THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OF THE SOFTWARE, EMPLOYEES AND AFFILIATES OF BChark Pay, COPYRIGHT HOLDERS, OR BChark Pay. BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
IN NO EVENT WILL BChark Pay OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
We retain all right, title, and interest in and to the Content and all of BChark Pay’s brands, logos, and trademarks, including, but not limited to, BChark Pay, BChark Pay –BChark Pay App, BChark Copay, BChark Pay Prepaid Card, and variations of the wording of the aforementioned brands, logos, and trademarks.
Choice of Law
This Agreement, and its application and interpretation, shall be governed exclusively by the laws of Canada, without regard to its conflict of law rules. You consent to the exclusive jurisdiction of the federal and provincial courts located in or near Quebec, Canada for any dispute arising under this Agreement.
In the event any court shall declare any section or sections of this Agreement invalid or void, such declaration shall not invalidate the entire Agreement and all other paragraphs of the Agreement shall remain in full force and effect.
The terms and provisions of this Agreement are binding upon Your heirs, successors, assigns, and other representatives. This Agreement may be executed in counterparts, each of which shall be considered to be an original, but both of which constitute the same Agreement.
You assume any and all risks associated with the use of the Software. We reserve the right to modify this Agreement from time to time.
TERMS UPDATED ON APRIL, 3 2020
We are a cryptocurrency payment processor. We enable you to accept cryptocurrency as payment for goods or services, and process cryptocurrency payments that you receive from your customer (Purchaser). We are not a crypto exchange or a place to purchase or sell cryptocurrencies. Our Services are only available to businesses that sell a product or services or to registered charitable organizations that accept donations. By using the Services, you authorize us to act as your agent so we may receive, hold and disburse funds on your behalf and to take any and all actions that we think are necessary to provide the Services and to comply with applicable law. Payment by Purchaser to BChark Pay will be considered the same as payment made directly to you and will extinguish the Purchaser’s outstanding obligation, to the extent of the payment.
In order to use the Services, you must open an BChark Pay merchant account. When you open an account, we will ask you for contact information such as your name, phone number, email address, and information relating to the ultimate beneficial owner or the most senior individual from the organization. We will also ask you for information on your business, including your business’s legal name or DBA, physical address of the business, and your company’s website. The information that you provide at the time of account opening must be accurate and complete and you must inform us within ten business (10) days of any changes to such information. We may require additional information from you (including any person signing below or otherwise agreeing to the Terms on behalf of the merchant) to help verify your identity and assess your business risk, such as your date of birth, tax identification number, or government-issued identification. We may also obtain information about you from third parties, such as credit bureaus and identity verification services. We have the right to reject your account registration or to later close your BChark Pay account, if you do not provide us with accurate, complete, and satisfactory information.
BChark Pay is operated by BChark and is a subsidiary of Alt 5 Sigma, Inc. that is registered with FinCEN in the United States and Fintrac in Canada as a money transmitter. As a regulated business, BChark Pay is required to comply with the Bank Secrecy Act, which requires BChark Pay to verify merchant identities, maintain records of currency transactions for up to five years and report certain transactions. In the event that a merchant account is closed by BChark Pay or at the request of the merchant, even without completing the onboarding process or performing a transaction, records must be held as prescribed by law.
- BChark Pay imposes daily transaction processing limits on merchants. When you register for a BChark Pay account, you will be required to select the limit (“the Tier”) that will apply to your BChark Pay account, and to provide us with the documentation necessary to qualify for that Tier.For certain industries, BChark Pay may ask for additional verification documents. We will not begin to process payments on your behalf until we have reviewed the documentation that you provide, in accordance with applicable law. If you wish to change to a Tier with a higher limit, you must provide us with the additional required documentation. We will not approve your request to change Tiers and permit you a greater processing volume unless and until we have reviewed your documentation to our satisfaction. Please also refer to Section 3.1, Daily Transaction Volume Limits.
2.2 Guarding your Password
You will choose a password when registering your account. You are responsible for maintaining the confidentiality of your password and account access information. You are fully responsible for all activities that occur with the use of your password or account. Please notify us immediately of any unauthorized use of your password or account or any other breach of security. If you share your password with others we will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may not allow other merchants to use your account. You may not use anyone else’s password at any time.
