Payment Terms

Last updated: October 30, 2018

By using TNX Inc. (“RALY”) or subsidiaries (together with RALY collectively and individually according to context, “RALY,” “we,” “our,” or “us”) payment processing services (“Payment Services”), you agree to be bound by the General Terms of Use (“General Terms”) and these additional terms and conditions (“Payment Terms”). If you are using the Payment Services on behalf of a business, you agree that you accept all these terms and have authority to enter into these terms on behalf of that business. Payment Services may only be used for business purposes within the provinces and territories of Canada. Defined terms not otherwise defined herein will have the same meaning as those found in the General Terms. For the avoidance of doubt, RALY Canada processes all debit transactions on the Interac Network, and RALY, Inc. processes all other payment transactions.

Payment Services

1. Our Role

RALY is a payment facilitator that allows you to accept Cards from customers for the payment for goods and services. We are not a financial institution as defined in the Bank Act (Canada) and do not offer banking services as defined by the United States Department of Treasury. RALY’s Payment Services allow you to accept payments from any Canadian issued and most non-Canadian issued credit, card-not-present debit, collectively, “Cards”) bearing the trademarks of the American Express Company, Inc. (“American Express”), Discover Financial Services, Inc. (“Discover”), JCB Co., Ltd., Mastercard Inc. (“MasterCard”) and Visa Inc. (“Visa”) (together with the Interac Association and its and their respective affiliates, collectively, the “Networks”). We may remove or add Cards that we accept at any time without prior notice.

In order to serve in this role, we must enter into agreements with Networks, processors and acquiring banks. In some cases, the Networks require that any person that signs up for a RALY Account to use Payment Services (a “Seller”) and processes more than Network specified amounts of Card sales enter into an agreement directly with RALY’s acquiring bank. By accepting or otherwise agreeing to these Payment Terms, you agree to the terms and conditions of the “Commercial Entity Agreement” effective as of the date you process such specified amounts. If you fail to agree to the Commercial Entity Agreement, we may suspend or terminate your RALY Account. Similarly, if American Express considers you to be a high value customer, it may require that you maintain your agreement directly with American Express and designate RALY as your agent for American Express payments. If that is the case, we will notify you of such requirement.

2. Your Authorization

In connection with the Payment Services, you authorize us to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to settle the proceeds of each Card transaction that you authorize, less any applicable Fees (as defined in Section 4) (“Proceeds”). Your authorizations will remain in full force and effect until your RALY Account is closed or terminated. Our receipt of transaction funds satisfies your customer’s obligations to make payment to you. We will remit to you funds actually received by us on your behalf, less amounts owed to us, subject to any Chargeback (as defined in Section 18) or Reserve (as defined in Section 14) withheld or applied. This authorization also permits us to debit any of your linked bank accounts at any time for the purposes specified in these Payment Terms and the General Terms. You also agree to be bound by any applicable rules of Payments Canada.

3. Prohibited Industries

You may not use the Payment Services for the following businesses or business activities: (1) any illegal activity or goods, (2) paraphernalia that may be used for illegal activity, (3) buyers or membership clubs, including dues associated with such clubs, (4) credit counseling or credit repair agencies, (5) credit protection or identity theft protection services, (6) direct marketing or subscription offers or services, (7) infomercial sales, (8) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit, including re-importation of pharmaceuticals from foreign countries), (9) unauthorized multi-level marketing businesses, (10) inbound or outbound telemarketers, (11) prepaid phone cards or phone services, (12) rebate based businesses, (13) up-sell merchants, (14) bill payment services, (15) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races, (16) manual or automated cash disbursements, (17) prepaid cards, cheques, insurance or other financial merchandise or services, (18) sales of money-orders or foreign currency, (19) wire transfer money orders, (20) high-risk products and services, including telemarketing sales, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (23) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury (24) internet/mail order/telephone order of age restricted products (e.g., beer, wine), (25) cigarettes or tobacco, (26) occult materials, (27) hate or harmful products, (28) escort services, (29) bankruptcy lawyers or collection agencies engaged in the collection of debt, (30) hard alcohol or liquor, or (31) travel agency services.

