you under the Agreement.

(d)             ALL SERVICES PROVIDED BY OR ON BEHALF OF AFTERPAY HEREUNDER AND ALL LICENSES TO AFTERPAY MARKS, AFTERPAY GATEWAY, MERCHANT PORTAL, AFTERPAY SOFTWARE AND AFTERPAY INTELLECTUAL PROPERTY, ARE PROVIDED OR LICENSED, AS APPLICABLE, ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. AFTERPAY AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION, THE CONTINUED AVAILABILITY OF THE AFTERPAY SERVICES GENERALLY OR TO CUSTOMERS IN ANY PARTICULAR GEOGRAPHICAL AREA, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

13.4         Indemnification

Without prejudice to any other rights we have under the Agreement or under Applicable Law, you agree to release, indemnify and hold harmless us, our Affiliates, and our respective officers, directors, employees and agents from and against any third-party claims, liabilities, damages, taxes, losses and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way related to: (i) any Goods (including, without limitation, any claim by the Customer relating to a warranty or the quality or non-delivery of the Goods); (ii) any conduct (including false or misleading representation, negligence or fraud), transaction, contract, representation, warranty or other relationship, actual, asserted or alleged by you, your officers, directors, employees or agents relating to an Afterpay Purchase, Goods, or any related matter or any inaccuracy in Tax Information provided hereunder; or (iii) your violation of Intellectual Property rights of a third party.

14             General

14.1         Notices

(a)             Unless otherwise specified in the Agreement, any notices to be given hereunder to any other Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if sent by electronic mail, as follows:

(i)              if to Afterpay: [email protected] (or an email address otherwise notified to you by Afterpay)

(ii)             if to you, to the address you provide through the Merchant Portal or to any email address you provide to us.

14.2         Relationship of the Parties

Afterpay is serving as an independent contractor to you under the Agreement. Nothing in the Agreement, including the method of computing compensation, shall be deemed or construed to create a relationship of partnership or joint venture between the Parties or any relationship other than independent parties contracting for services. Neither Party has nor shall either Party hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other Party.

14.3         Governing Law, Arbitration, Jurisdiction and Disputes

(a)             Disputes. If any dispute arises under the Agreement, the Parties agree to seek to resolve the dispute in good faith within thirty (30) days’ written notice of such dispute. No action, suit, arbitration or other proceeding may be commenced before the Parties have attempted to resolve the dispute pursuant to this provision, unless injunctive relief is sought.

(b)             Governing Law and Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without regard to its conflicts of laws principles. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by binding, confidential, arbitration by a sole arbitrator in an arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The arbitration shall be seated in Vancouver, British Columbia and the language of the arbitration shall be in English. The Parties mutually acknowledge and agree that they will not raise, in connection with any proceeding brought in British Columbia, any defense or objections based upon lack of personal jurisdiction, improper venue, inconvenience of forum or the like. In the event that any proceeding is brought to determine or enforce the rights of any Party to the Agreement, the prevailing Party shall be entitled to recover reasonable legal fees, costs, and expenses from the other Party, including expert witness fees. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFTERPAY AND YOU EACH HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF THEM WILL HAVE TO RECEIVE A TRIAL BY JURY WITH RESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH MAY ARISE OUT OF THE AGREEMENT OR THE SUBJECT MATTER HEREOF. 

14.4         Miscellaneous

(a)             Entire Agreement. This Agreement, including these General Terms, together with the Supplementary Terms, and all Schedules, Exhibits or Addenda attached hereto, constitute and contain the entire agreement between you and us with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements, unless otherwise expressly provided by us in writing. You and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

(b)             No Waiver. A failure to exercise or a delay in exercising any right, power or remedy under the Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that wavier unless made in writing.

(c)             Construction. The headings of the sections of the Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of the Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be used in the construction or interpretation of the Agreement, including any Exhibits, Schedules or Addenda attached hereto.

(d)             Severability. If any provision of the Agreement (or any portion thereof) is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of the Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable to the fullest extent permitted by Applicable Law, as though said invalid or unenforceable provision (or portion thereof) were not contained in the Agreement.

(e)             Transfers or assignments. You may not transfer or assign any rights you may have under the Agreement without our prior written consent, not to be unreasonably withheld. We may transfer or assign this Agreement, and any right under the Agreement, to a third party, and we will notify you in advance of such a transfer or assignment.

(f)              Counterparts; Electronic Signatures. Each of these General Terms and the Supplementary Terms may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in the Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of these General Terms, the Supplementary Terms, or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission, by electronic mail in portable document format (.pdf) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document will have the same effect as physical delivery of the paper document bearing an original or electronic signature.

