Terms & Conditions


Merchant Services Agreement

THIS DOCUMENT DESCRIBES THE AGREEMENT

BETWEEN:

Our Clients

(“Merchants”)

AND

Peloton Technologies, Inc.

Suite 8424, 709 Yates St

Victoria, BC V8W 3S1

(“Peloton”)

WHEREAS:

A. Peloton carries on the business of providing resources and services for electronic payment processing; and

B. The Merchant wishes to retain Peloton for its services for;

Electronic Payment Processing

NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the premises and the covenants, agreements, representations, warranties and payments hereinafter contained, and provided for, the parties hereto covenant and agree as follows:


1. DEFINITIONS

The following terms used in this Agreement shall have, except where inconsistent with the context, the following meanings:

(a) “Business Day” means any day, other than a Saturday, Sunday or statutory holiday observed in the Province of British Columbia;

(b) “Cardholder” means a person, other than the Merchant or a person who is not at arm’s length with the Merchant, whose name is embossed on a Charge Card or a person whose signature appears in the signature panel on the reverse of a Charge Card;

(c) “Charge Card” means an unexpired VISA card, MASTERCARD and/or any card which the Merchant is obliged by agreement with a Third Party or Peloton to honour, and which such Third Party and Peloton agree may be processed through the Electronic Commerce Facilities;

(d) “Confidential Information” means information of the Merchant’s business in accordance with paragraph 10.4 of this Agreement

(e) “Cut-over” means the time selected by Peloton to be the time from which transactions start to be considered as having been made the next Business Day, which time may be changed at the discretion of Peloton with Notice to the Merchant;

(f) “Discount Rate” means the merchant discount rate payable for each Transaction payable to the bank, expressed as a percentage, which is set by the bank and provided to Peloton and/or the Merchant from time to time.

(g) “Electronic Commerce Facilities” means Peloton’s computer software and hardware and all other computer software and hardware that enables the processing of Electronic Commerce Transactions over the Internet;

(h) “Electronic Commerce Transaction” means a Transaction between the Merchant and a Cardholder over the Internet using Electronic Commerce Facilities;

(i) “Merchant Account” means the bank account held by the Merchant referred to in Schedule “B” of this Agreement;

(j) “Notice” means Notice in accordance with Paragraph 15 of this Agreement;

(k) “Peloton Account” means the bank account held by Peloton and any other bank account(s) as designated by Peloton;

(l) “sale” and “sell” mean selling, renting or otherwise distributing merchandise or services;

(m) “Security Deposit” means the amount of the deposit held by Peloton referred to in Schedule “A” of this Agreement.

(n) “Transaction” means the sale of merchandise or services by the Merchant initiated by use of a Charge Card;

(o) “Third Party” means a person with whom the Merchant has an agreement to honour a Charge Card.

2. ELECTRONIC COMMERCE PROCEDURES

2.1 The Merchant shall offer merchandise and/or services for sale to Cardholders by means of the Merchant’s or Peloton’s website on the Internet. Cardholders may pay for merchandise or services with a Charge Card by means of the Electronic Commerce Facilities.

2.2 The Merchant shall act on all instructions communicated from time to time by Peloton by means of the Electronic Commerce Facilities.

2.3 The Merchant shall not charge any sum to a Cardholder and shall not submit or permit to be submitted an Electronic Commerce Transaction that has not first been authorized by Peloton by means of the Electronic Commerce Facilities.

2.4 The Electronic Commerce Facilities shall permit the Cardholder to submit the following required information to Peloton with respect to a proposed Electronic Commerce Transaction:

a) number of the Charge Card

b) expiry year and month of the Charge Card

c) name of Cardholder

d) amount to be charged by Cardholder

e) security code of the Charge Card (CVD)

2.5 With respect to a proposed Electronic Commerce Transaction, the Electronic Commerce Facilities shall provide Peloton with the identifier for the Merchant.

2.6 The Merchant shall provide a Cardholder with an electronic confirmation of the Transaction by way of the Electronic Commerce Facilities if the Electronic Commerce Transaction has been authorized by Peloton.

2.7 Following authorization of an Electronic Commerce Transaction by Peloton, the Merchant shall provide Peloton with confirmation by means of the Electronic Commerce Facilities when the delivery of merchandise and/or services to the Cardholder has commenced, whereupon Peloton shall process the Electronic Commerce Transaction for settlement unless the authorization has expired. If an authorization has expired, the Electronic Commerce Transaction shall be re-submitted for authorization.

3. SETTLEMENT

3.1 Settlement effected by Peloton for Electronic Commerce Transactions processed prior to the Cut-over and prior to 7:00 p.m. in Victoria, British Columbia shall be credited on the same Business Day as the Merchant confirms to Peloton by means of the Electronic Commerce Facilities that delivery of merchandise and/or services to the Cardholder has commenced. Settlement effected by Peloton after 7:00 p.m. in Victoria, British Columbia shall be credited within 48 Business Day hours of the day on which the Merchant confirms to Peloton by means of the Electronic Commerce Facilities that delivery of merchandise and/or services to the Cardholder has commenced.