4. Our Fees

You agree to pay the applicable fees listed on our Fee Schedule (“Fees”) for use of the applicable Payment Services. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance (as defined in Section 15) in your RALY Account. Subject to the General Terms and these Payment Terms, we reserve the right to change our Fees upon ninety (90) days’ advance notice. You must agree to the change in Fees to continue to use the Payment Services. All Balances and all Fees, charges, and payments collected or paid through the Payment Services are denominated in Canadian dollars, unless otherwise specified.

5. Processing Errors

We will attempt to fix processing errors we discover. If the error resulted in your receipt of fewer funds than you were entitled, we will credit your RALY Account for the difference. If the error results in your receipt of more funds than you were entitled, RALY will debit the extra funds from your RALY Account or your linked bank account. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of a processing error within sixty (60) days will be deemed a waiver of any right to amount applicable to the error. We will only correct transactions that you process incorrectly if you notify us of such an error.

Payment Account Setup

6. RALY Account

You must open a RALY Account to access any Proceeds. You confirm that you are either a legal resident of Canada, a Canadian citizen, or a business entity authorized to conduct business by the province(s) or territory(ies) in which you operate and that you are an authorized signatory for the business you represent. You must use your or your business’ true and accurate name when opening a RALY Account. This name will appear on the credit or debit card statements of your customers for all payments you accept using the Payment Services. If a transaction dispute results from your failure to use a reasonably descriptive user name, you agree to indemnify RALY for any costs stemming from such dispute.

7. Underwriting and Identity Verification

RALY will review the information you submit while signing up for the Payment Services. You authorize RALY to request identity verifying information about you, including, but not limited to, (a) a consumer and/or credit report that contains your name and address and may contain “credit information” such as age, occupation, place of residence, previous places of residence, marital status, spouse’s name and age, number of dependants, particulars of education or professional qualifications, places of employment, previous places of employment, estimated income, paying habits, outstanding debt obligations, cost of living obligations and assets and other personal information, and (b) to the extent applicable, a confirmation from the appropriate governmental authority of your corporation’s legal existence. RALY may periodically obtain additional reports to determine whether you continue to meet the requirements for a RALY Account. You permit RALY to share information about you and your application (including whether you are approved or declined), and your RALY Account with your bank or other financial institution, or as otherwise specified in the Privacy Policy. RALY or its processor and/or acquiring bank, which may or may not be located in Canada, may conclude that you will not be permitted to use the Payment Services.

8. Requests for Additional Information and Inspection

RALY may request additional information from you at any time. For example, RALY may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, a business license, or other information. RALY may also ask for permission to inspect your business location. If you refuse any of these requests, your RALY Account may be suspended or terminated.

Use of Your RALY Account for Payment Services

9. Access to Proceeds

We will settle Proceeds to your verified bank account, subject to the payout schedule described in Section 11. If RALY is not able to debit or credit the bank account you link to your RALY Account, that bank account will be de-linked from your RALY Account.

10. Right of Setoff

To the extent permitted by applicable law, you grant us a security interest in, as well as a right of setoff against, and assign, convey, deliver, pledge and transfer to us, as security for repayment of any obligations due under these Payment Terms, all of your right, title, and interest in and to all of your accounts with us. You authorize us, without prior notice to you and irrespective of (i) whether we have made demand under these Payment Terms or any other related agreements; and (ii) whether the obligation is contingent, matured or unmatured, to the extent permitted by law, to collect, charge, and/or setoff all sums owing on the indebtedness against any and all such accounts and other obligations, and our option, to administratively freeze or direct any third party bank holding the account to freeze all such accounts to allow us to protect our security interest, collection, charge and setoff rights as provided for in this section. For clarity, you agree that RALY Canada may setoff amounts owed against funds held or processed by RALY, Inc. and that RALY, Inc. may setoff amounts owed against funds held or processed by RALY Canada.

