Exhibit 10.5
[PSiGate LOGO HERE]
MERCHANT AGREEMENT - Merchant and Gateway Account
ARTICLE A - DEFINITIONS
In this agreement:
1 "SERVICES" means access to, interface with and processing of credit card
authorization and settlement transactions of Merchant's customers over the
Internet.
2 "FAILURE" means the Services do not substantially perform in accordance with
the User Documentation.
3 "PERMANENT FIX" means a fully tested and quality controlled error correction
to a Failure in the Services.
4 "WORKAROUND" means the temporary prevention of the reoccurrence of a Failure
after implementation of a specific procedural or process change.
5 "RELIEF" means an immediate solution or Permanent Fix to a Failure or a
Workaround that avoids the Failure or reduces the impact of such Failure until
such time that a Permanent Fix is available, but excludes recovery or
restoration of a system database or similar task.
6 "SERVICES SUPPORT" includes, without limitation, the provision of: (i) Relief
to reported and documented errors in the Software; (ii) answers to questions
regarding the use of the Services; (iii) assistance with the interface to
PSiGate's server; (iv) coordination with Merchants' card processor and bank and
communication to the card processor; (v) assistance with interfacing of the
transaction data with legacy systems; (vi) testing of interface to PSiGate's
server; and (vii) training on the use of the Services.
7 "USER DOCUMENTATION" means all associated media and written materials which
may include online or electronic documentation associated with the Services.
ARTICLE B - SERVICES
8 Prior to activation of the Services, PSiGate shall establish an account in
Merchant's name. Upon payment of the Activation Charge and License Fee, the
Services shall be activated. Merchant shall select a personal password and shall
not disclose that password except to PSiGate and persons authorized by Merchant
to access its account. Merchant acknowledges that it shall be entirely liable
for all activities conducted through Merchant's account.
9 PSiGate will provide Merchant with the Services in accordance with the User
Documentation. PSiGate reserves the right to change any aspect of the Services,
including, without limitation, Fees, terms and conditions of this agreement and
the characteristics of the Services, upon five days advance notice. Notice of
change as provided in this section shall be deemed to have been given upon
electronic posting on PSiGate's network at xxx.xxxxxxx.xxx for a period of not
less than seven consecutive days. Merchant's continued use of the Services
following notice of any such revision in the foregoing manner shall be
conclusively deemed acceptance of all of such revisions.
10 PSiGate hereby grants Merchant a non-exclusive, non-transferable, revocable,
limited sub-license for a term of one year from first day of the month in which
Merchant accesses the Services in either test or production mode to use the
software necessary to access and utilize the Services and the User
Documentation. Merchant acknowledges and agrees that PSiGate and its licensors
are the sole owners of all right, title and interest in and to the software
which comprise the Services, the User Documentation and all copyrights,
know-how, trade secrets, trademarks, service marks, trade names, patents and
other proprietary rights associated therewith throughout the world. Merchant
shall not commit any act that might prejudice or adversely affect the validity
of such ownership. Ownership of the software which comprise the Services, the
User Documentation and all copies, modifications and merged portions thereof
shall at all times remain with PSiGate and its licensors. Merchant may make a
reasonable number of copies of User Documentation for use only by Merchant.
PSiGate reserves the right to change the names, organization and content of the
User Documentation from time to time. PSiGate shall be entitled to create,
distribute and sub-license aggregate statistical and database compilations
derived from Merchant data and Merchant's customers' data, such as demographics,
site traffic, viewing and navigation patterns, transaction characteristics.
11 Merchant agrees that PSiGate may refer to Merchant by trade name and
trademark and may describe Merchant's business in PSiGate's marketing materials
and web site. Merchant hereby grants PSiGate a limited license to use any
Merchant trade names and trademarks solely in connection with the rights granted
to PSiGate pursuant to this section. All goodwill associated with Merchant's
trade name and trademarks will inure solely to Merchant. Merchant may display
the slogan "Enabled by PSiGate", or any other PSiGate slogan together with the
PSiGate logo, or any other PSiGate trademark or service xxxx or logo, on
Merchant's web site or marketing literature only after obtaining PSiGate's
written approval. All goodwill associated with PSiGate's trade name, trademarks,
slogans and logos will inure solely to PSiGate. Merchant hereby consents to
PSiGate's use of Merchant's name and logo in PSiGate's customer list, marketing
materials, press releases and announcements.