3.2 Peloton reserves the right to retain funds on deposit in the Peloton Account for a period of one (1) year after the termination of this Agreement, in respect of chargeback liability incurred after the termination of this Agreement. Peloton further reserves the right to freeze funds in the Peloton Account due to chargeback liability, fraud, alleged fraud, bankruptcy or insolvency of the Merchant during the term of this Agreement.

3.3 Peloton shall settle Electronic Commerce Transactions with the Merchant by transferring funds from the Peloton Account to the Merchant Account as follows:

a) the amount to be paid to the Merchant will be calculated on a daily basis.

b) by a method for the merchant to initiate settlement to the Merchant Bank Account.

c) the Settlement due to the Merchant is equal to the sum of all Cardholder charges for approved transactions, which have been delivered within the specified time period, less net reserve amounts, less the sum of all Cardholder charges denied, refused or charged back by the Charge Card association or bank during the period, less all refunds processed on account of Cardholder charges during the period less the amounts and fees of Peloton, less all taxes, penalties, charges and other items reimbursable or payable to Peloton under the terms and conditions of this Agreement, or otherwise occurring during the period.

d) Peloton may, in its reasonable judgment, temporarily adjust the amount payable, as security against fraudulent activity or future chargebacks upon notification to the Merchant.

3.8 Should the amount of any and all deductions as referred to in paragraph 3.3 above exceed the sum of all Cardholder charges for approved Transactions which have been delivered within the specified time period, the Merchant agrees forthwith, pay to Peloton any such excess.

4. PELOTON'S AND THE MERCHANT’S RESPONSIBILITIES

4.1 Peloton and the Merchant shall sell merchandise or services to the Cardholder at a unit price not in excess of the Merchant’s ticketed or posted price for such merchandise or service;

4.2 Peloton and the Merchant shall not impose any fee or other charges for the use of the Charge Card as a means of payment;

4.3 The Merchant shall not require a minimum amount of merchandise be purchased or services performed before accepting the Charge Card;

4.4 Peloton and the Merchant shall not make any cash advance to a Cardholder, Peloton, the Merchant or any other person as a part of an Electronic Commerce Transaction, or include the amount of any cash advance in the sum being invoiced to a Cardholder;

4.5 The Merchant shall not attempt to reduce or disguise the amount of any Electronic Commerce Transaction by the use of multiple Transactions (known as split ticketing);

4.6 The Merchant shall retain, for a period of eighteen (18) months, all evidence and records of Electronic Commerce Transactions, including all evidence of the delivery of merchandise and/or services to Cardholders. Within eight (8) Business Days, of a request by Peloton, the Merchant shall provide Peloton with any such documentation.

4.8 The Merchant shall not sell any of the following merchandise or services:

a) lottery tickets;

b) escort and dating services;

c) adult telephone call services;

d) collection agency services;

e) cheque cashing services;

f) adult videos;

g) massage parlour services;

h) time share sales;

i) gambling;

j) extended car warranties except major car dealerships;

k) weight loss vitamins and pills;

l) cult material;

m) pre-paid telephone cards;

n) bail;

o) credit reporting;

p) resume preparing services;

q) pyramid sales;

r) satellite television sales, except if legal in Canada; and

s) any other merchandise or services as advised by Peloton from time to time in its absolute discretion.

4.9 The Merchant shall ensure that the Merchant’s website shall contain at a minimum the following:

a) a complete description of merchandise and services being offered;

b) return and refund policies;

c) all customer service contact information including but not limited to electronic mail address or telephone number;

d) country and transaction currency by indicating that prices are payable in Canadian dollars or US dollars;

e) that all payments are processed by Peloton;

f) the description that will appear on the Cardholder’s Charge Card statements;

g) export restrictions if applicable;

h) delivery policy; and

i) country in which Merchant is officially registered and located

4.10 The Merchant agrees to submit to Peloton for its prior approval any representation on the Merchant’s website or any advertising including without limitation the use of the name or trademarks of Peloton or any reference to this Agreement. The Merchant shall not indicate or imply that Peloton endorses any of the Merchant’s merchandise or services. The Merchant shall not indicate or imply that Peloton or a Charge Card endorses or certifies the safety or security of the Electronic Commerce Facilities.

4.11 The Merchant shall not submit or permit to be submitted an Electronic Commerce Transaction for authorization and settlement to any other financial institution or processing agent in Canada other than through Peloton.

4.12 The Merchant shall not attempt to receive or receive credit or payment more than once from Peloton or from any source with respect to the same Electronic Commerce Transaction.

4.13 The Merchant shall not submit an Electronic Commerce Transaction in respect of fictitious or fraudulent transactions.