3.1 Daily Transaction Volume Limits
BChark Pay imposes daily and annual transaction processing limits on merchants. When you register for a BChark Pay account, you will be enabled to transact at the Basic Tier level. At BChark Pay’s discretion, and based on BChark Pay’s risk assessment of your business, transaction capabilities may not be enabled until additional documentation or information regarding you and your business is collected and verified. Requests to increase your processing limit will not be approved unless and until we have reviewed your documentation to our satisfaction and have confirmed the accuracy and authenticity of the information therein.
3.2 Invoices and Records
You must keep all records needed for fulfilling the goods or services sold to the Purchaser and providing any post-sale support to the Purchaser. If the sale of the item requires any government registration of the sale, you are responsible for such registration. BChark Pay is required to maintain records of all documentation and information collected for your merchant account for the duration that your account is active, and up to 5 years thereafter.
3.3 Customer Verification
Consistent with your local laws and regulations, you are solely responsible for obtaining any information required of those who purchase your goods or services. For instance, if applicable law prohibits a sale to persons under the age of 18 years, you must ensure that a Purchaser is at least 18 years of age. Similarly, if applicable law requires that a Purchaser’s identity be verified, you must verify the Purchaser’s identity. We will not be responsible for your failure to adequately verify your Purchasers’ identities or qualifications.
3.4 Representation and Warranties
Use of the Services is subject to the laws and regulations of the United States and Canada regarding the prevention of terrorist financing and anti-money laundering. You agree and acknowledge that your use of the Services would and will comport with such laws and regulations, including, without limitation, the sanctions programs administered by the Office of Foreign Assets Control of the United States Department of the Treasury.
Your use of the Services is also subject to the following important restrictions:
- You are at least eighteen (18) years old or older and have the right, power and contractual capacity to agree to these Terms.
- Your use of the Services will not contravene any applicable international, federal, state or local law or regulation, including applicable tax laws and regulations.
- Your use of the Services will not relate to the following prohibited activities:
- Sales of narcotics, research chemicals or any controlled substances;
- Sales of cash or cash equivalents, including items used for speculation or hedging purposes (such as derivatives), and the sale or trade of cryptocurrencies;
- items that infringe or violate any intellectual property rights such as copyrights, trademarks, trade secrets, or patents;;
- ammunition, firearms, explosives (including fireworks), or weapons regulated under applicable law or as determined by us; or
- transactions that show the personal information of third parties in violation of applicable law;
- transactions that support pyramid, Ponzi, or other “get rich quick” schemes;
- transactions that are related to cloud-mining;
- provide credit repair or debt settlement services;
- any services which compete with BChark Pay;
- Explicit sexual content;
- Sales of Kratom or Nootropics
- If your use of the Services relates to one of the following restricted activities, your activities are subject to internal review and you are only allowed to transact when expressly authorized by BChark Pay in writing:
- Engaged in Foreign Exchange, Money Service Business activities (as defined by the Financial Crimes Enforcement Network of the United States Department of the Treasury) or E-wallets;
- Engaged in selling cryptocurrency mining hardware;
- Providing Currency exchange services;
- Transaction that are associated with purchases of annuities or lottery contracts, lay-away systems, banking, offshore banking, transactions to finance, investing, investment related products or
- Transactions that involve gambling or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, and sweepstakes, unless you have obtained our prior written approval and you and your customers are located exclusively in jurisdictions where such activities are permitted by law.
3.5 Our Right to Reject
We reserve the right to decline to process a sale if we reasonably believe that it violates these Terms or would expose you, other merchants, Purchasers, or other parties to harm. If we reasonably suspect that your BChark Pay account has been used for an illegal purpose, you authorize us to share information about you, your BChark Pay account, and your account activity with law enforcement.
3.6 Our Right to Inspect
We may ask for permission to inspect your business location in connection with your use of the Services, or documentation or evidence to support specific transactions. If you refuse our request, we may suspend or terminate your BChark Pay account.
4.1 Your Use of Third-Party Services
In using the BChark Pay website or the Services, you may be offered services, products and promotions provided by third parties. If you decide to use these third-party services, you do so at your own risk and are solely responsible for reviewing, understanding and complying with the associated terms and conditions. We expressly disclaim any liability for the third-party services and are not responsible for the performance of the third-party services or servicers.
We have implemented security measures designed to secure your information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law.
How we Collect, Use and Share Information
In order to provide the Services, we may share information about you and your BChark Pay account with third parties, including but not limited to your bank and Purchasers.