ARTICLE C - MERCHANT'S RESPONSIBILITIES
12 Merchant represents, warrants and covenants that: (i) its use of the Services
and its web site shall comply with any and all applicable laws; (ii) its web
pages shall not contain and Merchant shall not propagate, distribute, house,
process, store or otherwise in any way handle material that is pornographic,
obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, or
offensive, that is disparaging or defamatory, that invades any right of privacy
or that infringes upon any intellectual property rights of any person; (iii) it
shall not transmit or store any information, data or material in violation of
any international, federal, provincial, state or local regulation or law; (iv)
it shall comply with all applicable rules and regulations related to credit card
processing, settlement and clearing of payment transactions; (v) it will not use
the Services for illegal purposes, or to interfere with or disrupt other network
users, network services or network equipment; (vi) it shall comply with all
local, provincial, state and federal laws governing the transmission, storage,
production, and/or retrieval of electronic information; (vii) it will not
export, re-export, transfer, or make available, whether directly or indirectly,
any regulated item or information provided pursuant to this agreement to anyone
outside the United States without first complying with all export control laws
and regulations which may be imposed by the United States, Canada and any
country or organization of nations within whose jurisdiction Merchant operates
or does business.
13 Merchant represents and warrants that it is a single business entity and is
not comprised of more than one business unit which: (i) must provide separate
financial reports at Merchant's bank; (ii) are located at different geographical
locations; (iii) are listed as separate business units in either Merchant's
financial statements or that of Merchant's parent organization; or (iv) carry
separate financial accountability within the Merchant's organization or by
Merchant's bank. Merchant also represents and warrants that it has only one web
storefront, one Merchant identification number and one account number. Merchant
acknowledges and agrees that the Services shall be utilized by Merchant on one
server only, utilizing computer equipment owned by, leased to or operated for
the benefit of Merchant.
14 Merchant acknowledges and agrees that this agreement is a services agreement
and is not intended to and will not constitute a lease of any real or personal
property.
15 Merchant shall be solely responsible for all telephone, computer, hardware
and software equipment and services necessary to access and utilize the
Services. Merchant shall bear all collection risk (including, without
limitation, credit card fraud and any other type of credit fraud) with respect
to sales of its products or services and shall bear all responsibility and
liability for the proper payment of all taxes which may be levied or assessed
(including, without limitation, sales taxes) which may be levied in respect of
sales of its products or services.
16 Merchant shall not (and shall not knowingly cause or permit anyone to)
reproduce or prepare any derivative work based upon the Services or any other
proprietary information belonging to PSiGate. Merchant agrees to secure and
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protect tangible forms of the software which comprise the Services, the User
Documentation and other proprietary information belonging to PSiGate and its
licensors so as to maintain the rights of PSiGate and its licensors therein.
Merchant shall not (and shall not knowingly cause or permit anyone to)
disassemble, decompile, decrypt, extract, or reverse engineer the software which
comprise the Services, or otherwise apply any procedure or process to the
Services or the software which comprise the Services, in order to ascertain,
derive, and/or appropriate for any reason or purpose, the source code or source
listing for the software which comprise the Services, or any procedure, process
or other material embodied in the Services or the software which comprise the
Services.
17 If an individual, Merchant certifies that he or she is at least eighteen
years of age.
18 Merchant agrees that the User Documentation shall be disclosed only to those
of its employees as are necessary to facilitate the Services, shall not be
disclosed to third parties without the written consent of the other party and
shall be kept in a safe and secure location.
ARTICLE D - SUPPORT SERVICES
19 PSiGate will make commercially reasonable best efforts to provide Services
Support on a timely basis, based on severity level, the extent of the impact on
functionality, and any other available information.
20 Prior to submitting a Support Request to PSiGate, Merchant will first
troubleshoot its system to determine if issues may be arising from other
software or hardware of the Merchant, its Internet service provider, the
Internet or other variables outside the control and domain of PSiGate. Merchant
may be charged by PSiGate, at PSiGate's discretion, for products or technical
support which are not covered under the Services Support policies and procedures
of PSiGate then in effect. PSiGate will advise Merchant of the possibility of
charges for any products or technical support requested prior to proceeding.
21 Services Support is available as set forth in Schedule A, attached hereto and
forming part of this agreement. Merchant may request Services Support by
notifying PSiGate by email to xxxxxxx@xxxxxxx.xxx, supplying complete
information relating to the problem, including copies of error messages and logs
system data and any other relevant data.