4.14 The Merchant shall not factor, sell or otherwise transmit Electronic Commerce Transactions (except as permitted in this Agreement).

4.15 The Merchant shall not submit or permit to be submitted any Electronic Commerce Transactions that do not relate to Transactions of the Merchant.

4.16 The Merchant shall make available to Peloton all information and materials which Peloton considers pertinent to the performance of its services under this Agreement.

4.17 The Merchant agrees to comply, and take all necessary and advisable measures to ensure that their personnel comply with all the terms of this Agreement and with all rules, instructions, manuals and procedures which Peloton may issue from time to time in connection with this Agreement.

4.18 Peloton shall notify the Merchant of current internet service outages or any potential outages within a reasonable time of discovering an outage.

4.19 Peloton shall provide the Merchant with monthly transaction reports to be provided manually in an appropriate format until automated transaction reporting is implemented. Upon the request of the Merchant:

(a) Peloton shall provide additional transaction reports as mutually agreed upon;

(b)The Merchant understands and agrees that there may be additional charges for new reports depending on the complexity;

(c) The Merchant shall pay all invoices for additional transaction reports within 30 days of receipt; and
(d) Peloton reserves the right to charge interest on any unpaid balances at the rate of 24% per annum.

4.20 The Merchant shall agree to the following terms and conditions when accepting and processing Charge Cards from American Express. The merchant shall also agree to the terms as detailed in the American Express Merchant Operating Guide found at ( www.americanexpress.ca/merchantguide ).

(a) The Merchant authorizes Peloton to disclose and submit information on Transactions to American Express on behalf of the Merchant, including related data on the Merchant, for the purposes for receiving settlement;

(b) The Merchant authorizes American Express to utilize the submitted information to process Charge Cards, to operate and promote their payment network, to conduct analytics and reporting, to engage in commercial marketing communications, to engage in direct communications with the Merchant, and for any other administrative and lawful business purposes;

(c) The Merchant shall inform Peloton in writing if the Merchant wishes to opt-out of marketing communications from American Express. By opting out, the Merchant will only receive critical communications from American Express for transactions and other business purposes;

(d) The Merchant acknowledges its obligations to ensure data quality and that Transaction Data and Cardmember information is processed promptly, accurately and completely, and complies with the American Express Technical Specifications;

(e) The Merchant shall ensure that the Merchant’s website shall not contain any materials that may be considered damaging or that may cause harm to others and the reputation of American Express brand;

(f) The Merchant shall not submit Electronic Commerce Transactions on behalf of any other party or redirect payments in any capacity unless required to do so by law;

(g) The Merchant acknowledges that Peloton and American Express are not responsible for any of the Merchant’s damages or losses in revenue, profit, goodwill, or any other tangible or intangible assets under this Agreement;

(h) The Merchant shall not engage in currency conversion or charge for currency conversion, unless permitted to do so, when submitting Electronic Commerce Transactions to Peloton;

(i) The Merchant shall not assign to any third party any payments due to it under their respective Merchant Agreements, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Peloton, its affiliated entities and/ or any other cash advance funding source that partners with Peloton or its affiliated entities, without consent of Peloton and American Express;

(j) Peloton and the Merchant agree to confer third-party beneficiary rights, but not obligations, on American Express, allowing American Express to enforce the terms and conditions of this Agreement;

(k) The Merchant acknowledges its right to opt out of accepting American Express Charge Cards at any time and still accept other payment products without penalty;

(l) The Merchant agrees to display the American Express logo and honour American Express Charge Cards according to the following references from the Merchant Operating Guide:

o First paragraph of Section 3.1, "Card Acceptance".

o Second paragraph of Section 3.2, "Treatment of the American Express Brand".

o Last paragraph of Section 3.2, "Treatment of the American Express Brand".

o First and third paragraphs of Subsection 3.2.1, "Treatment of the American Express Marks".

o Second paragraph, and first sentence of third paragraph, of Section 3.5, "Treatment of American Express Cardmember Information".

(m) The Merchant acknowledges its obligations to comply with Chapter 4, “Transaction Processing” of the American Express Merchant Operating Guide;

(n) The Merchant acknowledges its obligations to comply with Chapter 5, “Authorization” of the American Express Merchant Operating Guide;

(o) The Merchant acknowledges its obligations to comply with Chapter 6, “Submission” of the American Express Merchant Operating Guide;

(p) The Merchant acknowledges its obligations to comply with Chapter 8, “Protecting Cardmember Information” of the American Express Merchant Operating Guide, including the need to maintain PCI DSS compliance;

(q) The Merchant acknowledges its obligations to comply with Chapter 11, “Chargeback and Inquiries” of the American Express Merchant Operating Guide;