11. Payout Schedule

RALY will automatically initiate a payout of Proceeds to your valid, linked Canadian bank account at the end of the business day. If you adjust your business’s close of day to a custom time, RALY will group Proceeds for the 24-hour period preceding your custom time and initiate a payout at the end of that business day. RALY will initiate a payout of Proceeds received on non-business days before the next business day.

12. Availability of Proceeds

We may defer payout or restrict access to your Proceeds if we need to conduct an investigation or resolve any pending dispute related to your use of the Services. We also may defer payout or restrict access to your Proceeds as necessary to comply with applicable law or court order, or if requested by any governmental entity.

13. RALY Account History

When a payment is made to your RALY Account, we will update your RALY Account activity on the website and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your RALY Account activity, including monthly statements, are available on our website for up to one year of account activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your RALY Account and your use of the Payment Services, and (b) reconciling all transactional information that is associated with your RALY Account. If you believe that there is an error or unauthorized transaction activity is associated with your RALY Account, you must contact us immediately.

14. Reserve for Holding Funds

We may withhold funds by temporarily suspending or delaying payment of Proceeds to you and/or designate an amount of funds that you must maintain in your RALY Accounts or in a separate reserve account (a “Reserve”) to secure the performance of your obligations under any agreement between you and RALY. We may require a Reserve for any reason related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover potential losses to RALY. The Reserve may be raised, reduced or removed at any time by RALY, in its sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in RALY’s favor, or otherwise as RALY or its processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your RALY Accounts, including any funds (a) deposited by you, (b) due to you, or (c) available in your bank account, or other payment instrument registered with us. Upon acceptance of these Payment Terms, you confirm that you have read, understood and accepted RALY’s Pre-Authorized Debit Agreement. You agree to execute any additional documentation as may be required from time to time for us to debit your bank account as described in these Payment Terms. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve or any bank account linked to any of your RALY Accounts, without prior notice to you, to collect amounts that you owe us. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as we hold funds in your Reserve.

15. RALY Account Balances

While you have funds in your RALY Wallet (your “Balance”), your Balance will be co-mingled and held with other participants’ funds in one or more pooled accounts at one or more banks by us on your behalf and for the benefit of you and others holding balances (each a “Pooled Account”). We have sole discretion over the establishment and maintenance of any pooled account. We will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the Payment Services, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve.

16. Our Set-off Rights

To the extent permitted by law, we may set off against the Balances for any obligation you owe us under any agreement with RALY (e.g., Chargebacks or refunds). If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered in your RALY Account or any connected RALY Account (as well as set off against any Balance in any connected RALY Account). Your failure to fully pay amounts that you owe us on demand will be a breach of these terms. You are liable for any of our costs associated with collection in addition to any amounts owed, including legal fees and expenses, and collection agency fees.

17. Dormant RALY Accounts

If you do not process payments through your RALY Account for an extended period of time or have not linked a valid bank account, you may have a Balance that is deemed “unclaimed” or “abandoned” under your province’s law. If this occurs, RALY will provide you with notice as required by applicable law and instructions for how to deposit your Balance. If funds still remain in your RALY Account, RALY will transfer such funds to the applicable provincial government as required by applicable law or, as permitted, to RALY.

Chargebacks

18. Your Liability for Chargebacks

There may be times when your customer may not be the authorized user of the Card or your customer may otherwise contest the transaction. In these instances, the amount of a transaction may be reversed or charged back to your RALY Accounts (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a customer or its financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these terms. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.

19. Our Collection Rights for Chargebacks

For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may recoup the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by a Network or our processor from your RALY Accounts (including any Reserve), any proceeds due to you, or any bank account or other payment instrument linked to any of your RALY Accounts. If you have pending Chargebacks, we may delay payouts from your RALY Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you until such time that: (a) a Chargeback is assessed due to a customer complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which your customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including legal fees and expenses, incurred by us for the collection of all amounts unpaid by you.

