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MyOrchard Point of Sale Equipment Agreement

  • Updated

MyOrchard Point-of-Sale Equipment Agreement

If you elect to execute this Agreement by electronic means, you acknowledge that this Agreement is legally binding in the same manner as are hard copy documents executed by hand signature. You agree (i) that the Agreement shall be effective by electronic means, (ii) to be bound by the terms of such document, and (iii) that you have the ability to print or otherwise store such document.

This Point-of-Sale Equipment Agreement (hereafter called “Agreement”) is between you (the “Merchant” or “you” or “your”) and Orchard Technology, Inc. (“MyOrchard”). Pursuant to a separate written agreement, the individual authorized to open or use the MyOrchard Platform may rent or purchase equipment from MyOrchard or an approved and authorized MyOrchard provider, for all credit card authorization, draft deposit, and debit card transactions (hereinafter “Equipment, Services and Supplies” or “Equipment”). Please review these terms and conditions carefully.

 

PLEASE READ SECTION 21 (“DISPUTE RESOLUTION”) CAREFULLY AS IT RELATES TO ARBITRATION AND CLASS ACTIONS

  1. Fees and The Equipment, Services and Supplies selected by you, and their respective charges, are set forth in the Schedule A Fee Disclosure. MyOrchard may increase such charges at any time upon ninety (90) day notice. Notwithstanding the foregoing, but without limiting your right to terminate for a price increase as described in the section of this Agreement entitled “Term and Termination,” MyOrchard may increase any fees upon shorter notice in the event of any increase in rates charged by MyOrchard’s third party suppliers of Equipment, Services or Supplies, or if the cost of providing the Equipment, Services and/or Supplies hereunder increases as the result of any change in the rules, regulations or operating procedures of any applicable entity responsible for setting rules or standards or any governmental agency or regulatory authority, and MyOrchard did not receive sufficient prior notice of such increase to reasonably permit MyOrchard to comply with the foregoing time frame; in such event, the amount of prior notice to you shall be reasonable under the circumstances, and the increase shall become effective as to you no later than such increase becomes effective as to MyOrchard. You authorize MyOrchard to debit your bank account, identified through your onboarding process with MyOrchard for all charges incurred by you under this Agreement, including any charges incurred by MyOrchard on your behalf, for the Equipment, Services and/or Supplies as provided for in this Agreement. If your account contains insufficient funds to accommodate such debit, you authorize MyOrchard to charge your account a one and one-half percent (1½%) per month service charge on all amounts that are not paid on the due date. You will be sent a statement detailing the amount debited to your account. You agree that any withdrawals by MyOrchard under this Agreement are pre-authorized debits (“PADs”) that have been authorized under your Merchant Acceptance Agreement with MyOrchard (and incorporated in its entirety herein). In the event that any amount due hereunder is not timely paid as provided herein, MyOrchard may, in addition to any other right or remedy which it may have under this Agreement or at law, terminate this Agreement if you do not affect payment in full within ten (10) days of MyOrchard’s notification demand therefor. You agree to reimburse MyOrchard for all costs and expenses, including reasonable attorneys’ fees, incurred by MyOrchard in enforcing collection of any monies due it under this Agreement.

  2. You shall be liable to MyOrchard for (or pay directly if instructed by MyOrchard) all charges and taxes (local, provincial and federal) that may now or hereafter be imposed or levied upon the sale, purchase, ownership, rental, possession or use of the Equipment, Services or Supplies.

  3. Any rented Equipment is MyOrchard’s property and will not become your property. Notwithstanding any attachment, such Equipment will remain personal property and not become a fixture. You will protect such Equipment from loss, theft, damage or any legal encumbrance. Title to rented Equipment, purchased Equipment for which MyOrchard has not received full payment, as well as all alterations or repairs made or parts added to such Equipment, shall remain in MyOrchard’s equipment. You agree to give MyOrchard a security interest in (and, in Quebec, a hypothecation on) all such Equipment, as applicable. It is understood and agreed that the rights of MyOrchard under such security interest or hypothecation shall be in addition to the rights and/or remedies otherwise available to MyOrchard under the terms of this Agreement, and not in limitation thereof. Upon delivery of Equipment, you shall bear the entire risk of loss, theft, destruction of or damage to the Equipment or any portion thereof from any cause whatsoever (“Loss or Damage”), whether or not covered by insurance. No Loss or Damage shall relieve you from your obligations hereunder.