(r) The Merchant agrees to abide by additional policies and procedures, as defined in Chapter 12 of the American Express Merchant Operating Guide, if the Merchant is classified as operating in any of the follow industries: rental establishments, auto dealers, business-to-business/wholesale distribution, charitable donations, insurance, oil/petroleum, parking, restaurants, telecommunications, timeshares, travel industries, government/utilities/education, transit contactless transactions, cannabis, taxicabs and limousines;

(s) The Merchant agrees to uphold its customer service obligations, including the need to maintain relevant customer service information;

(t) Peloton may, at any time, terminate the Merchants right to accept Charge Cards if any of the provisions of this Agreement are breached;

(u) Peloton may, at any time, withdraw its obligations to provide Electronic Payment Processing services to the Merchant if required to do so by American Express under the provisions of this Agreement or if the Merchant engages in fraudulent behavior or misconduct;

(v) The Merchants' refund policies for purchases on the American Express card must be as favorable as its refund policy for purchase on any other payment product, and the refund policy be disclosed to Cardmembers at the time of purchase an in compliance with applicable law;

(w) The Merchant shall not bill or collect from Cardmembers for any purchase or payment made on a Card unless chargeback has been exercised, the Merchant has fully paid for such charge, and it otherwise has the right to do so;

(x) The Merchant shall comply will all laws, rules, and regulations that are applicable to the Merchant’s business;

(y) The Merchant shall remove all American Express logos from the Merchant’s website and wherever else they are displayed upon termination of this Agreement;

(z) The Merchant agrees to abide by Chapter 13, “Dispute Resolution” of the American Express Merchant Operating Guide in relation to Claims involving American Express, except as appropriate to conform with the phrasing and terminology of this Agreement

5. REFUSALS AND CHARGE BACKS

5.1 Notwithstanding any approval of an Electronic Commerce Transaction which may be given by or on behalf of the issuer of a Charge Card, Peloton may charge back to the Merchant Account or refuse to credit the Merchant Account in whole or in part, the total amount of any Electronic Commerce Transaction in any of the following circumstances (and shall notify the Merchant of any such refusal or chargeback):

(a) the merchandise sold by way of Electronic Commerce Transaction,

(i) has been returned to Peloton or the Merchant or has not been received by the Cardholder; or

(ii) has been claimed by the Cardholder to have been returned to Peloton or the Merchant, or not to have been received;

(b) the Cardholder claims that the merchandise or services sold by way of Electronic Commerce Transaction have not been received, are not as described, are defective or were returned and Peloton or the Merchant failed to provide a refund to the Cardholder;

(c) the Electronic Commerce Transaction is or is alleged by the Cardholder to be illegal, null or invalid;

(d) the Cardholder has disputed the authorization, authenticity or validity of any Electronic Commerce Transaction;

(e) Peloton has credited the Merchant more than once for the same Electronic Commerce Transaction;

(f) The Merchant has done anything prohibited by the terms of this Agreement;

(g) The Merchant has defrauded or attempted to defraud Peloton;

(h) The Merchant has failed to comply with this Agreement;

(i) The Electronic Commerce Transaction utilizes a credit card which Peloton has notified the Merchant in advance not to honour;

(j) The credit card used in an Electronic Commerce Transaction was refused an authorization by Peloton; or

(k) any other circumstance in respect of which Peloton in good faith deems it appropriate to refuse such credit or make such chargeback.

5.2 The Merchant acknowledges that Electronic Commerce Transactions carry a greater risk of repudiation by Cardholders and refusals and chargebacks because the Transaction is conducted over the Internet and not in an environment where a Merchant and a Cardholder are both present in person and a Charge Card is presented in order to complete a Transaction.

5.3 In particular, an Electronic Commerce Transaction does not allow for the following:

a) inspection of merchandise or services by the Cardholder;

b) inspection by the Merchant of Charge Cards including the account number, name, expiry date and signature;

c) signing of an imprinted sales draft by the Cardholder; and

d) comparison of signature on sales draft with signature on Charge Cards.

5.4 The Merchant shall bear the risk of refusals and chargebacks that are related in any way to the differences between an Electronic Commerce Transaction and a Transaction that is not an Electronic Commerce Transaction as set out in paragraphs 5.2 and 5.3 herein.

6. ELECTRONIC COMMERCE FACILITIES AND SECURITY

6.1 The Electronic Commerce Facilities shall operate such that only Peloton shall have access through the Electronic Commerce Facilities to Charge Card particulars. Any Cardholder information that is obtained by Peloton and the Merchant through the Electronic Commerce Facilities shall only be used by Peloton and the Merchant in accordance with the terms of this Agreement.

6.2 Peloton shall be responsible to ensure that the Electronic Commerce Facilities operate securely so as to protect Cardholders from the unauthorized disclosure of information with respect to Charge Cards.