ARTICLE E - FEES
22 Merchant unconditionally agrees and promises to pay to the order of PSiGate,
its successors and assigns fees for the Services set forth in Schedule A (the
"Fees"). Merchant waives any right to off-set against any of the Fees. There
shall be added to all Fees an amount equal to all taxes, however designated,
levied or based, including, with-out limitation, sales and use taxes imposed in
connection with the Services. Merchant shall be liable to pay for the full
month's Fees even if the Services are terminated before the end of the month for
any reason.
23 Merchant acknowledges and agrees that if it changes its bank, merchant
identification number or merchant account number subsequent to the Effective
Date, it may be subject to an additional fee, in the discretion of PSiGate.
24 Merchants with invoices remaining unpaid 30 days after the due date are
liable for a $25 administrative surcharge and may have their Services suspended.
If any payment is returned or rejected, Merchant's Services will be suspended.
Suspended Services may be resumed upon receipt of full payment of all amounts
due and Merchant agrees to pay a $75 surcharge for re-connection of Services.
Suspension of Services shall not relieve Merchant from its obligation to pay any
and all past due Fees.
25 Under no circumstances shall PSiGate be liable to Merchant under any
contract, negligence, strict liability or other legal or equitable theory for
any amounts in excess of the aggregate fees paid by Merchant hereunder during
the twelve month period prior to the date the cause of action arose. The
exclusions and limitations of this section will not apply in jurisdictions that
prohibit the exclusion or limitation of incidental or consequential damages or
limitations on the duration of an implied warranty.
ARTICLE F - TERM AND TERMINATION
26 This agreement shall take effect on the date it is executed by PSiGate (the
"Effective Date"). PSiGate may terminate this agreement upon giving Merchant
thirty days written notice. Such termination by PSiGate shall become effective
immediately upon expiration of such thirty day period.
27 PSiGate reserves the right to terminate any account of Merchant on which no
activity has occurred for a period of not less than six months. PSiGate reserves
the right to remove any data stored in any Merchant directory upon termination
of Merchant account.
28 In the event that PSiGate reasonably believes that Merchant's conduct
(including without limitation intentionally transmitting inaccurate and/or
incomplete data to PSiGate) or Merchant's products violate applicable law or
pose a threat to PSiGate's systems, equipment, processes, or intellectual
property (a "Threatening Condition"), PSiGate will provide Merchant with notice
of the Threatening Condition, upon receipt of which Merchant agrees to exercise
best efforts to cure said Threatening Condition. If in the reasonable and good
faith determination of PSiGate, the Threatening Condition poses an imminent or
actual threat to PSiGate's systems, equipment, processes, or intellectual
property, Merchant agrees to suspend any and all activity on its account until
such threat is cured. Notwithstanding the foregoing, PSiGate may thereafter
deactivate Merchant's account without notice until the threat is cured if
Merchant does not itself suspend activity.
29 The initial term of this agreement shall be one year from the Effective Date.
Thereafter, this agreement will renew automatically for additional terms of one
year ("Additional Term") unless either party provides the other with written
notice not less than thirty calendar days prior to any such renewal that it does
not wish to renew this agreement.
30 This agreement may be terminated by either party effective immediately and
with-out notice in the event that: (i) the other party commits a material breach
of this agreement which remains uncured thirty days following written notice
thereof; (ii) the other party files a petition in bankruptcy, files a petition
seeking any reorganization, arrangement, composition or similar relief under any
law regarding insolvency or relief for debtors, or makes an assignment for the
benefit of creditors; (iii) a receiver, trustee or similar officer is appointed
for the business or property of such party; (iv) any involuntary petition or
proceeding under bankruptcy or insolvency laws is instituted against such party
and is not stayed, enjoined or discharged within sixty days; or (v) the other
party adopts a resolution for discontinuance of its business or for its
dissolution.
ARTICLE G - GENERAL
31 The parties shall perform all of their duties under this agreement as
independent contractors. Nothing in this agreement shall be construed to give
either party the power to direct or control the daily activities of the other
party, or to constitute the parties as principal and agent, employer and
employee, franchiser and franchisee, partners, joint venturers, co-owners or
otherwise as participants in a joint undertaking. The parties understand and
agree that, except as specifically provided in this agreement, neither party
grants the other party the power or authority to make or give any agreement,
statement, representation, warranty or other commitment on behalf of the other
party, or to enter into any contract or otherwise incur any liability or
obligation, express or implied, on behalf of the other party, or to transfer,
release or waive any right, title or interest of such other party.
32 This agreement shall be governed by and interpreted in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein and each party hereby submits to the exclusive jurisdiction of the
courts of the Province of Ontario.