(g)             Third Party Beneficiaries. Except as may be expressly provided or incorporated by reference in the Agreement, no provision of the Agreement is intended nor shall it be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any person or entity other than the Parties hereto.

15             Definitions

Terms in these General Terms that are capitalized but not otherwise defined above or in the Supplementary Terms have the following meanings:

Accepted for Refund means, in respect of any Goods that are Returned to you, your acceptance of those Goods for Refund.

Account means your bank account held at your financial institution from which you authorize Afterpay to debit funds under the Pre-Authorized Debit Authorization.

Affiliate means a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with the respective Party. For the purposes of this agreement, control shall mean ownership (directly or indirectly) of at least 50% either (i) of the voting shares or similar voting instruments or the combined voting power in an entity or association or the power to direct or cause the direction of the general management or policies of an entity or (ii) the total value of all stock, capital interest, or profits interest in such entity or association.

Afterpay Gateway means the Afterpay electronic payment gateway system, which allows participating merchants to offer Customers the Extended Repayment Feature.

Afterpay Intellectual Property means Intellectual Property owned or licensed by Afterpay, excluding any Intellectual Property owned by you and licensed to Afterpay pursuant to this Agreement.

Afterpay Marks means the trademarks, service marks, trade names, logos and other commercial and product designations of Afterpay including the domain name www.afterpay.com and other proprietary materials identified by Afterpay for use in its Services or on the Website.

Afterpay Purchase means a purchase by a Customer of any Goods via your Website or in-Store for the amount specified in the Approval Confirmation, for supply in-Store or delivery to a location in Canada, using the Extended Repayment Feature and for which Afterpay has provided Approval Confirmation to you.

Afterpay Services means our provision of the Extended Repayment Feature to you for the use of your Customers in Canada as contemplated by the Agreement, including but not limited to access to the Afterpay Gateway and the Merchant Portal provided by Afterpay.

Afterpay Software means the software provided by Afterpay to you pursuant to the Agreement.

Applicable Law means (i) all applicable federal, provincial, territorial, local and administrative laws, rules, regulations and interpretations, including, without limitation, applicable provincial consumer protection laws, rules and regulations and Privacy Laws; (ii) the by-laws, rules, regulations, operating letters and policies, operating manuals and cardholder data security standards of the payment card networks; (iii) all data security standards and programs established by the Payment Card Industry Data Security Standards Council relating to, among other things, transactions, cards or in any other way applicable to this Agreement; and (iv) any applicable rule or requirement of Payments Canada or any guidance, directives, orders, rulings of any governmental or regulatory authority having jurisdiction over either Party or the Afterpay Services, as any or all of the foregoing may be amended, revised or replaced from time to time.

Approval Confirmation means electronic notice from us to you that an Afterpay Purchase has been approved by us.

Brand Management Materials mean the Afterpay brand, logo, electronic banners, lightboxes, Website integration, point of sale materials, marketing guidance and any other marketing, advertising, and promotional materials that Afterpay provides to Merchants from time to time.

Business Day means a day other than a Saturday, Sunday, or bank holiday in Canada.

Confidential Information means the terms of the Agreement, trade secrets, or proprietary business information, and any information (of whatever form and nature) disclosed by a Party to the other Party, but Confidential Information does not include information which: (i) at the time of the first disclosure to a Party, was already in the lawful possession of (or was prior to disclosure known by) the receiving Party; (ii) is or becomes public through lawful means otherwise than by disclosure in breach of the Agreement; (iii) becomes available to a Party legitimately without confidential or proprietary restrictions from any other third-party source that is legally entitled to that information without an obligation of confidentiality; or (iv) is or was independently developed by employees or agents of the receiving Party who had no access to any Confidential Information and as a result of such Party’s own internal efforts without the direct or indirect use of any Confidential Information of the disclosing Party.

Customer means a person who buys Goods from you via your Website or in-Store using the Extended Repayment Feature.

Customer Payment has the meaning given to it by Section 6.2(i) of these General Terms.

Delivered means, in the case of Goods that are goods, delivered; and, in the case of Goods that are services, supplied, and Delivery and Deliver have corresponding meanings.

Effective Date has the meaning given in Section 1 of these General Terms.

Extended Delivery Goods means Goods that will be Delivered: in respect of Goods that are goods, more than fourteen (14) days after Approval Confirmation; and in respect of Goods that are services, more than ninety (90) days after Approval Confirmation.

Extended Delivery Period has the meaning given in Section 6.2(c).

