TERMS OF SERVICE

Updated: September 18, 2023

IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).

This Agreement sets forth the terms and conditions that apply to your access and use of our websites (the “Website”), and the mobile software application offered by us (the “App”), each owned and operated by 2500193 ALBERTA INC. DBA “Verto” (“Company”, “we” or “us”) and the services available thereon, including without limitation the communication service that enables people and organizations to connect, communicate, organize, send and receive payments (together with the App and Website, the “Service”). This Agreement creates a binding legal agreement between you (“Customer”, “you” or “your”) and the Company, the Company’s Subsiduraries, the Company’s Affiliates.

BY ACCESSING OR USING THE SERVICE OR CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, YOU ARE INDICATING YOUR ACCEPTANCE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICE. YOU ALSO AGREE NOT TO ALLOW ANYONE TO USE THE SERVICE USING YOUR PASSWORD OR LOGIN INFORMATION.  IF YOU ARE DISSATISFIED WITH THIS AGREEMENT OR ANY RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THE SERVICE. 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

IN ORDER TO ENTER INTO THIS AGREEMENT, YOU MUST HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND BE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, AND TO ABIDE BY AND COMPLY WITH THIS AGREEMENT. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR ARE LEGALLY ELIGIBLE TO ENTER INTO THIS AGREEMENT UNDER ANY LAWS APPLICABLE TO YOU. IF YOU ACCEPT THIS AGREEMENT, YOU REPRESENT THAT YOU HAVE THE CAPACITY TO BE BOUND BY IT. 

By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as the Company’s Privacy Policy (the “Privacy Policy”), as it may be amended from time to time in the future.

The Comany may update this Agreement or the Privacy Policy any time, without notification to you, and you should review this Agreement and the Privacy Policy that apply to you from time to time by accessing the Service.  Your continued use of the Service will be deemed irrevocable acceptance of any such revisions.  Before you continue, you should print or save a local copy of this Agreement and the Privacy Policy that apply to you for your records.

The Service is currently not available in Quebec.

Definitions.  As used in this Agreement:

“Verto Account” is defined in Section 3.1.

“Verto Technology” is defined in Section 6.1.

“Customer” is defined in the preamble. 

“Customer Data” means any data, information, or information contained in any database, template or other similar document (a) submitted by Customer through the Service, (b) provided by Customer to Verto as part of the Service, or (c) supplied to Verto by or on behalf of Customer.

“Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms made available by Verto that describe the features, functionality or operation of the Service and the System.

“Force Majeure Event” is defined in Section 11.2.

“Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws. 

“Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial legislation.

“Security Procedures” is defined in Section 5.1.

“Subcontractors” is defined in Section 2.9.

“System” means the technology, including hardware, software and systems, used by the Company to deliver the Service to Customer in accordance with this Agreement.

“Term” is defined in Section 7.1.

“UserID” is defined in Section 3.1.

The Service. The Service is a communications platform for enabling connection, through the App, between persons seeking to make payments. To use the Service, you must become a registered User by creating an Account (as defined below).

By providing your phone number and using the Service, you are agreeing that we may, to the extent permitted by applicable law, use your phone number for calls and, if such phone number is a mobile number, for text (SMS) messages, in order to assist with facilitating the requested payment. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages we send you. You may opt-out of receiving text (SMS) messages from us by replying with the word “STOP” to a text message from us. Reply “HELP” or contact help@vertopay.com for help. Message frequency varies and message & data rates may apply. You acknowledge that opting out of text (SMS) messages may impact your ability to use the Service.  The Service is only available through the use of a  mobile phone number.  The use of any other phone number not registered and provided by a mobile carrier (VoIP, landline, etc.) is not supported and may cause Service account limitations, suspension or termination.

Subscription to the Service.  Conditional on Customer complying with the provisions of this Agreement and cooperating with the reasonable requests of Verto, Verto hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Service in accordance with this Agreement.

Support.  Subject to the terms of this Agreement, Verto will use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Verto will not have an obligation to provide a correction for all such nonconformities.

System Updates and Scheduled Downtime.  Verto may update any aspect of the Service or System at any time in its sole discretion.  Verto may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.