33 This agreement may not be transferred or assigned by Merchant and any
attempts by Merchant to assign any of its rights or delegate any of its duties
hereunder shall be null and void. This agreement shall inure to the benefit of
and bind PSiGate and Merchant and their respective successors and assigns.
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34 Merchant warrants and represents that its signatory whose signature appears
below has been and is on the date of this agreement duly authorized by all
necessary corporate action to execute this agreement.
35 PSiGate shall not be responsible for any failure to perform its obligations
under this agreement if such failure is caused by acts of God, war, strikes,
revolutions, lack or failure of transportation facilities, laws or governmental
regulations or other causes that are beyond the reasonable control of PSiGate.
36 This agreement, including any schedules attached hereto, constitutes and
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes any prior oral or written agreements. Each party
acknowledges and agrees that the other has not made any representations,
warranties or agreements of any kind, except as expressly set forth herein. The
headings in this agreement are intended for convenience of reference and shall
not affect its interpretation. This agreement may be executed in counterparts
each of which shall be deemed an original and all such counterparts shall
constitute one and the same agreement.
37 This agreement may not be modified or amended, including by custom, usage of
trade or course of dealing, except by an instrument in writing signed by duly
authorized officers of both of the parties hereto. The waiver by either party of
a breach of any provision contained herein shall be in writing and shall in no
way be construed as a waiver of any subsequent breach of such provision or the
waiver of the provision itself.
38 The provisions of this agreement relating to confidentiality, reverse
engineering and indemnification shall survive any termination or expiration of
this agreement.
39 If any provision of this agreement shall be held illegal or unenforceable,
that pro-vision shall be limited or eliminated to the minimum extent necessary
so that this agreement shall otherwise remain in full force and effect and
enforceable.
40 Except as otherwise provided herein, any notice, approval, request,
authorization, direction or other communication under this agreement shall be
given in writing to the address set forth below and shall be deemed to have been
delivered and given for all purposes on the delivery date, if delivered
personally to the party to whom the same is directed, one business day after
deposit with a commercial overnight carrier, with written verification of
receipt and upon completion of transmission if sent via telecopier, with
confirmation of successful transmission.
41 Each provision of this agreement shall be fairly interpreted and construed in
accordance with its provisions and without any strict interpretation or
construction in favour of or against either party. This agreement may be signed
in multiple counter-parts, and each such duly signed counterpart shall be deemed
to be an original copy of this agreement provided; however, that each party
shall receive a counterpart fully signed by the other party.
42 Time is of the essence for the purpose of this Agreement.
The Merchant acknowledges and agrees that he had the opportunity to seek and was
not prevented nor discouraged by Provider from seeking independent legal advice
prior to the execution and delivery of this agreement and that in the event that
he did not avail himself of that opportunity prior to the signing of this
agreement, he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be used by him as a defense
to the enforcement of his obligations under this agreement.
Services Support shall be available Monday through Thursday, 8 a.m. to 6 p.m.,
Friday, 8 a.m. to 5 p.m., Eastern Standard Time, excluding holidays.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last
written below ("Effective Date").
Company
Name: Mediatelevision, Inc.
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Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX X0X 0X0
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By: /s/ Xxxxx Xxxxx
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(Signature of Merchant's authorized employee)
Name: Xxxxx Xxxxx
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Title: CEO
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Date:
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PAYMENT SERVICES INTERACTIVE GATEWAY INC.
0000-0 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
By:
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(Signature of PSiGate's authorized employee (1))
Name and
Title:
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And By:
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(Signature of PSiGate's authorized employee (2))
Name and
Title:
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Date:
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SCHEDULE A - FEES SELECT the appropriate box
Merchant shall pay PSiGate the following fees for the Services:
CDN FUNDS SETTLEMENT:
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(a) a one time set-up fee of CDN $ 399.00 ("Activation Charge");
(b) a monthly maintenance fee of CDN $ 49.95 ("Monthly Maintenance");
* (c) an individual transaction fee of CDN $ 0.35(cent) for each transaction
("Transaction fees"); and
(d) Visa/MasterCard Processing Rate 3.95%
NOTE: If your Merchant Account is not approved, your Activation
Charge will be refunded to you less a $175.00 Processing Fee.
PLEASE NOTE: In lieu of the Merchant security deposit that is required by a bank
for Internet Merchants, PSiGate requires a Rolling Merchant Reserve Fund based
on 5% of actual monthly sales. These funds will be held for 90 days on a rolling
basis, and then returned to the Merchant.