  4. Equipment MyOrchard shall provide you with operating instructions (Quick Reference Guide) that will instruct you in the proper use of the Equipment, and you shall install, use and operate the Equipment only in such manner. You are responsible for providing all necessary connections and other facilities and for paying all expenses of installing and operating the Equipment. You shall provide the Equipment with a suitable secure space and power for its proper operation. You shall provide all necessary infrastructure, including without limitation, power outlets, grounding and anti-static environments required for the safe and efficient operation of the Equipment in accordance with the specifications of MyOrchard, the Canadian Standards Association (https://www.csagroup.org/standards/areas-of-focus/electrical/) and any other applicable specifications or regulations. You shall not move the Equipment, attach any devices, change your method of telecommunication (including but not limited to using Voice over IP (VoIP) technology) or install any software without MyOrchard’s prior written consent. With respect to any item of Equipment rented to you by MyOrchard, you will not be liable for normal wear and tear, provided, however, that you will be liable to MyOrchard in the event that any rented item of Equipment is lost, destroyed, stolen or rendered inoperative. You will indemnify MyOrchard against any loss arising out of damage to or destruction of any item of Equipment for any cause whatsoever and for any costs, expenses, and judgements MyOrchard may suffer, including reasonable attorneys’ fees, arising from the use of the Equipment.

  5. Equipment Return. Any unused item of Equipment or Supplies purchased from MyOrchard under this Agreement that is in its original packaging may be returned at your expense within thirty (30) days of receipt. You must retain proof of return such as the courier tracking record. You shall receive a refund of any money paid in connection with such Equipment, subject to a restocking fee equal to 20% of the purchase price of such returned Equipment. No refunds shall be issued for any such Equipment returned after thirty (30) days.

  6. Integrated PIN Pad Solutions and Non-MyOrchard If you rent or purchase a MyOrchard PIN Pad for the purposes of integration into a non-MyOrchard integrated processing solution, you agree to ensure that the PIN Pad is installed in accordance with MyOrchard’s standards. If you use a PIN Pad or Point of Sale device that is not supplied by MyOrchard, and that uses cryptographic keys provided by MyOrchard, you agree to ensure that such equipment conforms to, and is installed with, MyOrchard standards. The cryptographic keys loaded into the PIN Pad(s) by MyOrchard are used to secure, encode and authenticate information. They are provided by MyOrchard in connection with meeting operating regulations and rules of Visa, Mastercard, American Express, Discover, Interac, UnionPay (hereinafter collectively “Payment Network(s)”) obligations and are the property of an authorized Payment Network member. You agree that any alterations made will be approved by MyOrchard before being undertaken and will continue to conform to MyOrchard’s standards. You shall permit MyOrchard access to your premises where a PIN Pad is located to examine, replace, load, reload, or otherwise maintain the cryptographic keys. If MyOrchard requires access outside normal business hours, you shall not unreasonably withhold consent.

You agree that MyOrchard may make changes and enhancements to its services, including revising specifications. You agree to pay MyOrchard an encryption fee, as set by MyOrchard from time to time, for the examination, replacement, loading, reloading and maintenance of the cryptographic keys. If you need to modify or replace your equipment to conform to the revised specifications and plan to do so, you agree to give 30 days’ written notice of your plans before the date the scheduled changes are to take place. If you do not notify MyOrchard, this Agreement is automatically terminated on the date that the changes take place. In the event that you make any modifications or changes to your equipment that have not been approved by MyOrchard and that require MyOrchard to re-certify or replace such equipment, you agree to pay any re-certification or replacement fees that are set by MyOrchard from time to time. You are responsible for maintaining your equipment in accordance with Payment Networks requirements and MyOrchard’s standards; you are responsible for any costs of connecting and maintaining the link in accordance with MyOrchard’s standards. You agree to provide MyOrchard with thirty (30) days’ written notice of your intention to (a) decommission any PIN Pad or (b) sell, transfer or otherwise convey any purchased PIN Pad to a third party. In the event of (b), no sale, transfer or conveyance of any purchased PIN Pad to a third party is permitted without MyOrchard’s prior written consent, and your written notice to MyOrchard shall include information adequately identifying such third party to permit MyOrchard to remove cryptographic keys from such Equipment. You agree to act in accordance with MyOrchard’s instructions regarding the return or proper destruction of any decommissioned PIN Pads.