Privacy Policy.  To the extent any Customer Data contains Personal Information, it will be used, collected, stored and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Policy.

Internet Security Disclaimer.  Customer acknowledges and agrees that Verto  exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Verto’s control.  Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.

Limitation, Suspension or Termination of Access.  In addition to the other rights and remedies of Verto under this Agreement, Verto may suspend, terminate or limit, in Verto’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Verto from harm to its reputation or business. Verto will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable.  In the event of a limitation or suspension, Verto will restore Customer’s access to the Service when Verto determines the event has been resolved.  Nothing in this Agreement will limit Verto’s right to take any action or invoke remedies, or will act as a waiver of Verto’s rights in any way with respect to any of the foregoing activities. Verto will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.8.

Subcontractors.  Customer acknowledges and agrees that Verto may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Verto in providing, the Service.  Any Subcontractors used by Verto to provide the Service shall remain under the direction and control of Verto, and Verto shall be fully and personally liable for all acts or omissions of the Subcontractors.

Customer’s Use of the Service.

Access and Security Guidelines.  Customer may set up an account (a “Verto Account”) by supplying a unique user identification name and password (“UserID”) to Verto.  Customer must ensure its UserID is not shared and is kept confidential, and is responsible for any and all activity occurring under its UserID.  Customer will promptly notify Verto of any actual or suspected unauthorized use of the Service.  Verto may require that Customer’s UserID be replaced at any time.

Customer Responsibilities and Restrictions.  Customer will, at all times, comply with all applicable local, state, provincial, federal and foreign laws in using the Service.  Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, to:

use the Service other than as permitted by this Agreement;

use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;

sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;

copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;

use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or

interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.

Customer Data.  Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.  Verto may take remedial action if Customer Data violates this Section 3.3, however, Verto is under no obligation to review Customer Data for accuracy or potential liability.

PAYMENT PROCESSING

Payment Processor. You are required to provide your credit card or bank account details (as specified in any registration forms provided when registering for your Account) to us when [registering for an Account/making a payment]. By doing so, you authorize us to provide this information to a third party payment processor (the “Payment Processor“). You acknowledge and agree that the Payment Processor’s terms will govern your agreement and interactions with the Payment Processor and that our terms and policies do not govern and that we have no liability arising from your use of or access to the Payment Processor. You should review the applicable terms and policies of the Payment Processor, including its privacy and data gathering practices. We are not responsible for any errors by the Payment Processor.

Payment Obligations.  You will make all payments that you initiate using the Service and will not initiate any payments that exceed the amount of funds available for payment in the account used for the Service.  You are responsible for the payments you initiate using the Service and for any charges or other amounts owed arising from NSF, reversed or disputed payments, and chargebacks.  You hereby authorize Verto to deduct from your Service account amounts owed to Verto in connection with the Service. 

SECURITY

Verto Security.  The Comany will maintain reasonable administrative, physical and technical safeguards (collectively, “Security Procedures”) designed to protect the security, confidentiality and integrity of the Service and System, and the data within them.

Customer Security.  Customer will maintain reasonable Security Procedures designed to protect the security, confidentiality and integrity of Customer’s information technology systems connecting to the Service and System, and the data within them.

OWNERSHIP

System and Technology.  Customer acknowledges that Verto retains all right, title and interest in and to the Service, the System and all software, materials, formats, interfaces, information, data, content and Verto proprietary information and technology used by Verto or provided to Customer in connection with the Service (collectively, the “Verto Technology”), and that the Verto Technology is protected by intellectual property rights owned by or licensed to Verto.  Other than as expressly set forth in this Agreement, no license or other rights in the Verto Technology are granted to the Customer, and all such rights are hereby expressly reserved by Verto.  Verto will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service. 

Customer Data.  Customer retains all right, title and interest in and to the Customer Data.  Except as set out in Section 6.3, Verto will only use Customer Data to provide the Service under this Agreement.  Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service.  Customer grants to Verto all necessary licenses in and to such Customer Data solely as necessary for Verto to use the Customer Data as described in this Agreement.

Aggregated Data.  Customer grants to Verto a perpetual, worldwide, royalty-free, non-exclusive, irrevocable license to collect, use, reproduce, process, manipulate and display the Customer  Data in an aggregated and anonymized format for Verto’s business purposes, including without limitation to develop and improve the Service, the System and Verto’s’ other products and services. 