6.3 Peloton has the right at the commencement of this Agreement and in its absolute discretion at any time thereafter with one (1) Business Day prior Notice and during business hours, to inspect and certify the Electronic Commerce Facilities in accordance with its security specifications. The Merchant agree to allow Peloton’s employees and agents with one (1) Business Day prior Notice and during business hours to have access to the Merchant’s premises and to the Electronic Commerce Facilities as required for inspection and certification.

6.4 Notwithstanding any other term of this Agreement, if at any time the security standards of the Electronic Commerce Facilities do not comply with Peloton's standards, Peloton may immediately require and the Merchant shall forthwith suspend operation of the Electronic Commerce Facilities until such time as Peloton permits the Electronic Commerce Facilities to be re-activated. The Merchant shall be provided a minimum of ten (10) days from the date that Peloton required that the Merchant suspend operation of the Electronic Commerce Facilities in order to comply with Peloton's security standards. If the Electronic Commerce Facilities do not comply with Peloton's security standards within ten (10) days from the date that Peloton required that the Merchant suspend operation of the Electronic Commerce Facilities or such additional period of time as determined by Peloton, in its absolute discretion, Peloton may terminate this Agreement with Notice to the Merchant. Provided further, that if the Merchant does not suspend operation of the Electronic Commerce Facilities in accordance with a requirement by Peloton, Peloton may terminate this Agreement with Notice to the Merchant.

6.5 The Merchant recognizes and acknowledges that the Electronic Commerce Transaction is dependent upon the ability and agreement of Peloton’s contract processors to provide such services, as well as the cooperation and continued cooperation of various Charge Card issuers. The compatibility and/or availability of any particular Charge Card issuer with Peloton’s Electronic Commerce Facilities is subject to modification without notice. The Merchant recognizes and acknowledges that the availability and content of Electronic Commerce Transaction authorizations are controlled by the Charge Card issuers subject to their respective rules and regulations and are not under the control of Peloton.

7. TERM, FEES AND PAYMENT

7.1 The Merchant agrees to pay Peloton for its services and for the term hereunder as set out in Schedule “A” to this Agreement. All fees, Discount Rate, charges or adjustments together with all applicable taxes applicable thereto (if any) will be billed to the Merchant monthly and paid by being deducted firstly from the amounts due to the Merchant hereunder or may be charged to the Merchant Account.

7.2 Fees for Peloton’s services are based upon assumptions associated with the anticipated annual volume and average transaction size. Peloton reserves the right to modify the base rates with 30 days prior Notice if the total monthly volume and/or average transaction size is below the threshold level as set out in Schedule “A”.

7.3 Peloton reserves the right to modify the base rates as set out in Schedule “A” at any time in conjunction with a suppliers’ base rate increase.

7.4 An e-mail will be delivered to the Merchant providing notice that a statement is available online to review monthly activity. Notice will be provided two (2) business days prior to the payment due date and such notice is agreed to by the Merchant. Statements should be reviewed monthly and any discrepancies in the statement fees, settlement or other charges should be brought forward within 30 days of the statement date. After this review period, charges are considered valid.

7.5 The Merchant authorizes Peloton to debit the Merchant Account for fees payable to Peloton on an ongoing basis for as long as the service is being provided. The Merchant acknowledges that delivery of this authorization to Peloton constitutes delivery to the branch of the financial institution at which the Merchant maintains an account and that such financial institution is not required to verify that the payment(s) are drawn in accordance with this authorization. Should the payment be returned, a $20 fee shall be applied. The Merchant will notify Peloton in writing of any changes in the account information or e-mail information prior to the next payment date.

7.6 All fees, charges and adjustments payable by the Merchant, the amount of any charge-back or credit issued by the Merchant and any other liability to Peloton in accordance with this Agreement shall constitute a debt for which the Merchant is liable and payable on demand to Peloton for which Peloton may debit the Merchant Account, without prior written Notice to the Merchant. In the event that any such debit results in an account overdraft, the Merchant will, on demand, pay Peloton the amount of such overdraft, together with applicable interest in accordance with Peloton’s Account agreement.

8. DISPUTES

The Merchant shall maintain a fair policy for the exchange or return of, or adjustments on, merchandise and services purchased by Charge Card.

9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PELOTON

All obligations of Peloton under this Agreement are subject to Peloton’s satisfactory review of the client application that will be integrated with the Electronic Commerce Facilities.

10. ACCESS TO INFORMATION AND CONFIDENTIALITY

10.1 Peloton and the Merchant agree that, in Peloton’s sole discretion, Peloton may obtain from or provide to others whatever commercial, credit or other information Peloton deems appropriate with respect to the Merchant and the principals of the Merchant.

10.2 Peloton shall have the right during business hours and upon providing one day prior Notice

to the Merchant to have access to, examine, and verify all records of the Merchant pertaining to Electronic Commerce Transactions processed under this Agreement.

