Last Updated: June 12, 2018
Account Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY.
The following terms of service (the "Terms of Service") form an integral part of the Paystone Merchant Agreement between Paystone Inc. and any subsidiaries or affiliates such as Givepoint (collectively or individually "Paystone") and the Merchant identified in the Agreement ("Merchant"). Capitalized terms shall have the meanings set forth below or in the section in which they first appear in these Terms of Service. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement Terms and Conditions. These Terms of Service, the Paystone Merchant Agreement and the Agreement Terms and Conditions are collectively referred to herein as the "Agreement".
"Access Credentials" means any user name, identification number, password, license or security key, security token, or other security code, method, technology, or device used, alone or in combination, to verify a User's identity and authorization to access and use the Service.
"Merchant Data" means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Paystone, directly or indirectly, by the Merchant or a User in connection with the Service.
"Merchant Systems" means the Merchant's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by the Merchant or through the use of third-party services.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent the Merchant or any User from accessing or using the Service or Paystone Systems as intended by this Agreement.
"Intellectual Property Rights" means: (a) any and all proprietary rights provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trade-mark law; (iv) design patent or industrial design law; or (v) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in ideas, formulae, algorithms, concepts, inventions, processes or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions, processes or know-how; and (b) any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and "Processing" and "Processed" have correlative meanings.
"Service(s)" means the Paystone Account and its associated features.
"Software" means Paystone's proprietary software applications (including the Paystone Account) and any third-party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Paystone provides access to and use of as part of the Services.
"User" means an employee of the Merchant.
"Website" means the Paystone website located at the URL https://www.paystone.com.
"Paystone Materials" means the Paystone Systems, Software, Website and any and all other information, data, documents, materials, works, and other content that are provided or used by Paystone in connection with the Services or otherwise comprise or relate to the Services or Paystone Systems, including any third-party materials contained therein, but excluding the Merchant Data. For the avoidance of doubt, Paystone Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Paystone under this Agreement.
"Paystone Systems" means the information technology infrastructure used by or on behalf of Paystone in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Paystone or through the use of third-party services.
1. Services and Software
1.1 License. The Merchant acknowledges and agrees that the Services made available to the Merchant by Paystone are licensed and not sold to the Merchant. Unless otherwise stated in this Section 1.1, and at all times subject to the Merchant's compliance with the terms and conditions of the Agreement Paystone hereby grants the Merchant a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to: (a) access and use the Service during the Term solely for purposes of Merchant's internal business operations; and (b) install, access, and use the Software, in object code form only, in connection with Merchant's use of the Services. The Merchant may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that the Merchant shall ensure its Users' compliance with the Agreement and the Merchant shall be responsible and liable for any User's non-compliance with the Agreement.
The Merchant acknowledges and agrees that Paystone may revoke the license set out in this Section 1.1 at any time, with or without reason. The license granted hereunder will also terminate, with immediate effect, if the Merchant (or a User of the Merchant) breaches any term or condition of this Agreement.
1.2 Updates. Paystone may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, "Updates"). Updates may also modify or delete in their entirety certain features and functionality of the Service. The Merchant acknowledges and agrees that Paystone may provide such Updates from time to time, provided, however, that Paystone has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If the Merchant downloads a Paystone-branded mobile application ("Application") on a mobile device, when such mobile device is connected to the Internet, either: (a) the Application will automatically download and install all available Updates; or (b) the Merchant may receive notice of or be prompted to download and install available Updates. The Merchant acknowledges and agrees that the Applications or portions thereof may not properly operate should the Merchant fail to download Updates.
1.3 Limitations and Restrictions. The Merchant acknowledges and agrees that the Merchant is responsible for its activities, and the activities of its Users while using the Services. The Merchant shall not, and shall not permit any User or other person or entity to, access or use the Service or Paystone Materials except as expressly permitted in the Agreement. Without limiting the foregoing, the Merchant shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Paystone Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer the Service or any Paystone Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Paystone Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or Paystone Materials or access or use the Service or Paystone Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Paystone Systems any Merchant Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third-party; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Paystone Materials, or Paystone's provision of services to any third-party, in whole or in part; (g) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Paystone Materials; (h) access or use the Service or Paystone Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party, or that violates any applicable law; (i) access or use the Service or Paystone Materials for purposes of competitive analysis of the Service or Paystone Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Paystone's detriment or commercial disadvantage; or (j) otherwise access or use the Service or Paystone Materials beyond the scope of the rights granted under Section 1.1 (License) above.