20. Excessive Chargebacks

If we believe you might incur, or you are incurring, an excessive amount of Chargebacks, we may establish additional conditions governing your RALY Account, including (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the Payment Services.

21. Contesting Chargebacks

You will assist us when requested, at your expense, to investigate any of your transactions processed through the Payment Services. To that end, you permit us to share information about a Chargeback with the customer, the customer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release corresponding reserved funds to your RALY Account. If a Chargeback dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

Compliance with Network Rules and Laws

22. Restricted Use

You will not act as a payment facilitator or otherwise resell the Payment Services to any third party. You will not use the Payment Services to handle, process or transmit funds for any third party. You also may not use the Payment Services to process cash advances.

23. Unauthorized or Illegal Use

You will only accept Cards for transactions that are allowed by applicable law. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of these terms or any other agreement with RALY, or that it exposes you, your customers, other RALY Sellers, our processors or RALY to harm. Harm includes fraud and other criminal acts. If we suspect that your RALY Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your RALY Account, and any of your transactions with law enforcement and, as deemed necessary by RALY, our payment processing and financial institution partners.

24. Assignment of Receivables

With the exception of your participation in a merchant cash advance or other similar merchant financing programs, including RALY Capital, or as otherwise required by applicable law, you will not assign Card receivables or proceeds due to you under these terms to any third party.

25. Applicable Network Rules

By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the Networks (“Network Rules”). The Networks amend their rules and regulations from time to time. RALY may be required to change these terms in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at https://www.visa.ca, https://www.mastercard.ca, and https://www.americanexpress.com/ca/merchantguide. In the event of inconsistency between a Network Rule and these Payment Terms, and except as otherwise agreed between RALY and the Network, the Network Rule shall apply.

26. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Payment 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. RALY specifically disclaims any liability for Taxes. We will report payments and other information to regulatory and government authorities to the extent required by applicable law.

27. Network Logos and Marks

Your use of Network logos and marks (“Marks”) is governed by the Network Rules; you must familiarize yourself with and comply with these requirements. The Networks are the sole and exclusive owners of their respective Marks. You will not contest the ownership of the Marks, and any Network may prohibit you from using its Marks for any reason and at any time. RALY may require you to make modifications to your Website or other advertising and signage in order to comply with Network Rules related to the Marks.

28. PCI Compliance

You should not store or accept card information from any customers. If you store, process or transmit cardholder data, you will comply with the applicable Payment Card Industry Data Security Standards (PCI-DSS), as well as any requirements under the Network Rules. You will cooperate in forensic investigations as required by RALY or its partners. For additional information, including tools to help you assess your compliance, see https://www.visa.com/cisp and https://www.mastercard.com/sdp.

29. Failure to Comply with Network Rules or Security Standards

Notwithstanding Section 34 of these terms or Section 15 of the General Terms, you understand that your failure to comply with the Network Rules or the PCI-DSS security standards, including the compromise of any Card information, may result in fines or other losses to RALY. You will indemnify us and reimburse us immediately for any fines or losses directly or indirectly caused by your and your agents’ actions.

Your Additional Obligations

30. Receipts

You must make a written receipt available to your customers for any transaction greater than $15. You may give your customers the option to receive or decline a written receipt.

31. Registered Charities

If you operate a registered charity, you may offer RALY electronic receipts to your donors as a convenience, by completing the required fields in the “Account” section of our website. You acknowledge that not all payments made to your organization may be eligible for classification as “tax deductible to the extent allowed by law,” and you assume full responsibility for the classification of your transactions. RALY specifically disclaims any liability in this regard.

32. Customer Service

You are solely responsible for all customer service policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any RALY Account, payment, Card processing, debiting or crediting.

If you have a complaint, please contact RALY Support, including by telephone with your customer code at 1-800-316-3070.