10.3 The Merchant shall not, without Peloton’s and Cardholder’s consent, sell or provide to, purchase from or exchange with any third party any Cardholder names, account numbers, addresses nor any other information obtained from Charge Cards.

10.4 Peloton acknowledges that in the performance of its responsibilities hereunder, Peloton may have access to confidential information and records including business plans, designs and trade secrets of the Merchant and its customers (the “Confidential Information”). During and after the term of this Agreement, Peloton shall not, directly or indirectly, disclose such Confidential Information to any person or use any such Confidential Information, except:

(a) as required in the course of performing such services and then only to staff of Peloton on a need-to-know basis; or

(b) with the prior written consent of the Merchant;

and all Confidential Information which Peloton shall prepare or use or come in contact with shall be and remain the Merchant’s sole property and shall not be removed from the Merchant’s premises without its prior written consent, except as required in the normal course of performing the services under this Agreement


11. WAIVER

Any waiver by Peloton of any of the provisions of this Agreement shall not constitute a waiver of any other provision (whether similar or not), nor shall such waiver constitute a continuing waiver of that particular provision unless otherwise expressly provided by Peloton in writing.

12. BINDING AGREEMENT

This Agreement shall be binding upon the parties, their heirs, successors and assigns, provided however that this Agreement shall not be assigned by any party without the consent of the other party.

13. INDEMNIFICATION AND RELATIONSHIP

13.1 The Merchant will indemnify, defend and save harmless, Peloton and its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) from all claims arising from:

(a) the failure of the Electronic Commerce Facilities to operate properly;

(b) the unauthorized disclosure by the Merchant or their personnel of information with respect to Charge

Cards;

(c) the failure of the Merchant or their personnel to use the Electronic Commerce Facilities in accordance with the terms of this Agreement, Peloton’s rules, instructions and procedures in effect from time to time;

(d) a Merchant's clients or members:

(i) use of, or inability to use the application, website or services;

(ii) user postings;

(iii) violation of any terms of the Merchants Terms and Conditions Agreement or any violation of any rights of a third party, or

(iv) violation of any applicable laws, rules or regulations.

13.2 Peloton shall not be responsible for any delay in performance when and to the extent that such is caused in whole or in part, but without limitation, by any one or more of the following: Internet service stoppages, interruptions and inconsistencies, computer, utility or communication breakdown, fire, flood, earthquake, strike, material shortage, lockout, war, revolution, riot, insurrection, or act of God. Peloton shall not be liable for damages, loss of data, delays, errors or failure of performance occurring directly or indirectly by reasons of the above or similar events or occurrences.

13.3 This Agreement and the relationship between Peloton and the Merchant is not intended to be and shall not be construed as a general partnership, limited partnership, joint venture, corporation, company, joint stock company or agency relationship.

14. PROCEDURES

Peloton may, from time to time, issue directions in writing regarding the procedure to be followed in carrying out this Agreement or require amendments to this Agreement as required by Charge Card regulations, legislation, including without limitation, applicable privacy legislation, and security requirements of Peloton, and such directions and amendments shall be binding upon the Merchant upon receipt thereof unless the Merchant elects to give immediate Notice of cancellation of this Agreement.


15. NOTICES

15.1 Any Notice to be given hereunder shall be in writing and be delivered personally or sent by registered mail, courier or facsimile to a party.

15.2 The addresses for Notices to the parties are as follows:

To the Merchant: At the business address specified within the Peloton System

To Peloton: Peloton Technologies, Inc.

Attention: Legal Department

Suite 8424, 709 Yates St

Victoria, BC V8W 3S1

Phone: 1800 723 8108

15.3 Notices sent by regular mail shall be deemed to have been received within five (5) Business Days after mailing, except in the event of postal service interruption, in which case such Notices shall be delivered personally, courier or facsimile.

15.4 Notices delivered personally, or sent by registered mail, courier or facsimile shall be deemed to have been received the next Business Day after being sent.

16. TERMINATION AND AMENDMENT

16.1 This Agreement shall remain continuously in full force and effect unless terminated

(a) by any party at any time upon thirty (30) days Notice to the other party;

(b) by Peloton in the event of any failure by the Merchant to comply with this Agreement upon three (3) Business Days Notice to the Merchant;

(c) by the Merchant in the event of any failure by Peloton to comply with this Agreement upon ten (10) Business Days Notice to Peloton;

(d) by Peloton with Notice being sent to the Merchant, if the Merchant fails to maintain the minimum credit standard established by for the Merchant’s Account from time to time or due to fraud, alleged fraud, bankruptcy or insolvency of the Merchant.

(e) by Peloton if the Merchant Account is in overdraft for 2 or more consecutive months.

16.2 Upon termination of this contract, the Merchant shall pay to Peloton as follows:

(a) any negative balance; and

(b) any outstanding fees.

