The parties agree as follows:
- Services. Brokerage membership requires integration between ExactDeposit and your your real estate brokerage trust account for the purpose of accepting deposit payments. By accepting the ExactDeposit Brokerage Service Agreement, you hereby authorize ExactDeposit to act on your behalf to facilitate this integration with our upstream payment providers.
5.1 Direct Deposit Service. If Brokerage elects to use the Direct Deposit service, Brokerage hereby appoints ExactDeposit as agent for Brokerage to issue pre- authorized debits (“PADs”) pursuant to Rule H1 of the Canadian Payments Association (“CPA”) subject to the terms of this Agreement. ExactDeposit will issue PADs on behalf of Brokerage for the purpose of collecting deposit payments from the accounts of Brokerage’s customers (“Payors”) in accordance with the terms of this Agreement.
5.2 Credit Cards and Interac Online Service. Brokerage acknowledges by signing the Brokerage Service Agreement, Brokerage has read and agrees to be bound by these additional terms and conditions. Furthermore, by signing the Brokerage Service Agreement, Brokerage agrees that it has reviewed the additional third party terms below and agrees that it shall be bound by these third party terms and conditions in addition to the Brokerage Service Agreement. Such terms include:
- Brokerage Responsibilities.
6.1 Discrepancies. Brokerage agrees to regularly and promptly review all Transactions and funds credited to its Trust Account and shall immediately notify ExactDeposit if it discovers any discrepancy between its records and those provided by ExactDeposit, or with respect to any Transaction that Brokerage believes was not authorized.
6.2 Updated Information. Brokerage shall advise ExactDeposit of any and all changes in Brokerage’s address, email, contact person, phone, fax number, broker of record, Trust Account information and any other information. Brokerage shall provide ExactDeposit with at least thirty (30) days’ advance notice of: (a) any material (20% or greater) change in its ownership; (b) any substantial change in the type, scope or nature of its business
- ExactDeposit Responsibilities.
7.1 Rejection of Transaction. ExactDeposit may in it sole discretion reject any Transaction that: (a) does not comply with the requirements of this Agreement; (b) ExactDeposit cannot confirm is authorized, to its satisfaction; (c) is untimely or ambiguous; (d) would cause ExactDeposit to violate any Rule, law or regulation, or creates a regulatory, reputational, operational or financial risk to ExactDeposit; (e) exceeds any monetary, regulatory or volume transaction limits established by ExactDeposit from time to time; or (f) would result in an act that is prohibited by CPA Rule H1. ExactDeposit will notify Brokerage of any Transaction that is rejected. ExactDeposit may provide such notice electronically on the same business day or on the business day following the business day that the Transaction is rejected by ExactDeposit. ExactDeposit shall have no liability to Brokerage, Buying Agent, or any other parties in Transaction by reason of the rejection of a Transaction pursuant to this agreement, or if notice of rejection is not given on the date provided for herein. ExactDeposit has no obligation to retransmit a rejected Transaction. Prior approval for a Transaction shall not be considered approval for future Transaction.
7.2 Holds. The standard hold period is specified in Schedule A. ExactDeposit reserves the right to place a longer hold period on the funds should questionable activity occur, or in the event that the Brokerage’s return rate increases significantly enough to warrant a longer hold period, or as required by law, and ExactDeposit shall advise Brokerage immediately of the longer hold period.
7.3 Dishonored Transaction. ExactDeposit or our payment providers reserve the right to debit a Brokerage’s Trust Account if a Transaction has been returned, reversed, charged back or otherwise withdrawn by the payer’s bank after the Brokerage Account has been credited by ExactDeposit or our payment providers. A Returned Items report will be delivered to Brokerage by ExactDeposit promptly following such return.
- Equipment and Software.