Extended Repayment Feature has the meaning given in Section 3(a) of these General Terms.

Fee means the fee set out in Part D of the Supplementary Terms.

Force Majeure means, to the extent it is beyond the reasonable control of a Party, any act of God, lightning, storm, flood, fire, earthquake, explosion, cyclone, tidal wave, landslide, or adverse weather conditions; act of public enemy, war (declared or undeclared), terrorism, sabotage, revolution, riot, strike, insurrection, or epidemic; and embargo, power or water shortage.

Goods means the item(s) or service(s) supplied by you to a Customer who elects to use the Extended Repayment Feature  to purchase those items and/or services.

Insolvency Event means an event where one Party (i) voluntarily or involuntarily  commences (or is the subject of, as the case may be) any proceeding or files any petition, application or motion seeking relief under  the Companies’ Creditors Arrangement Act (Canada), Bankruptcy and Insolvency Act (Canada) or any other Federal, provincial or foreign bankruptcy, insolvency, liquidation, arrangement or similar law, provided that where such proceeding is involuntary, it is not dismissed within sixty (60) days following commencement thereof, (ii) applies for or consents to the appointment of a receiver, receiver and manager, sale agent, trustee, custodian, administrator, sequestrator or similar official in respect of such Party or a substantial part of its property, assets or undertakings, (iii) makes a general assignment for the benefit of creditors, (iv) files a proposal or notice of intention to file a proposal, (v) commences the winding up or liquidation of its business, affairs, property or assets (vi) takes any corporate action or step for the purpose of effecting any of the foregoing, (vii) is unable to meet its obligations as they generally become due, or (viii) has liabilities which exceed the value of its assets.

Intellectual Property means all (i) trademarks, service marks, and other indications of origin, and all goodwill associated therewith and all applications, registrations and renewals associated with the foregoing; (ii) inventions, discoveries and ideas (whether patentable or unpatentable and whether or not reduced to practice), and all patents, patent rights, applications for patents (including, without limitation, divisions, continuations, continuations-in-part and renewal applications), and any renewals, extensions or reissues thereof; (iii) trade secrets, know-how, Confidential Information, and other proprietary rights and information; (iv) copyrights and works, including works of authorship, whether copyrightable or not and all applications, registrations, renewals and extensions in connection therewith (whether presently available or subsequently available as a result of intervening legislation); (v) designs, industrial designs and design patents and applications and registrations thereof; (vi) domain names; (vii) databases; and (viii) all other intellectual property and other proprietary rights.

Merchant Portal means the online interface provided to you by us which is accessible via our website.

Monthly Default Rate means, at any point in time, the total value of losses Afterpay incurs for Customer non-payment of Afterpay Purchases occurring on your Website(s) and in your Store(s), as applicable, in a single calendar month for which the Customer’s payments to Afterpay are overdue divided by the total value of Afterpay Purchases occurring on your Website(s) and in your Store(s), as applicable, during that calendar month.

Party or Parties has the meaning given in Section 1 of these General Terms.

Payment Date means for Purchase Amounts and Fees, up to five (5) Business Days immediately following the date of the Afterpay Purchase; for Refund Amounts, including Shipping Costs, the Business Day following the day on which the Goods are Accepted for Refund and you enter the Refund of the Goods to the Afterpay payment type.

Pre-Authorized Debit Authorization means the authorization you grant us, by providing us with your bank account details (including bank account name, bank transit number, and bank account number) to debit or credit your Account in accordance with the terms of this Agreement. This authorization may also be granted to us through your submission of your bank account details through our merchant onboarding form on the merchant onboarding portal.

Privacy Laws means the Personal Information Protection and Electronic Documents Act (Canada), as amended or supplemented from time to time, and any other Canadian federal or provincial legislation now in force or that may in the future come into force governing the collection, use, disclosure and protection of personal information in the private sector applicable to either Party or the Afterpay Services.

Purchase Amount means, in respect of each Afterpay Purchase, the relevant Sale Price plus any Shipping Costs.

Refund means a partial or whole refund of the Sale Price for any Goods Accepted for Refund and/or of any related Shipping Costs.

Refund Amount means the amount that you agree to Refund to a Customer for Goods Accepted for Refund according to your policies or other amount that you agree to Refund to a Customer.

Restricted Goods or Services has the meaning given in Schedule 1 to these General Terms.

Return means the return of any Goods to you by a Customer in connection with an Afterpay Purchase (and other than a return of Goods by the Customer for the purposes of an exchange, the grant of store credit or for repair) initiated by the Customer.