5.1 Verification of Your Identity
In order to verify the information you submit via the account registration process as detailed in Section 2.1 (Generally) we may request information from various third parties, including credit bureaus and identity verification services. By accepting these Terms you authorize us to retrieve information about you by using third parties and acknowledge we may have to share the information you have previously submitted to do so.
From time to time BChark Pay may engage third parties in order to assist in different aspects of the provision of our Services to you. You acknowledge and agree your use of the Services may require we share your information with these third parties who may need to review your eligibility to use the Services according to their own verification procedures.
Our Ownership of the Services and the BChark Pay Website
You agree and acknowledge that we own all right, title and interest to and in the Services, the associated software, technology tools and content, the BChark Pay website, the content displayed on the website, and other materials produced by and related to BChark Pay (collectively, the BChark Pay IP). You are only permitted to use the Services and the BChark Pay IP to accept and receive payments, according to these Terms. When you accept the Terms, we grant you a personal, limited, revocable and non-transferable license to use the BChark Pay IP, without the right to sublicense. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the BChark Pay IP or any portion thereof, or use the BChark Pay IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the BChark Pay IP, nor shall you translate, reverse engineer, decompile or disassemble the BChark Pay IP.
You represent and warrant to us that you have the right to provide the Merchant Content to us, and that the use, copying, modification and publication of the Merchant Content by us: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.
Invoices & Settlement
8.1 Invoice Generation and Exchange Rate Guarantee
BChark Pay’s hosted invoice UI shall be used. To create an invoice for your Purchaser, you may post a request to BChark Pay to collect a specific amount in your local currency, such as Dollars or Euros, or in any of the supported cryptocurrencies. BChark Pay will pull the exchange rate, where applicable, and provide the payment instructions to you for you to display to the Purchaser. We guarantee the exchange rate to you as long as the Purchaser pays within the proper time window after the invoice is created. Invoice timeout information is clearly displayed on each BChark Pay invoice. While we guarantee the exchange rate as long as the Purchaser pays within such time window, you agree that you assume the volatility risk of your local currency or the applicable cryptocurrency. For instance, if you ask us to collect $150, and the Purchaser sends the cryptocurrency equivalent within the time window, we guarantee you will receive exactly $150, minus our fee if applicable. We do not, however, guarantee the value of the U.S. dollar.
For any payments that are made using the bitcoin blockchain, an invoice is considered complete by us after the payment has six (6) block confirmations. You have the option to inform your Purchaser earlier about the status of the invoice; please note that BChark Pay is not liable for settling invoices with a payment that never receives six (6) block confirmations. BChark Pay employs techniques to detect payments that are at risk of never receiving six (6) bitcoin block confirmations, however these measures do not completely eliminate the risk associated with unconfirmed payments.
8.2.1 Merchant Fees
We may charge service fees for merchants on based on available plans and monthly transaction volumes. Merchants paying Service Fees will have these fees offset against their applicable ledger balances.
If you issue a full or partial refund to your customers, the miner fee amount will be deducted from your merchant ledger balance. The deduction will be added as a separate entry in your BChark Pay ledger after the refund is executed.
8.2.2 Purchaser Fees
BChark Pay may incur a cost (“Network Cost”) to sweep an incoming cryptocurrency payment. These Network Costs are included in the invoice total and are paid by the Purchaser. The Network Costs are not returned when a refund is executed. Purchaser has the discretion to decide to pay or not pay an invoice after it has been created.
Cryptocurrency transactions may require a miner fee. These miner fees are automatically created by the Purchaser’s wallet and sent to the miner. These miner fees are not BChark Pay fees. The miner fees paid to the Network are not returned when a refund is executed.
We reserve the right to change our fee structure and pricing. Your continued use of the Services after we notify you of any changes in our fees constitutes your acceptance of such change.
8.3 Methods of Settlement
We will verify the Purchaser’s payments over the cryptocurrency peer-to-peer payment network and post the balance to your accounting ledger, according to your preference settings. The debits and credits to your accounting ledger are funds temporarily held by BChark Pay until settlement to your bank account can take place. You can receive a settlement in your local currency, in any of the supported cryptocurrencies, or in a mixture of both. You assume volatility risks of the currency in which you choose to settle.