8.1 Equipment Compatibility. Brokerage is responsible for obtaining and maintaining any equipment that is necessary for the ExactDeposit Service, such as mobile phones, terminals and computers. Brokerage agrees to use equipment that is compatible with ExactDeposit programs, systems and equipment, which ExactDeposit may change from time to time. ExactDeposit assumes no responsibility for the defects or incompatibility of any computers or software that Brokerage uses in connection with the Service, even if ExactDeposit has previously approved their use.
8.2 Restrictions. Except as expressly allowed herein or by applicable law, Brokerage is not licensed or permitted under this Agreement to do any of the following and must not allow any third party to do any of the following: (i) access or attempt to access any other ExactDeposit systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, license, sublicense, modify or create derivative works based on ExactDeposit’s software (the “Software”) in whole or in part, resell or distribute in any way the Software; (iii) permit any third party to benefit from the use or functionality of the Software by means of a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to Brokerage under this Agreement; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; or (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the Software by ExactDeposit other licensees or customers, or impose an unreasonable or disproportionately large load on ExactDeposit’s infrastructure.
- Disclaimers of Warranties and Limitations on Liability
9.1 THE EXACTDEPOSIT SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE EXACTDEPOSIT SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
9.2 TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL EXACTDEPOSIT, OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
- Term. The initial term (“initial Term”) shall commence on the Effective Date and shall continue in full force and effect for twelve (12) months and shall thereafter automatically renew for an additional twelve (12) months, unless terminated by either party, by written notice to the other. ExactDeposit shall, have the right to terminate this Agreement and/or suspend Services at any time, upon written notice to Brokerage. Brokerage shall have the right to terminate this Agreement, at any time upon thirty (30) days prior written notice to ExactDeposit. Termination of this Agreement, shall not affect any of the rights or obligations of the parties that arose prior to termination or any other obligations that survive termination of this Agreement.
- Force Majeure. Neither party is responsible for damages caused by delay or the failure to perform any of its obligations under this Agreement when the delay or failure is the result of Force Majeure. If a party contends that any of its obligations are suspended by reason of Force Majeure, that party must give Notice to the other parties, providing all necessary details. That party must give a similar Notice as promptly as reasonably practicable when Force Majeure has ended. “Force Majeure” means any act, occurrence, condition, or event beyond the control of a party that materially affects the performance of that party’s obligations under this agreement that could not reasonably have been foreseen or provided against, including such events as fires, telecommunications or utility or power failures, equipment failures, labour strife, riots, war, non-performance of our vendors or suppliers, acts of God, but not including general economic conditions.
- Governing Law. This Agreement is governed by, and shall be construed under, the laws of the Province of Ontario.
- Arbitration. Any dispute between us shall be submitted to binding arbitration in Ottawa, Ontario, to be conducted through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any award may include an award for reasonable lawyers’ fees and costs.
- Entire Agreement. This Agreement, as amended from time time to time, makes up the entire Agreement between Brokerage and ExactDeposit, with respect to the subject matter hereof and supersedes any prior negotiations, or agreements whether oral or written, between ExactDeposit and Brokerage with respect to such subject matter. The invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability of the remaining provisions.
- Assignment. This Agreement, and the rights or duties hereunder, may not be assigned by a party without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and enure to the benefit of the successors and permitted assigns of the parties.
- Interpretation. In this Agreement:
(a) all references to this Agreement, including any Schedule, or to any law, statute, regulation, guideline, policy, rule, standard, or otherwise include same as may be amended, restated, supplemented or otherwise modified from time to time;
(b) the division of this Agreement into articles, sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof;
(c) words denoting the singular number only shall include the plural and vice versa, words denoting the masculine gender shall include the feminine and neuter genders and vice versa, as the context otherwise permits;
(d) the word “including” means “including without limitation” and the word “includes” means “includes without limitation”;
(e) the words “hereto,” “herein,” “hereof,” “hereunder,” “this Agreement” and similar expressions mean this Agreement as a whole and not any particular article, section or subsection unless the context otherwise requires