Sale Price means the purchase price (including all applicable taxes) of the Goods supplied by you.

Shipping Costs means any fees, costs or expenses charged by you to a Customer for the Delivery of Goods purchased through the Afterpay Services to the address specified by the Customer when making the Afterpay Purchase.

Store(s) means any physical location in Canada at or from which you supply the Goods or conduct transactions for the supply of the Goods.

Taxes means any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods and services tax or similar taxes, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority.

Term has the meaning given to it under Part B of the Supplementary Terms.

Website means any electronic retail sales facility (including any website and mobile or tablet sites or applications) owned and operated by you, including the websites listed under Part C of the Supplementary Terms.

 

Schedule 1

 

Restricted Goods or Services

1.              Gift cards, open loop cards or reloadable debit cards, payment cards that can be used at any location that accepts cards authorized by the payment card’s network. Cash or cash equivalents;

2.              Goods or services that infringe third-party Intellectual Property, including (without limitation) counterfeit goods and pirated content;

3.              Dangerous goods, being goods that cause damage, harm or injury, including (without limitation), recreational drugs or derivatives from drugs (chemical or herbal), psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or other harmful products, tobacco e-cigarettes, and vaping products;

4.              Adults goods, online streaming services and other content formats deemed offensive or of a sexual nature;

5.              Alcoholic beverages;

6.              Gambling or gambling-related content;

7.              Prescription drugs, regulated products, illegal drugs and testosterone boosters or sexual enhancement products;

8.              Products that enable dishonest behaviour, including (without limitation) hacking software or instructions, fake documents and academic cheating products;

9.              Services in the following categories: pay-to-remove services; no-value-added services; “experiences”; financial services; ticketing services; software services; health services; automotive services; cleaning services and other personal services; and

10.            Without limiting the above, any goods or services which are required by law to be sold to Customers over the legal age of majority in the Canadian province or territory in which such Customer resides.

Schedule 2

 

Cross Border Trade Terms

(a)                 If Afterpay authorizes you to carry out Cross Border Trade under Section 3(c) of the General Terms, this Schedule 2 applies and will form part of your obligations under the Agreement;

(b)                 All references in this Agreement to “Afterpay Purchase” shall also include Cross Border Transactions and apply as it would in relation to any Afterpay Purchase;

(c)                 Afterpay may, at its own discretion, authorize locations outside Canada where you may allow Cross Border Transactions. The limitations on the purchase of Goods from, and the delivery of Goods to, territories outside Canada do not apply for Cross Border Transactions;

(d)                 Subject to Section 6.2(c) (Extended Delivery Goods) of the General Terms and in accordance with Section 6.2(b) (Delivery of Goods) of the General Terms, you must ensure that all Goods are Delivered to the Customer promptly, and within the expected Delivery period as represented to the Customer at the point of sale, and in the case of Goods that are goods, up to a maximum of twenty-one (21) days (where shipping must occur within ten (10) days), or in the case of Goods that are services, up to a maximum of ninety (90) days, if it is a Cross Border Transaction;

(e)                 You are responsible for arranging Delivery of all Cross Border Transactions and for any and all additional costs and charges (including without limitation any applicable taxes, duties, delivery charges and other applicable amounts) associated with any Cross Border Transaction;

(f)                  You must ensure that any and all additional costs and charges associated with a Cross Border Transaction (including without limitation any applicable taxes, duties, delivery charges and other applicable amounts) charged by you to the Customer with respect to a Cross Border Transaction are included in the Sale Price and Shipping Costs (as applicable) or are otherwise clearly represented to the Customer prior to the point of purchase;

(g)                 To allow for foreign exchange settlement on a Cross Border Transaction, the Payment Date for Purchase Amounts and Fees and for Refund Amounts for a Cross Border Transaction may be extended in each case by three (3) additional Business Days;

(h)                 In accordance with Section 7.1(a) of the General Terms, Afterpay will make all payments to you in respect of a Cross Border Transaction in Canadian dollars;

(i)                  In addition to any Fee payable by you for each Afterpay Purchase for each Cross Border Transaction, a “Cross Border Transaction Fee” will be payable by you to Afterpay for each Afterpay Purchase as set out under Part D of the Supplementary Terms;

(j)                  To the extent that your Website supports multi-currency presentment so that a Customer is able make a Cross Border Transaction in a currency other than Canadian dollars (the “Foreign Currency”), we will convert the Foreign Currency to  Canadian dollars on the date of the Cross Border Transaction using the same conversion rate that Afterpay must pay, plus a fee of 1% of the converted amount, to calculate the payments referenced in clause (h) above and the Cross Border Transaction Fee;