8.3.1 Settlements in Local Currencies
Direct deposit to a bank account in a local currency may be available to merchants located in certain countries. If you wish to receive direct deposit settlements, you must provide us with valid bank account information and keep such information current. We will send merchants a wire transfer to your bank account to clear out your accumulated ledger balance each business day. If you are using the Starter plan, we will settle the accumulated ledger balance on a weekly basis. If you are accepting any portion of your settlement in a supported cryptocurrency, we will settle to your wallet on a daily basis. Minimum settlement amounts apply; We will charge you the applicable wire fees. Settlements might be initiated from a bank account held in the name of BChark Pay Inc. or Alt 5 Sigma, Inc or Alt 5 Sigma Canada, Inc.
8.3.2 Your Bank Account
You must provide us with written notice at least one (1) business day prior to closing your bank account. If you wish to continue to receive direct deposits, you must provide us with information for a substitute bank account. You are solely liable for all fees and costs associated with your bank account and for all overdrafts. You are also liable to us for any fees that we may incur based on your provision of inaccurate information or instructions. You authorize us to initiate electronic credits to your bank account at any time, as necessary to process your transactions. We will not be liable for any delays in receipt of funds or errors in bank account entries caused by third parties.
8.3.3 Settlements in a Supported Cryptocurrency
Any supported cryptocurrency accepted by BChark Pay on your behalf must be settled to a cryptocurrency wallet that you provided. Payments in any of the supported cryptocurrencies are sent to your designated wallet address, at least once per calendar day. BChark Pay is not liable for any losses incurred as a result of improperly reported or designated wallet addresses that you provide.
8.3.4 Refund Reserve
With your explicit consent, BChark Pay can set a refund reserve. You can use the refund reserve to refund BChark Pay invoices (e.g., when goods/services are not delivered) or to fund cryptocurrency payout requests. Once the refund reserve is set, BChark Pay does not settle the refund reserve amount. Pending refunds are deducted from your refund reserve. If no refund reserve is set, pending refunds will be deducted from the settlement amount.
BChark Pay does not own or control the underlying software protocols that govern the operation of cryptocurrencies supported on our platform. In general, the underlying protocols are open source, and anyone can use, copy, modify, and distribute them. Unless explicitly mentioned on our website or in our Terms, we do not support or process payments for unsupported payments, coins, tokens, or blockchain forks, collectively known as Unsupported Payments (“UP”). BChark Pay assumes absolutely no responsibility whatsoever in respect to UP. BChark Pay is only liable for the cryptocurrency ledger balance selected in your refund reserve or payout preference.
8.3.5 Settlement Minimum
BChark Pay settles once the settlement amount is above the settlement minimum. The standard settlement minimums is $250 USD.
8.4 Payment Exceptions
In certain situations when an invoice is not fully paid or overpaid, it will result in a payment exception. You can resolve payment exceptions from the BChark Pay merchant dashboard.
BChark Pay incurs miner fees to refund a payment. If the Purchaser requests a refund for a Payment Exception, BChark Pay will deduct the miner fees from the refund amount.
Underpayments occur when the Purchaser sends less than the full amount required to mark the invoice as fully paid. Since the invoice is not fully paid or complete, the funds do not get applied to the merchant ledger. BChark Pay will send an email to the Purchaser allowing the Purchaser to request a refund for the partial payment. The Purchaser also has the ability to request a refund of the partial payment directly from the invoice. If you want to accept underpayments, you can enable this in your BChark Pay merchant dashboard. In this case BChark Pay will adjust the invoice price to the amount paid, instead of refunding the underpayment.
Overpayments occur when an invoice receives excess funds. In cases such as this, this invoice passes through the state of being paid in full and is marked as an overpayment. Once the invoice is status is “complete”, the funds to mark the invoice as fully paid are applied to the merchant ledger. However, the excess funds are not applied. BChark Pay will send an email to the Purchaser allowing the Purchaser to request a refund for the excess funds. The Purchaser also has the ability to request a refund of the excess funds directly from the invoice.
8.4.3 Orphan Payment
Orphan Payments occur when a transaction is received outside the time window referenced in Section 8.1 (Invoice Generation and Exchange Rate Guarantee). Any payments sent to the expired address will show up in BChark Pay’s system as an orphan payment. For more information or to resolve orphaned payments, either you or the Purchaser will need to contact us at [email protected] with the appropriate information.