If you have a complaint in respect of the Code of Conduct for the Credit and Debit Card Industry in Canada, please contact RALY here. You also may contact the Financial Consumer Agency of Canada (the “FCAC”) by writing to the address below. You can reach the FCAC in English at 1-866-461-3222 or in French at 1-866-461-2232 from anywhere in Canada, or via facsimile at 1-613-941-1436. You can also e-mail the FCAC at [email protected] or visit https://www.fcac-acfc.gc.ca.

Financial Consumer Agency of Canada
6th Floor, Enterprise Building
427 Laurier Ave. West
Ottawa, Ontario K1R 1B9, Canada

33. Refunds and Returns

By accepting Card transactions through the Payment Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your RALY Account in accordance with these Payment Terms and Network Rules. Network Rules require that you disclose your return or cancellation policy to customers at the time of purchase. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If your refund policy prohibits returns or is unsatisfactory to the customer, you may still receive a Chargeback relating to such sales. You can process a refund through your RALY Account up to one hundred twenty (120) days from the day you accepted the payment. If you use RALY Online Store, you may not be able to process a partial refund. If your available RALY Balance is insufficient to cover the refund, RALY will withdraw up to the requested refund amount (the sale amount minus the initial transaction fee) from a payment instrument registered with your RALY Account or any connected RALY Account and credit it back into your customer’s Card. The Fees are also refunded by RALY, so the full purchase amount is always returned to your customer. RALY has no obligation to accept any returns of any of your goods or services on your behalf.

34. Additional Indemnity

In addition to Section 15 of the General Terms, you will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any transaction submitted by you through the Payment Services (including the accuracy of any content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you).

35. Additional Representations, Warranties, and Covenants

In addition to Section 16 of the General Terms, with each Card transaction you process through the Payment Services, you represent, warrant and covenant to us that: (a) the Card transaction represents a bona fide sale; (b) the Card transaction accurately describes the goods and/or services provided to the customer; (c) you will fulfill all of your obligations to the customer and will resolve any dispute or complaint directly with the customer; (d) you and the Card transaction comply with all federal, provincial, territorial, and local laws, rules, and regulations applicable to you and your business, including any applicable tax laws and regulations; (e) except in the ordinary course of business, you are not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of your entity; and (f) you are not submitting a transaction involving your own Cards (except for reasonable test transactions).

Termination

36. Termination of Payment Services

RALY may terminate your use of the Payment Services at any time for any reason. Any termination of these terms does not relieve you of obligations to pay Fees or costs accrued prior to the termination, Chargebacks, and any other amounts owed to us as provided in these Payment Terms or the General Terms. If your access to Payment Services has been terminated, you may still be permitted to use RALY’s other products, subject to our discretion.

37. Payment Services Upon Closure of Your RALY Account

Closure of your RALY Account will cancel any pending transactions. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out according to your payout schedule, subject to the other conditions in these Payment Terms. If an investigation is pending at the time you close your RALY Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds, we will release those funds to you.

38. Survival

The following sections will survive termination of these Payment Terms, in addition to those that survive under Section 12 of the General Terms: 5 (Processing Errors), 7 (Underwriting and Identity Verification), 9 (Access to Proceeds), 10 (Right of Setoff), 11 (Payout Schedule), 12 (Availability of Proceeds), 13 (RALY Account History), 14 (Reserve for Holding Funds), 15 (RALY Account Balances), 16 (Our Set-off Rights), 17 (Dormant RALY Accounts), 18 (Your Liability for Chargebacks), 19 (Our Collection Rights for Chargebacks), 20 (Excessive Chargebacks), 21 (Contesting Chargebacks), 26 (Taxes), and 32 (Customer Service).

39. Language

The parties have requested that these Payment Terms and all related documents be drawn up in English only. Les parties aux présentes ont exigé que ces modalités de paiement et tous les documents qui s’y rattachent soient rédigés en anglais seulement.