2. Certain Merchant Obligations.
2.1 Merchant Control and Responsibility. The Merchant has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Merchant Systems, and the Merchant has and shall retain sole responsibility for: (a) all Merchant Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of the Merchant in connection with the Services; (c) the Merchant Systems; (d) the security and use of Merchant's Access Credentials; and (e) all access to and use of the Service and Paystone Materials directly or indirectly by or through the Merchant Systems or the Merchant's Access Credentials, with or without the Merchant's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Paystone is not liable for any loss or damage arising from Merchant's failure to protect its Access Credentials.
2.2 Corrective Action and Notice. If the Merchant becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), the Merchant shall, and shall cause its Users to, immediately: (a) notify Paystone of any such actual or threatened activity; and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.
4. Communications and Feedback.
4.1 Paystone does not guarantee the confidentiality of any communications made by the Merchant or a User to Paystone or any other information transmitted by the Merchant or a User to Paystone, including communications made by email or any information transmitted in the Merchant's use of the Services. Paystone may retain a copy of any such communications for the purpose of, and to the extent necessary for Paystone to comply with applicable legal, regulatory or internal backup requirements.
4.2 By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to Paystone ("Feedback") to Paystone, the Merchant acknowledges that: (i) the Merchant's and/or a User's Feedback does not contain confidential or proprietary information; (ii) Paystone is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (iii) the Merchant grants Paystone and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) the Merchant irrevocably waives any of its moral rights in and to such Feedback and assigns to Paystone all rights in and to the Feedback in perpetuity; (v) neither the Merchant or any Users are entitled to any compensation or reimbursement of any kind from Paystone under any circumstances; and (vi) the Merchant represents and warrants to Paystone, and can demonstrate to Paystone, upon request, that the Merchant has the rights to grant Paystone the rights set out in (iii) above.
5.1 Services and Paystone Materials. As between Merchant and Paystone, Paystone is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and Paystone Materials, including all Intellectual Property Rights therein and thereto. Other than the limited license granted to Merchant pursuant to Section 1.1 (License) above, nothing in the Agreement grants Merchant any right, title, or interest in or to the Services or Paystone Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to Paystone.
5.2 Service Analyses. Paystone may: (a) compile statistical and other information related to the performance, operation, and use of the Services; and (b) use data from the Paystone Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (both (a) and (b) collectively referred to as, "Service Analyses"). Paystone may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Merchant Data in a form that could serve to identify the Merchant or any individual. Service Analyses do not constitute Merchant Data, and Paystone shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
6. Other Websites and Ancillary Services.
6.2 Ancillary Services. As part of the functionality of certain parts of the Services, the Merchant may have access to certain third-party online services ("Ancillary Services"). The Service is designed to allow the Merchant to access accounts that the Merchant may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s). The Merchant acknowledges and agrees that: (a) some third parties may not allow the Services to access certain Ancillary Services; and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to Paystone, that may affect overall performance of the Services and prevent or delay aggregation of information from the Merchant's account(s) on such Ancillary Services. The Merchant acknowledges and agrees that Paystone has no control over any of the Ancillary Services and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in the Merchant's inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services.
6.3 Collection of Ancillary Account Data. The Merchant acknowledges that in accessing the Ancillary Services through the Service, the Merchant's username(s), password(s), and any other security or access information for the Merchant's account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, "Ancillary Account Data"), may be collected and stored through the Service. The Merchant authorizes Paystone, in conjunction with Paystone's provision of the Services, to: (a) access the Merchant's account(s) on Ancillary Services and collect and Process the Merchant's Ancillary Account Data; (b) access the applicable third-party websites and Ancillary Services using the Merchant's Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above.
7. Changes and Suspension.
7.1 Changes to the Services. Paystone reserves the right to make changes to the Services and Paystone Materials, or any portion thereof, for any reason. Merchant agrees that Paystone will not be liable to Merchant or third-party for any such change.