 

  1. You acknowledge that the Equipment provided hereunder is embedded with proprietary technology (“Software”). At all times, MyOrchard or its suppliers retain all rights to such Software, including, but not limited to updates, enhancements and additions. All material and information made available by MyOrchard, including but not limited to the Equipment and Software, shall be protected by you as confidential and proprietary information of MyOrchard and/or its suppliers, and your use thereof shall be limited to that expressly authorized by MyOrchard. You shall not disclose MyOrchard’s confidential or proprietary information to any third party unless such disclosure is authorized in advance in writing by MyOrchard. Nothing in this Agreement contemplates, constitutes or creates a transfer or license of any intellectual property to you. You shall not obtain title, copyrights, or any other proprietary right to any Software, regardless of whether you rent or purchase the Equipment. You shall not commit any act or assist anyone else to commit any act to copy, modify, alter, translate, attempt to change, reprogram, decompile, emulate, reverse engineer or tamper with the Software in any way, or commit any act or assist anyone else to commit any act that otherwise rearranges the Equipment or the Software. You shall not create or attempt to create any derivative work based on the Software or assist anyone else in doing so. You shall not sell, license, sublicense, or convey any rented Equipment to a third party without the prior written consent of MyOrchard. If you have purchased the Equipment, you shall not sell, license, sublicense, or convey such Equipment to a third party without the prior written consent of MyOrchard, which may be withheld, in MyOrchard’s sole discretion, unless the Software is removed prior to such transfer. MyOrchard’s suppliers of Equipment and/or Software are third-party beneficiaries of this Agreement with the right to rely on and directly enforce the terms of this Agreement against you to protect their ownership rights. You are liable to MyOrchard and/or to such third-party beneficiaries for any transferee’s conduct with regard to the Software. You shall be required to timely accept any updates, bug fixes, enhancements, new version releases, or other improvements to rented or purchased Equipment, or to replace rented or purchased Equipment, to the extent that such actions are required in order to (i) address a vulnerability identified by MyOrchard or (ii) remain compliant with applicable law, rule, or regulation. You will indemnify MyOrchard for any costs, expenses and judgements MyOrchard may suffer, including reasonable attorneys’ fees, arising from your breach of this Section 7 or otherwise arising out of use of the Software.

  2. You will promptly notify MyOrchard of any Equipment malfunction, failure or other incident resulting in the loss of use of the Equipment or need for repair or maintenance, whereupon MyOrchard will make the necessary arrangements to obtain required maintenance. You may be responsible for shipping cost. You shall cooperate with MyOrchard in its attempt to diagnose any problem with the terminal. In the event your terminal requires additional software, you are obligated to cooperate and participate in a down line load procedure. Maintenance service provided under this Agreement may include replacing an item of Equipment or a component thereof, depending upon the maintenance option you have selected under this Agreement and MyOrchard’s policies and procedures regarding maintenance, if MyOrchard determines in its sole discretion that the need for replacement arose from ordinary wear and tear, and that such replacement is necessary for the Equipment to function in accordance with its written specifications. Replaced items of Equipment and/or components thereof are MyOrchard’s property; you are required to ship them to MyOrchard within thirty (30) days of their replacement, and they will not be returned to you. Maintenance service provided under this Agreement is available only for Equipment that has been handled and operated appropriately, and does not include services arising out of the negligence or misconduct by you, your employees, agents, customers or contractors or your failure to comply with any and all instructions and specifications provided by MyOrchard or the manufacturer of the Equipment; if any such replaced Equipment is determined by MyOrchard to be unrepairable, or if you have failed to ship any replaced Equipment to MyOrchard within thirty (30) days of its replacement, MyOrchard shall have the right to debit your account for the then-current replacement cost of such Equipment. Late return fees will be imposed for any item of Equipment that you fail to return to MyOrchard within thirty (30) days after its replacement. In addition, you will be charged a retrieval fee if MyOrchard takes action to recover Equipment that you fail to return in accordance with this Agreement. In the event that modifications or changes have been made to the Equipment that were not approved in advance in writing by MyOrchard, and that require MyOrchard to re-certify or replace such Equipment, you shall be responsible for the payment of any re-certification or replacement fees. If you purchase Equipment from MyOrchard pursuant to this Agreement, MyOrchard shall provide maintenance services at no additional cost for thirteen (13) months following the order date, subject to your obligations of proper use as described in this Section 8; after the expiration of such thirteen (13) month period, repair or maintenance fees shall apply.