8.4.4 Unsupported Payments
For an overview of the currently supported cryptocurrencies, please refer to bcharkpay.ca. Unless explicitly mentioned on our website or in our Terms, we do not support or process payments for any digital assets other than Bitcoin, Ethereum and PURE Stable Coin. Purchasers should not pay any BChark Pay invoice or send un-supported cryptocurrencies to a BChark Pay address. If a Purchaser transmits a un-supported cryptocurrencies, the Purchaser may lose any perceived value in the un-supported cryptocurrencies. Additionally, the Merchant and the Purchaser agree that BChark Pay assumes no responsibility whatsoever in respect to that un-supported cryptocurrencies and the Merchant and the Purchaser will not be able to recover the un-supported cryptocurrencies from BChark Pay. BChark Pay assumes absolutely no responsibility whatsoever in respect to un-supported cryptocurrencies.
8.4.5 Unclaimed Property
If a payment exception is made and BChark Pay receives cryptocurrency, and BChark Pay is unable to contact you or the Purchaser and has no record of you or the Purchaser’s use of the Services for several years, applicable law may require BChark Pay to report these funds as unclaimed property to the applicable jurisdiction. If this occurs, BChark Pay will try to locate you or the Purchaser using the notification information shown in our records, but if BChark Pay is unable to locate you or the Purchaser, it may be required to deliver any such funds to the applicable state or jurisdiction as unclaimed property. BChark Pay reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.
8.5 Certain Deferrals
If we need to conduct an investigation or resolve any pending dispute related to your BChark Pay account, we may delay settlement or restrict access to your funds while we do so. Additionally, we may delay settlement or restrict access to your funds if required to do so by law, court order or at the request of law enforcement.
8.6 Account Information
You will have access to account information detailing your ledger and transaction and settlement history through your merchant account. Should you identify an error, you must notify us within thirty (30) calendar days of the ledger entry posting.
Refunds and Adjustments
9.1 Refund Procedures
BChark Pay can facilitate cryptocurrency refunds on your behalf. You can decide to issue a partial refund or refund the full amount of the initial purchase. You can also decide whether to issue the refund denominated in your local currency or in a supported cryptocurrency. If you do not have enough funds in your BChark Pay account to cover the refund, BChark Pay may require you to deposit a cryptocurrency or fiat to BChark Pay to cover the refund to the Purchaser. Any required currency conversion during the refund process will be calculated at a spot rate determined by BChark Pay.
9.1.2 Requirement of InvoiceID or Tag to Ensure Refund of Payment Exceptions for XRP
Because all XRP invoices share the same address, you must ensure that payment transactions include either an invoiceID or return the same value sent in the original tag by BChark Pay so we can identify your payment. At least one of the required invoiceID or the original value in the tag fields will be included along with the invoice. If a purchaser is using a payment-protocol enabled wallet, the invoiceID will automatically be included in any XRP transaction. If an XRP transaction is sent to our account without either the invoiceID tag or the tag information, there is no guarantee that we can determine who it came from and therefore BChark Pay will not be able to provide a refund.
9.2 Disclosure of Your Refund Policy
BChark Pay is not responsible for Merchant refund policies. We do suggest Merchants have a clear refund policy for their customers (including, if applicable, “no refunds are allowed as all sales are final”). For certain industries, a refund policy may not be applicable (e.g. where a service is provided). If refunds are permitted, we recommend you to refund the amount of the initial purchase in the currency in which the item was priced.
9.3 Purchaser Complaints
Purchasers filing complaints with BChark Pay about a purchase will be forwarded to you for resolution. BChark Pay reserves the right to terminate accounts which receive excessive complaints.
9.4 Merchant Complaints
Merchants filing complaints regarding our processing service should complaints via email, phone or mail at [email protected] or 1.800.204.6203, or 3500 De Maisonneuve West, Suite 2401, Westmount, QC , 3Z 3C1, respectively.
10 Account Termination
10.1 Your Right to Close Your Account
These Terms apply only for as long as you use the Services. Once you cease using the Services, these Terms no longer apply, subject to Section 14.11 (Survival). You may close your BChark Pay account at any time. You will still be obligated to us for any fees incurred, if applicable, before the closure and we will remit to you funds not yet paid to you and associated with pre-closure sales. If your account balance is below our documented minimum transfer amount, you may be responsible for any applicable transactions fees that may be incurred in the funds transfer.
10.2 Our Right to Close or Suspend Your Account
We may terminate your account, at our discretion, upon notice to you via email or phone communication. We may also suspend your access to the Services if we suspect that you have failed to comply with these Terms, pose an unacceptable fraud risk to us, or if you provide any false, incomplete, inaccurate or misleading information. We will not be liable to you for any losses that you incur in connection with our closure or suspension of your account. Additionally, if your merchant account does not have a paid transaction for more than twelve consecutive months, BChark Pay reserves the right to suspend your account, disabling processing capabilities.