7.2 Temporary Suspension of the Services. Paystone may temporarily suspend the Service, in whole or in part, where required by law (in the case of security violations or threats), for service maintenance or repair, or for any other reason deemed necessary by Paystone in the circumstances.
7.3 Suspension of Merchant's Access. Paystone may suspend the Merchant's and/or any of its Users' access to or use of all or any part of the Services or Paystone Materials, without incurring any resulting obligation or liability, if: (a) Paystone receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Paystone to do so; (b) Paystone believes, in its good faith and reasonable discretion, that Merchant or any of its Users have violated any part of these Terms of Service, including the provisions of Section 1.3 (Limitations and Restrictions); or (c) the Merchant fails to pay any amount when due under the Agreement. Any such suspension shall not excuse the Merchant from its obligation to make the payment(s) contemplated under the Agreement to Paystone.
8.1 Indemnification of Paystone. The Merchant will indemnify, defend, and hold harmless Paystone, its Affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys' fees) arising out of or in connection with any third-party claim, action, suit, or proceeding arising out of or related to: (a) Merchant Data, including any Processing of Merchant Data by or on behalf of Paystone in accordance with this Agreement; (b) Paystone's compliance with any specifications or directions provided by or on behalf of Merchant; or (c) any breach or violation of this Agreement or applicable law by Merchant, any User, or any other person accessing and/or using any of the Services or Paystone Materials directly or indirectly by or through the Merchant Systems or Merchant's Access Credentials, with or without Merchant's knowledge or consent. Furthermore, the Merchant will defend, indemnify and hold harmless Paystone, its Affiliates and each of their respective directors, officers, employees, contractors, suppliers, licensors, representatives and agents from all liabilities, claims and expenses (including reasonable legal fees) that arise from, are based upon or in connection with, or relate to the Merchant's use of the Services, or anyone using the Merchant's (or a User's) login credentials to the Services, or any violation or alleged violation by the Merchant or a User using the Merchant's (or a User's) login credentials of these Terms of Service.
9.1 Disclaimer of Warranties. THE MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, EQUIPMENT, AND PAYSTONE MATERIALS IS AT THE MERCHANT'S SOLE RISK. ALL SERVICES, EQUIPMENT, AND PAYSTONE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND PAYSTONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, PAYSTONE DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, EQUIPMENT, OR PAYSTONE MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET THE MERCHANT'S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
IN NO EVENT WILL PAYSTONE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT RESULT OR ARISE FROM OR ARE IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, EQUIPMENT AND PAYSTONE MATERIALS OR ANY THIRD-PARTY WEBSITES, EVEN IF PAYSTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MERCHANT HEREBY EXPRESSLY HOLDS PAYSTONE HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITY, DAMAGES, INJURIES AND EXPENSES (INCLUDING ANY PERSONAL INJURY CLAIMS) ARISING OUT OF OR RELATING TO THE MERCHANT'S (OR A USER'S) USE OF ANY OF THE SERVICES, EQUIPMENT OR PAYSTONE MATERIALS, THIRD-PARTY WEBSITES AND ANY ALLEGED OR ACTUAL VIOLATION BY THE MERCHANT (OR A USER) OF THESE TERMS OF SERVICE.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN THE MERCHANT'S JURISDICTION, PAYSTONE WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO THE MERCHANT (OR A USER), INCLUDING ANY LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TERMS OF SERVICE WILL APPLY: (i) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY THE MERCHANT (OR A USER), INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS OF SERVICE OR OF ANY REMEDY CONTAINED HEREIN; AND (ii) TO PAYSTONE AND ITS AFFILIATES, THEIR SUCCESSORS, ASSIGNS, AGENTS, SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND INDEPENDENT CONTRACTORS.
THE MERCHANT ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS OF SERVICE CONSTITUTE AN ESSENTIAL ELEMENT OF THESE TERMS OF SERVICE AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS, THE FEES AND OTHER TERMS IN THESE TERMS OF SERVICE WOULD BE SUBSTANTIALLY DIFFERENT. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE, IN NO EVENT WILL ANY DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS OF PAYSTONE OR ANY DISTRIBUTORS, SUPPLIERS, INDEPENDENT CONTRACTORS, CUSTOMERS, PARTNERS OR ORGANIZATIONS THAT WORK WITH PAYSTONE IN CONNECTION WITH THE SERVICES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, OR ANY AFFILIATES OF PAYSTONE HAVE ANY LIABILITY ARISING FROM OR RELATED TO THESE TERMS OF SERVICE, THE SERVICES, EQUIPMENT OR PAYSTONE MATERIALS.