  3. Access to Premises. You will allow MyOrchard and its designated representatives physical and electronic access to the Equipment upon request, including permitting prompt and safe access to your premises when required for the purpose of performing MyOrchard’s obligations and/or for the inspection, repair, removal, modification, installation, replacement, disconnection and/or relocation of the Equipment. If MyOrchard requires access outside normal business hours, you shall not unreasonably withhold consent.

  4. Oil and Gas Merchants. In the event that you are an oil and gas merchant using point- of-sale payment processing equipment identified as automated fuel dispenser devices (“AFDs”), you acknowledge that Interac has established a certification program for AFDs requiring that only chip-enabled certified AFDs complying with Interac’s technical specifications and testing requirements (“TSTR standards”) be deployed. No AFDs that do not meet the security standards required for certification under Interac’s program may be Non-compliance with the foregoing is subject to sanctions. Accordingly, your decision to deploy and/or use one or more non-certified AFDs indicates that you acknowledge the risk of loss associated with such AFDs, you assume all such risk of loss, and you acknowledge MyOrchard’s right to recover from you all such losses arising from the deployment and use of any non-certified AFD device(s) deployed by you. The foregoing remedies are in addition to any and all other rights and remedies available to MyOrchard under this Agreement.

  5. Additional Interac, VISA and MasterCard Mandates. Interac, VISA and MasterCard have mandated that all POS PIN Pad devices which would be utilized under this agreement must be PCI-compliant and, in the case of Interac, such equipment must also be certified in accordance with Interac-specific technical specifications and testing You agree to comply with the foregoing mandate. Furthermore, you acknowledge that the liability for fraudulent transaction chargebacks originating from non-chip equipment will be borne by you.

  6. Wireless Services. In the event that you wish to receive wireless data services through MyOrchard Service (“Wireless Services”), you acknowledge and agree that Wireless Services are provided solely for use in connection with a wireless data device that has been authorized in advance by MyOrchard. The Wireless Services are subject to the terms and conditions of MyOrchard’s and/or the approved Wireless Services provider the Wireless Data Services Amendment to Point of Sale Equipment Agreement, incorporated herein by this reference.

  7. Multi-Merchant The term “Multi-Merchant Solution” refers to MyOrchard’s provision of Equipment, Services and Supplies to a group of two or more merchants in one location, where each such merchant has its own individual payment transaction processing agreement with MyOrchard. but each such merchant wishes to share the same point of sale terminal to process such payment transactions. In the event that you are such a merchant, you acknowledge and agree that you are jointly and severally (or, for purposes of the Province of Québec, solidarily) liable with any and all other merchants participating in the Multi-Merchant Solution for the Equipment, Services and/or Supplies received under this Agreement. No agreement or compromise reached between or among you and such other merchant(s) shall relieve you from your responsibility under this Agreement without MyOrchard’s prior written consent thereto.

  8. Warranties and Representations. Neither MyOrchard nor its suppliers make any representations or warranties, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose with respect to any terminal, any equipment, the software residing therein or any of the services furnished hereunder. If there are problems with the Equipment, MyOrchard may give notice to you to immediately cease using the Equipment; your failure to comply with any such instructions from MyOrchard could result in your incurring losses, for which MyOrchard shall have no liability to you whatsoever.