16.3 This Agreement may not be amended except by written agreement between Peloton and the Merchant.

16.4 All obligations of the parties in respect of any event which occurred prior to the date of termination of this Agreement shall survive such termination. Upon such termination, all forms, equipment and material including the Merchant’s website bearing or depicting the name or trade mark of Peloton shall be returned to Peloton and Charge Card designs or any representations of any of them shall be removed from the Merchant’s website and all websites of the Merchant forthwith thereafter shall not represent that Charge Cards will be honoured.

17. INVALIDITY

The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.

18. GOVERNING LAW

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and the laws of Canada applicable hereto.

19. COUNTERPARTS

This Agreement may be executed in several counterparts, including by facsimile, online acknowledgement, continued use of the system, each of which when executed shall be deemed to be an original and such counterparts together shall be but one and the same instrument.



EFT / ACH Agreement

THIS DOCUMENT DESCRIBES THE AGREEMENT

BETWEEN:

Our Clients

(“Merchants”)

AND

Peloton Technologies, Inc.

980 Ferncliffe Place

Victoria, BC V9C 3X9

(“Peloton”)

WHEREAS:

A. Peloton carries on the business of providing resources and services for electronic payment processing; and

B. The Merchant wishes to retain Peloton for its services for;

Direct Debit / Direct Payments (DD-DP) and Automated Clearing House (ACH) Services Agreement

NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the premises and the covenants, agreements, representations, warranties and payments hereinafter contained, and provided for, the parties hereto covenant and agree as follows:


1. Service Description

Peloton's DD-DP / ACH Debit Service is an electronic collection system that we provide to you subject to the Service Terms. Pre-authorized debits in Canadian Dollars or US Dollars may be charged against any individual or company account (the “Charged Account”) at its financial institution in Canada or the United States. You provide us with your instructions as to the debit to be charged in the agreed upon format and as set out in the Service Terms (the “Debit Instructions”). The Debit Instructions must be received by 10:00 A.M. PST one business day before the payment is due (the “Cut Off Time”). We forward all debit instructions received by us before the Cut Off Time and not rejected for any reason (the “Valid Debit Instructions”) to the Charged Account's financial institution or its clearing agent (the “Charged Institution”).

2. Availability of Funds

Three (3) business days after the Debit Instructions are processed; Peloton will make available the funds in your account with the amounts from all honored transactions. This period allows sufficient time for returned items to clear the payment systems. Any debits dishonored in connection with the Service will be deducted from the total amount processed and the net amount will be credited to the designated beneficiary account. If an item is returned after this period, you will be notified and an adjustment will be made to your account.

3. Payment Association Rules

You agree to abide by all Payments Associations' rules pertaining to preauthorized debits. You warrant that you will obtain the necessary written authority (the “Authorization”) from any third party whose account is to be debited in conjunction with the Service, and provide the necessary notice requirements to these third parties before providing us with Debit Instructions for any account and make them available for our inspection at our request.

4. Definitions

(a) “Business Day” means any day other than a Statutory Holiday, Saturday or a Sunday on which we, and any third party that we use, and the Charged Institution are open for business.

(b) “Cut Off Time” means the recommended latest time on a Business Day, as advised to you from time to time, by which we must receive your Debit Instructions in order for us to edit them on the same day.

(c) “Due Date” means the date you request that a debit be charged against the Charged Account provided that if the Due Date for any Valid Debit Instruction is not a Business Day at the Charged Institution, the debit may not be charged against the Charged Account until the next Business Day.

(d) “File Date” means the date we receive the debit file.

(e) “Future Debit” means a Valid Debit Instruction with a Due Date on or after the date (and after the Cut Off Time if same Date) we receive the Debit Instructions.

(f) “Past Debit” means a Valid Debit Instruction with a Due Date before the date we receive the Debit Instructions.


5. Processing of Debit Instructions

We will edit Debit Instructions on the same Business Day as we receive them if we receive them before the Cut Off Time. It is your responsibility to deliver the Debit Instructions to us before the Cut Off Time.

6. Due Date Checking

We will set Due Dates of all Debit Instructions at the time of our initial editing to the next Business Day. Future Debit Instructions can be scheduled to occur within the Peloton System, and will be processed on the Business Day prior to the Due Date. It is your responsibility to deliver the Future Debit Instructions to us prior to the Due Date.

7. Completion of Debit Instructions

If you have provided Valid Debit Instructions, we will forward Future Debits to the Charged Institution(s) in sufficient time for your Due Dates. We will credit your account(s) on the date we forward the Debit Instructions to the Charged Institution.

8. Returned or Contested Items

You agree to pay for any dishonored, unauthorized, forged, materially altered, returned or contested items. We will provide you notification of these items and adjust the credit to your account for the corresponding amounts less plus any fees for returned items.