9.2 No Professional Advice.The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. The Merchant should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.
10. Limitation of Liability.
10.1 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF PAYSTONE, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY MERCHANT TO PAYSTONE UNDER THE AGREEMENT DURING THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.1 Assignment. Paystone may assign this Agreement, in whole or in part, without notice or consent. Paystone may perform all obligations hereunder directly, or may have some or all of its obligations performed by contractors, subcontractors or other third-parties. The Merchant may not assign this Agreement, in whole or in part, without the prior written consent of Paystone, and any such assignment by the Merchant without Paystone's prior written consent will be of no effect.
11.2 Force Majeure. Notwithstanding anything contained in this Agreement, Paystone will not be in default or breach of these Terms of Service for failure to fulfill our obligations when due to or contributed by causes beyond our reasonable control, including: an act of God such including a fire, flood, earthquake, epidemic, volcanic eruption, adverse weather conditions, storm, hurricane or other natural disaster, a strike, lock-out, labour dispute; war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war rebellion revolution insurrection or military or usurped power, terrorism, act of sabotage, civil disturbance, blockade, riot, civil commotion, malicious damage, interruption or failure of electricity, power supply, interruption or failure of the internet or other telecommunication facility, network or means of telecommunication, computer virus, or bug, third-party computer infiltration, attack by a hacker, governmental restriction, or any other act or circumstance that materially increases or affects the risk or danger to the health or safety of members of the public.
11.3 Geographic Restrictions. Paystone does not represent that the Service or any Paystone Materials are appropriate or available for use outside of Canada. Access to and use of the Service may not be legal by certain persons or in certain countries. If the Merchant accesses the Service from outside Canada, the Merchant does so on its own initiative and is responsible for compliance with all applicable laws.
11.4 Notices. All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at Paystone's discretion) set forth in the Application and will be deemed to have been provided on the date in which the notice was sent. All notices to Paystone required or permitted under the Agreement will be provided via registered mail to:
3200 Wonderland Road South
Attention: Corporate Counsel
and will be deemed to have been given on the date of Paystone's receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes.
11.5 No Waiver; Severability. The failure of Paystone to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law.
11.6 Governing Law; Jurisdiction; Class Action Waiver. This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. Paystone reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owed by the Merchant to Paystone in connection with the Merchant's use of the Services, the Paystone Materials or any portion thereof; or (ii) the Merchant's actual or threatened violation of this Agreement or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to this Agreement, and/or any of the Services and/or the Paystone Materials. The Merchant agrees that, in the event that there is a dispute under the Agreement and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from the Agreement; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 11.3 is found to be unenforceable, the remainder of this Section 11.3 will still be given full force and effect.
11.7 Changes. Paystone reserves the right at any time, and from time to time, to change these Terms of Service and to notify you of such change by posting the updated version of these Terms of Service on the Website. The Merchant acknowledges and agrees that it is responsible for regularly reviewing these Terms of Service, including by checking the date of the "Last Update" at the beginning of these Terms of Service. Continued use of any Services after any such changes will constitute the Merchant's consent to be bound by such changes, with continued provision of the use of the Services in whole or in part, constituting consideration from Paystone to the Merchant for so being bound. The Merchant's sole right with respect to any dissatisfaction with these Terms of Service, any policy or practice of Paystone in operating, offering or providing the Services, is to stop using the Services.
11.8 Survival. The following sections of these Terms of Service will survive any termination of these Terms of Service, termination of this Agreement, or revocation of the License to the Merchant under Section 1.1: Definitions, Section 4 (Communications & Feedback), Section 5 (Content), Section 6 (Other Websites and Ancillary Services), Section 8 (Indemnification) Section 9 (Disclaimers), Section 10 (Limitation of Liability) and this Section 11 (General).
11.9 Language. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.