  9. Limitation of Liability. MyOrchard shall not be liable for failure to provide the Equipment, Services or Supplies if such failure is due to any cause or condition beyond MyOrchard’s reasonable control. Such causes or conditions shall include, but shall not be limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labour or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, shipping or logistics delays, communication failures, unavoidable delays, or other similar causes beyond MyOrchard’s control. MyOrchard’s suppliers disclaim all liabilities under this Agreement. The liability of MyOrchard, if any, for any loss hereunder, including but not limited to damages arising out of any malfunction of the Equipment or the failure of the Equipment to operate, the unavailability or delay of the Services or Supplies, personal injury, property damage, or cause of action under contract, negligence, tort, statute, warranty, or infringement shall, in the aggregate, be limited to actual, direct, and general money damages in an amount not to exceed (a) one (1) month’s average charge paid hereunder by you for the applicable Services and/or rented Equipment during the previous twelve (12) months or such lesser number of months as shall have elapsed subsequent to the effective date of this Agreement, (b) with regard to Equipment purchased hereunder, the lesser of the purchase price paid for the item of Equipment causing such loss or its fair market value or (c) with regard to Supplies purchased hereunder, the purchase price paid for the Supplies causing such loss. The foregoing represents the sole extent of MyOrchard’s liability in the event of any alleged default by MyOrchard under this Agreement, including alleged acts of negligence, breach of contract, or otherwise, and regardless of the form in which any legal or equitable action may be brought against MyOrchard, and the foregoing shall constitute your exclusive remedy. MyOrchard shall have no liability whatsoever arising from use of the Equipment in connection with software or services not authorized by MyOrchard. Under no circumstances shall MyOrchard be liable for any loss of anticipated profits, lost interest, or for special, consequential, punitive or exemplary damages, even if MyOrchard has been advised of the possibility of such damages. In no event shall MyOrchard be liable for any claim, loss, billing error, damage, or expense caused by MyOrchard’s performance or failure to perform hereunder which is not reported in writing to MyOrchard by you within thirty (30) days of such failure to perform, or in the event of a billing error, within sixty (60) days of the invoice or applicable statement. Neither party may institute any action in any form arising out of or in connection with this Agreement more than one (1) year after the cause of action has arisen, or in the case of non-payment, more than one (1) year from the date of last payment or promise to pay, except that this limitation shall not apply to an action for non-payment of taxes.

  10. Term and Termination. This Agreement shall become effective when electronically received and accepted by MyOrchard, and shall remain in full force and effect for an initial term of sixty (60) days. Furthermore, this Agreement shall be automatically extended for successive one (1) month periods on the same terms and conditions expressed herein, or as may be This Agreement may be terminated by Merchant upon returning all Equipment to MyOrchard at the mutually agreed upon address. Merchant shall verify with MyOrchard prior to sending Equipment, with verified tracking information. Upon receipt of Equipment and verification that Equipment is still in the original working condition, MyOrchard will cease billing immediately.

    In the event that you terminate this Agreement in breach of this Section 16, all monthly fees assessed to you and payable to MyOrchard under this Agreement for the remainder of the then-current term shall be immediately due and payable to MyOrchard, and you hereby authorize MyOrchard to accelerate the payment of all such monthly fees and to deduct the total amount from your merchant bank account identified above. If such account does not contain sufficient funds for the debit, you shall pay MyOrchard the amount due within ten (10) days of the date of MyOrchard’s invoice for same. The payment of accelerated monthly fees as described herein is not a penalty, but rather is hereby agreed by the parties to be a reasonable amount of liquidated damages to compensate MyOrchard for its termination expenses and all other damages under the circumstances in which such amounts would be payable. Such amounts shall not be in lieu of but in addition to any payment obligations otherwise incurred by you under this Agreement, which shall be an additional cost, and any and all other damages to which MyOrchard may be entitled hereunder. If you default under this Agreement, or any other agreement between you and an affiliate of MyOrchard, and such default continues for ten (10) days after MyOrchard’s written notice, MyOrchard may terminate this Agreement, declare the entire amount of the unpaid balance and any other charges to be immediately due and payable and exercise any other remedy existing at law or in equity, including the right to enter upon your premises without notice and repossess any Equipment not owned by you. If you default, MyOrchard may require you, at your expense, to return such Equipment to MyOrchard in the same condition as when delivered to you hereunder, ordinary wear and tear resulting from proper use alone excepted, free and clear of all liens, encumbrances or rights of others whatsoever.