TERM AND TERMINATION

Term.  The term of this Agreement will commence on the Effective Date and continue until terminated as described in this Section 7 (the “Term”). 

Account Cancellation.  You may cancel your Verto Account at any time through the interface provided as part of the Service.  Cancellation must be issued via the interface or via Verto’s’ support addresses.  This is the only way to cancel your Verto Account.  Email requests or phone requests to cancel your Verto Account will not be accepted.

Termination by Verto.  Verto reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement.  Verto reserves the right to modify, suspend or discontinue the Service, or any portion thereof, at any time and for any reason, with or without notice.

Effect of Termination.  Upon the termination of this Agreement for any reason: (a) Customer’s access to and use of the Service will be immediately suspended; and (b) within 30 days following any termination of this Agreement, Verto will remove all Customer Data from the System.  The rights and duties of the parties under Sections 3.3, 6, 7.4 and 8 through 11 will survive the termination of this Agreement.

Disclaimers

UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY VERTO: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY VERTO TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) VERTO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; (C) VERTO DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, VERTO EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

VERTO IS NOT RESPONSIBLE OR LIABLE FOR, AND YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON, ANY INFORMATION OR DATA MADE AVAILABLE ON THE SERVICE THAT WAS PROVIDED BY ANY OTHER USER OF THE SERVICE (INCLUDING WITHOUT LIMITATION ANY PROFESSIONAL OR ORGANIZATION).  YOU ACKNOWLEDGE AND AGREE THAT VERTO SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DISPUTES OR DAMAGES ARISING FROM ANY CONTRACT YOU ENTER INTO WITH ANOTHER USER OF THE SERVICE (INCLUDING WITHOUT LIMITATION ANY OFFER LETTER, EMPLOYMENT AGREEMENT, OR CONTRACTOR AGREEMENT), REGARDLESS OF WHETHER SUCH CONTRACT WAS ENTERED INTO OR OTHERWISE FACILITATED THROUGH THE SERVICE OR YOU WERE INTRODUCED TO SUCH OTHER USER THROUGH THE SERVICE.

VERTO IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY VERTO, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY VERTO.

THE SERVICES ARE OFFERED AND CONTROLLED BY VERTO FROM ITS FACILITIES IN CANADA AND THE UNITED STATES.  VERTO MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.  THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

Indemnity.  If any action is instituted by a third party against Verto arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by Verto pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Verto and shall pay all damages attributable to such claim which are finally awarded against Verto or paid in settlement of such claim.

Limitation of Liability.  The following provisions are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

Amount.  UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY VERTO, VERTO’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THREE THOUSAND CANADIAN DOLLARS (CA$3,000). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT SHALL VERTO’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

Type.  IN NO EVENT SHALL VERTO BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.  IN NO EVENT SHALL VERTO BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

No Jury Trial.  CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

No Participating in Class Action.  CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

Limitation of Time.  Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.

General Provisions

Assignment.  Customer may not assign this Agreement to a third party without Verto’s’ prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer.  Verto may assign this Agreement or any rights hereunder to any third party without Customer’s consent.  Any assignment in violation of this Section 11.1 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.

Force Majeure.  If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary.  Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance.

Arbitration.  Any dispute or claim between you and Verto, arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules.  The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English.  The number of arbitrators shall be one.  Notwithstanding the foregoing, Verto may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Verto through injunctive relief and other equitable remedies without proof of monetary damages. 

Choice of Law; Jurisdiction.  This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 

Notices.  Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given by email at the addresses provided by Customer through the Service.  Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address.  Notices will be deemed to have been given upon receipt, or when delivery is refused.

Entire Agreement.  This Agreement and any written agreement signed by Verto and you (a “Written Agreement”) are collectively the entire understanding and agreement of the parties, and supersede any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.  In the event of any conflict between the terms and conditions set forth in this Agreement or the Supplemental Term(s) applicable to you and the terms and conditions set forth in a Written Agreement, the terms and conditions of the Written Agreement will prevail solely to the extent of such conflict.

Severability and Waiver.  In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

Relationship of the Parties.  The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.