10.3 Effect of Account Closure
If your BChark Pay account is closed, you agree: (a) to continue to be bound by these Terms, as required by Section 14.11 (Survival) (b) to immediately stop using the Services, (c) that the license provided under these Terms shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that we shall not be liable to you or any third party for termination of access to the Services or for deletion of your information or account data.
You agree to indemnify BChark Pay, its affiliated and related entities, and any of its officers, directors, employees and agents from and against any claims, costs, losses, liabilities, damages, expenses and judgments of any and every kind (including, without limitation, costs, expenses, and reasonable attorneys’ fees) arising out of, relating to, or incurred in connection with any claim, complaint, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) the products or services sold by you through the Services, including but not limited to any claims for false advertising, product defects, personal injury, death or property damage; or (d) any other party’s access or use of the Services with your account information.
12 No Warranties
WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICES (AND OUR WEBSITE): WILL OPERATE ERROR-FREE OR THAT DEFECTS OR ERRORS WILL BE CORRECTED; WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED OR SECURE AT ANY PARTICULAR TIME OR LOCATION; ARE FREE FROM VIRUSES OR OTHER HARMFUL CONTENT. WE DO NOT ENDORSE, WARRANT, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE SERVICES OR THROUGH OUR WEBSITE, AND WE WILL NOT BE A PARTY TO NOR MONITOR ANY INTERACTIONS BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
13 Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGE MAY HAVE BEEN INCURRED. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, YOUR BChark Pay ACCOUNT, OR ANY INFORMATION CONTAINED THEREIN. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE SERVICES EXCEED THE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, BChark Pay will report annually to the Internal Revenue Service, as required by law, your name, address, employer identification number, the total dollar amount of the payments you receive in a calendar year and the total dollar amount of the payments you receive for each month in a calendar year.
You may not transfer or assign these Terms, or any rights granted by these Terms. You agree and acknowledge that we may assign or transfer these Terms.
Should any provision of these Terms be determined to be invalid or unenforceable under any law, rule, or regulation, such determination will not affect the validity or enforceability of any other provision of this Agreement.
Our failure to assert any right or provision in these Terms shall not constitute a waiver of such right or provision, and no waiver of any term shall be deemed a further or continuing waiver of such or other term.
14.6 Entire Agreement
You agree to accept communications from us in an electronic format, and agree that all terms, conditions, agreements, notices, disclosures or other communications that we provide to you electronically will be considered to be “in writing”.
14.8 Governing Law; Arbitration
This Agreement will be governed by and construed in accordance with the laws of the Canada without reference to conflict of law or choice of law provisions, and applicable federal law (including the Federal Arbitration Act). If a disagreement or dispute in any way involves the Services or these Terms and cannot be resolved between you and us with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding administration by the Canadian Arbitration Association (“CAA”), and will be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the CAA. You agree that the arbitration shall be held in the Quebec, Canada, or at any other location that is mutually agreed upon by you and us. You agree that the arbiter will apply the laws of Canada, consistent with the Federal Arbitration Act, and will honor and agree to all applicable statutes of limitation. You agree that, unless prohibited by law, there shall be no authority for any claims to be arbitrated on a class or representative basis, and arbitration will only decide a dispute between you and us. Arbitration proceedings must be initiated within one (1) year after the disagreement or dispute arises. If any part of this Arbitration clause is later deemed invalid as a matter of law, then the remaining portions of this section shall remain in effect, except that in no case shall there be a class arbitration.
We may update or change these Terms from time to time by posting the amended Terms on our website. Such updates or changes shall be effective at the time of posting. If you continue to use the Services after we provide notice of such changes, your continued use constitutes an acceptance of the amended Terms and an agreement to be bound by them. If you do not agree to the amended Terms, you must close your BChark Pay account per the termination section of this agreement and discontinue your use of the Services.
14.10 Force Majeure
Neither you nor we will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labor strife, riots, war, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control; provided that the party has procedures reasonably suited to avoid the effects of such acts.
The provisions of Sections 3.4 (Representations and Warranties), 4.2 (Security), 6 (Our Ownership of the Services and the BChark Pay Website), 7 (Advertising), 8.5 (Certain Deferrals), 11 (Indemnification), 12 (No Warranties), 13 (Limitation of Liability), and 14.8 (Governing Law; Arbitration) shall survive the termination of these Terms.