    You will be liable for late return fees for any rented Equipment (or purchased Equipment if MyOrchard has not received full payment) that is not returned to MyOrchard within thirty (30) days after the termination of this Agreement. In addition, you will be charged a retrieval fee if MyOrchard takes action to recover Equipment that you fail to return in accordance with this Agreement. In the event that MyOrchard breaches the terms and conditions hereof, you may, at your option, give written notice of your intention to terminate this Agreement unless such breach is remedied within thirty (30) days of such notice. Failure to remedy such a breach shall make this Agreement terminable, at your option, at the end of such thirty (30) day period unless notification is withdrawn. Maintenance services provided under this Agreement may be terminated by MyOrchard at any time on thirty (30) days prior written notice to you. Software or Services provided under this Agreement through a third party may be suspended, modified or terminated in whole or in part at any time without liability to you.

  11. All notices and other communications required or permitted to be sent to Merchant under this Agreement may be made by: (1) written communication sent to the Merchant at the address stated in this Agreement or as updated by the Merchant thereafter; (2) electronic communication sent to the Merchant at the electronic mail address stated in this Agreement or as updated by the Merchant thereafter; (3) an electronic posting or notification on MyOrchard’s website; or (4) an electronic posting or notification accessible to the Merchant on its MyOrchard Portal. All notices and other communications required or permitted to be sent to MyOrchard under this Agreement shall be in writing, shall be sent by (1) an electronic posting email to support@myorchard.com (2) a posting to support within the MyOrchard Portal (3) in writing via registered mail sent to: 1055 W. Hastings Street, Suite 2103, Vancouver, BC V6E2E9.  Any notices sent to you shall be effective upon the earlier of (1) actual receipt, (2) upon the sending of such notice to the email or physical address provided by you in this Agreement or to any other e-mail or physical address to which notices, statements and/or other communications are sent to you hereunder, or (3) upon the actual posting thereof on MyOrchard’s website identified above and/or your MyOrchard Portal. The parties hereto may change the name and address of the person to whom all notices or other documents required under this Agreement must be sent at any time by giving written notice to the other party.

 

  1. Credit and Financial Information. MyOrchard may obtain from any source whatever commercial and credit information about you and your owners, officers, partners, shareholders, proprietors and managing agents that MyOrchard deems appropriate. You authorize any depository institution to release to MyOrchard any financial information concerning you or your You agree that subsequent commercial and credit information may be ordered in connection with updating, reviewing or continuing this Agreement. If this Agreement is terminated by reason of any breach of its terms by you, MyOrchard, without any liability whatsoever to you, may disclose such termination and the reason for it to the consolidated information reference file available to other financial institutions. Upon the written request of any individual who is the subject of a consumer credit report in connection with this Agreement, MyOrchard will provide the name and address of the consumer credit reporting agency furnishing the report, if any.

  2. Third Party Software and You acknowledge that some of the software and/or services to be provided by MyOrchard hereunder may be provided by third parties. You agree that, except for your right to use such software and/or services in connection with this Agreement, you acquire no right, title or interest in any such software and/or services. You further agree that you have no contractual relationship with any third-party providing software and/or services under this Agreement and that you are not a third-party beneficiary of any agreement between such third party and MyOrchard. You may not resell to any other entity the software and/or services of any third party provided under this Agreement.

  3. You are hereby granted a limited non-exclusive, non-transferable license to use MyOrchard brands, emblems, trademarks, and/or logos (“MyOrchard Marks”) on terminals, equipment, or other materials provided to you by MyOrchard. You are prohibited from using the MyOrchard Marks other than as expressly authorized in writing by MyOrchard. You shall not use the MyOrchard Marks other than on terminals, equipment, or other materials depicting the MyOrchard Marks that are provided to Merchant by MyOrchard pursuant to this Agreement or otherwise approved in advance in writing by MyOrchard. You shall not use the MyOrchard Marks in such a way that customers could believe that the products or services offered by you are sponsored or guaranteed by the owners of the MyOrchard Marks. You recognize that you have no ownership rights in the MyOrchard Marks and shall not assign to any third party any of the rights to use the MyOrchard Marks.