9. Charges

You agree to pay to us on demand the following:

(a) Our fees in effect from time to time for the Services, including fees for additional services outside the standard Services outlined in Schedule A, provided to you as a result of your request, error or omission;

(b) Any applicable taxes which are your responsibility, unless you provide us with a tax exemption certificate;

(c) Any other amounts that you owe us resulting from your use of the Services and any amounts incurred by us to recover any monies that you owe us. These will include legal fees on a solicitor and their own client basis as well as those reasonable legal fees charged by our legal department.

10. Access and Security

You acknowledge that access to the Services may be provided by way of passwords and logon ID's, authentication devices or codes (the “Access Devices”). You understand that possession or knowledge of an Access Device by any person may result in that person being able to access the Services. You authorize us to provide the Service to anyone using the appropriate Access Device(s) without further enquiry. You will be responsible for any use of the Service, whether authorized or unauthorized.

You agree that maintenance of the security of the Services (including the strict confidentiality of the Access Devices) is your responsibility. You will always have in place commercially reasonable procedures to prevent and detect losses caused by unauthorized access to, or unauthorized use of, the Software, Access Devices or the Service by your employees or third parties. You will not access or try to access restricted areas of our computer system or perform or try to perform functions that are not authorized under the Agreement. If we reasonably suspect that you are doing so or that you are using the Access Devices or Software in any inappropriate manner, we may, without notice, suspend your access to any of the Services to allow us to investigate.

11. Communications

The term “Communication” means any communication of instructions or information whether by telex, telephone, facsimile, wire tape, disk or other means of communication. You agree that any Communication received from you, or in your name, or from your premises or equipment, is authorized by you and binding on you. You authorize us to rely on and act on any such Communication. If the Communication is by fax, we may act upon any signature purporting to be your signature or that of your authorized signing officer. If we try to verify the signature on a fax or the validity of any Communication (though we are not obligated to do so) and are unable to do so to our satisfaction, we may delay in acting or refuse to act on the communication. You agree that our records of any Communication will be admissible in any legal, administrative or other proceedings as if such records were original written business records. Our records will be conclusive proof of the existence, content and accuracy of the Communications.

12. Your Liability

You will be liable to us for all indebtedness and other liabilities, both direct and indirect, which are created or increased resulting from the use or misuse of the Services whether authorized or unauthorized, including through transactions affecting any of your accounts or the accounts of other customers that are debited through use of a Service. You will reimburse us for, and indemnify us against, all claims and demands that may be paid by us or made against us in respect of providing or not providing the Services to you and from all losses, costs, charges and expenses, including legal fees, that we may incur as a result of any such claims and demands.

13. Limitation on our Liability

We are responsible for losses and damages due to the willful misconduct or gross negligence of our employees in providing the Services, except that we are not liable in any circumstances for the following losses or damages:

(a) Due to any cause beyond our reasonable control;

(b) Due to your acts or omissions or those of third parties, and no third party will be considered to be our agent; or

(c) Indirect or consequential losses or damages (including penalties or loss of profits), even if we were informed of the possibility of such losses or damages.

We are not liable for any losses or damages caused by systems or communications failure, malfunction, delay or error (unless caused by the willful misconduct or gross negligence of our employees).

14. Changes

The provisions of the Agreement or any Services or charges for use of the Services can be changed upon written agreement of both parties.

15. Cancellation

Either of us may cancel this Master, any Service or the license to use the Service materials by giving the other party 30 days written notice, unless specified otherwise and agreed to by both parties.

We may cancel this Service without notice if:

(a) You default on any obligation under these terms and conditions;

(b) we are served with any demand, attachment, garnishment or other order that requires us to pay any funds that we would have otherwise paid or advanced to you or on your behalf, or a receiver or receiver manager is appointed for any of your property, or you are bankrupt or insolvent, or any proceeding is commenced by or against you under any bankruptcy, insolvency or winding up statute; or

(c) We reasonably believe that there has been or may be improper, unauthorized or unlawful use of the Service. Upon cancellation, you will cease to use the Service and we will cease to perform any Service transactions and we may recall any instructions given to third parties. Any cancellation of this Service will not affect any obligations outstanding under the Agreement at the time of cancellation and all indemnities shall survive cancellation.

16. General

(a) Confidentiality - You agree to keep confidential all information concerning us which may be made known to you solely as a result of using any Service and which is not generally available to the public. You shall not release any such confidential information without our prior written consent.

(b) Waiver - No waiver of any breach of any term of the agreement will be considered to be a waiver of any other breach of such term or any other term of the agreement and no waiver shall be effective unless in writing.

(c) Severability - If any provision of the Agreement is declared invalid or unenforceable, the remaining provision shall remain in full force and effect.

(d) Representations or Warranties - There are no representations or warranties of any kind by us except as provided in the Agreement.

(e) Successors and Assigns - The Agreement is binding on us, our successors and assigns. It is also binding on you, your heirs, executors and administrators and other legal representatives, successors and assigns. You must obtain our prior written consent to assign the Agreement to another party.