(k)                 The terms of Section 7 of the General Terms apply to the Cross Border Transaction Fee in the same way as it applies to the Fee (including that the Cross Border Transaction Fee is not refundable unless paid incorrectly or otherwise required by law). For the avoidance of doubt, the Cross Border Transaction Fee will not be refunded or repaid to you in respect of Goods that are returned to you by Customers;

(l)                  You and we will, when performing obligations in relation to Cross Border Transactions for Customers located outside of Canada, each comply with the applicable Cross Border Transaction Privacy Terms available here: https://www.afterpay.com/attachment/409/download/XBPrivacy;

(m)               In addition to the other rights of termination under this Agreement, Afterpay may terminate the provision of Cross Border Trade for any reason immediately by written notice to you (including without limitation where Afterpay ceases to offer Cross Border Trade capability in connection with its Services). If Afterpay terminates Cross Border Trade, this Schedule 2 shall not apply, the remaining provisions of this Agreement shall not be affected, and the Agreement shall remain in full force and effect and shall continue to be legally binding on the Parties. For the avoidance of doubt, if either Party terminates this Agreement pursuant to its terms, this shall also terminate your provision of the Afterpay Services to Customers located outside Canada;

(n)                 For the avoidance of doubt, Afterpay is not performing any cross-border business and is not acting as agent for any Afterpay Affiliate in relation to the Cross Border Transactions;

(o)                 Additional definitions for use in this Exhibit:

(i)              “Cross Border Transaction” means an Afterpay Purchase between you and a Customer who is located in, and resides outside of Canada, where Delivery of the Goods takes place outside Canada;

(ii)             “Customer” means a Customer of an Afterpay Affiliate who uses such Afterpay Affiliate’s services where it is offered outside of Canada; and

(iii)            “we” includes an Afterpay Affiliate, where applicable.

MERCHANT SUPPLEMENTARY TERMS

These are the Merchant Supplementary Terms (these “Supplementary Terms”) which, together with the Merchant General Terms of Service (the “General Terms”), a current version of which can be found at https://get.afterpay.com/merchant-agreement-ca-static.html, comprise the terms of the agreement between us pursuant to which we provide the Afterpay Services to you. The Supplementary Terms and the General Terms, together, referred to as the “Agreement”. In the event of any inconsistency or conflict between the terms and provisions of the General Terms and these Supplementary Terms, the terms and provisions of these Supplementary Terms shall control. All capitalized terms not otherwise defined in these Supplementary Terms will have the meanings given to them in the General Terms.

 

PART A – MERCHANT NAME

Merchant entity entering into this Agreement:

Merchant (Full legal name of business): ____________________________

 

PART B – TERM

This Agreement will become effective on the Effective Date and will continue until the date that this Agreement is terminated in accordance with its terms (the “Term”).

 

PART C – USE OF AFTERPAY SERVICES

Afterpay grants you permission to use the Afterpay Services to enable your Customers to make Afterpay Purchases on the following Website(s) operated by you:

1. ____________________________________________

2. ____________________________________________

3. ____________________________________________

4. ____________________________________________

 

PART D – FEE

AFTERPAY E-COMMERCE (ONLINE) FEE

(i)         The Fee for each Afterpay Purchase made on your Website(s): Fee = ____% x Purchase Amount + $0.30.

AFTERPAY SERVICES CROSS BORDER TRANSACTIONS

(ii)         The Cross Border Transaction Fee for each Afterpay Purchase = ____% x Purchase Amount.

This means, for example, if the applicable Fee payable in the AFTERPAY E-COMMERCE (ONLINE) FEE portion of PART D – FEE above is ___% x Purchase Amount + $0.30, the amount payable by you for each Cross Border Transaction shall be: ___% x Purchase Amount + $0.30.

 

PART E – EXCLUSIVITY

For the purposes of this Part E,

“Competing Payment Service” means any “buy now, pay later” or “pay by instalments” electronic payment system, or other short-term consumer finance service, excluding any such systems or services offered by Visa, Mastercard or American Express.

“Preferred Placement” means that our logo is displayed in comparable size to or larger than, above (when featured top-to-bottom), or to the left of (when featured left-to-right) that of any Competing Payment Service.

ECOMMERCE (ONLINE) EXCLUSIVITY

 

The option marked with an “X” below shall apply to you:

 

         You must not, during the Term, allow Customers to purchase Goods from your Website using any Competing Payment Service.

 

         Not applicable