  4. Dispute Resolution - Arbitration and Class Action Waiver.

NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF DISPUTES

MANDATORY ARBITRATION: ANY AND ALL DISPUTES BETWEEN YOU AND MYORCHARD ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR IN RESPECT OF ANY LEGAL RELATIONSHIP BETWEEN YOU AND MYORCHARD, ASSOCIATED WITH OR DERIVED FROM THIS AGREEMENT, SHALL BE FINALLY RESOLVED BY ARBITRATION UNDER THE ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. IN EFFECT AT THE TIME THE ARBITRATION IS COMMENCED (www.adric.ca).

A. Such arbitration will be administered by the ADR Institute of Canada, Inc. The seat of arbitration will be in Toronto, Ontario, Canada, unless the arbitrator determines that justice or fairness requires otherwise. The language of the arbitration will be English. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable If the amount of the claim is CA$10,000.00 or less, the arbitration shall be conducted under the simplified procedure rule of the ADR Institute of Canada, Inc. Arbitration Rules. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted that party’s individual claim and, as such, will not affect issues or claims involving any person or entity who is not a party to the arbitration. Any decision rendered in any arbitration proceeding shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction.

B. Class Action Waiver: MERCHANT ACKNOWLEDGES AND AGREES THAT ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER MERCHANT FURTHER AGREES TO WAIVE, AND HEREBY WAIVE, ANY RIGHT THEY MIGHT HAVE TO COMMENCE OR TO PARTICIPATE IN ANY CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS AGAINST MYORCHARD RELATED TO ANY CLAIM.


C. Choice of Law. This Agreement, as well as the Dispute Resolution provisions contained herein, will be governed by and interpreted solely in accordance with the laws of Ontario and the laws of Canada applicable therein, without regard to any conflicts of laws provisions.

D. Miscellaneous. A court, not the arbitrator, will decide any questions regarding the validity, scope and/or enforceability of this Section Any litigated action (as opposed to an arbitration) regarding, relating to or involving the validity, scope and/or enforceability of this Section 21, or otherwise, shall be brought in the courts of the city of Toronto, province of Ontario, and you expressly agree to the exclusive jurisdiction of such courts. You hereby agree and consent to the personal jurisdiction and venue of such courts, and expressly waive any objection that you might otherwise have to personal jurisdiction or venue in such courts.

 

  1. Miscellaneous. (a) In the event you issue a purchase order, memorandum or other instrument covering the Equipment, it is hereby specifically agreed and understood that such purchase order, memorandum or instrument is for your internal purposes only, and any and all terms and conditions contained therein, whether printed or written, shall be of no force or effect. (b) MyOrchard may assign this Agreement in whole or in part to a third party. You shall not assign this Agreement without MyOrchard’s prior written consent. (c) You acquire no proprietary, ownership or other rights in the name “MyOrchard Payments,” “MyOrchard Payments Canada” or any other trade name, trademark, service mark or copyrighted materials associated with the Equipment or with MyOrchard’s Canada’s business. (d) You acknowledge that the Software is subject to the export control laws of the United States and Canada, and you agree to comply with all applicable export laws and regulations. (e) Any provision of this Agreement that is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. (f) Any failure of MyOrchard to require strict performance by you or any waiver by MyOrchard of any provision herein shall not be construed as a consent or waiver of any other breach of the same or of any other provision. (g) Termination of this Agreement for any reason shall not terminate the rights and obligations of the parties arising from or in connection with events occurring prior to the termination date. Without limiting the foregoing, Sections 2, 3, 4, 5, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive expiration or termination of this Agreement to the extent necessary to fulfill the purposes of this Agreement. (h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall not be altered or amended except by a writing executed by both parties.

  2. Language. The parties hereby acknowledge that they have required this agreement and all related documents to be drawn up in the English language. Les parties reconnaissent avoir demandé que le présent contrat ainsi que les documents qui s’y rattachent soient rédigés en langue anglaise.

 

Orchard Technology, Inc.
Email: support@myorchard.com
Mail: MyOrchard Customer Service
Attention: Privacy Protection Officer
Address: 1055 West Hastings Street, Suite 2130
Vancouver BC, V6E2E9

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