Updated May 15, 2020
This Agreement is between Health Smart Financial Services Inc. doing business as PayBright (“PayBright”), a Canadian corporation, P.O. Box 64024 RPO 200 Bay Street, Royal Bank Plaza, Toronto, ON M5J 2T6 and the Merchant (“Merchant”). PayBright wishes to provide financing to approved clients of the Merchant, and Merchant wishes to make financing available to its clients, as per the terms and conditions set forth in this Agreement.
When used in this Agreement:
“Aggregate Program Amount” means the aggregate of all Purchase Amounts that have not been repaid to PayBright by all of Merchant’s Clients on the date that this Agreement is terminated;
“Agreement” means this Agreement and all schedules hereto;
“Client” means any individual that is a client or customer of Merchant;
“Client Contract” means the agreement or purchase and sale transaction (including the applicable Merchant terms and conditions of sale) between the Client and the Merchant pursuant to which the Merchant provides goods and/or services to the Client;
“Client Information” means information, including personal information, pertaining to a Client;
“Customer Agreement” means the financing agreement between a Client and PayBright;
“Merchant Amount” means the actual amount funded by PayBright to Merchant, representing the Purchase Amount less Merchant Discount Rates and Credit Card Fees (as defined below);
“PayBright Platform” means the proprietary software products and services and websites provided by PayBright to facilitate online instalment financing applications, approvals, verification, and processing;
“Purchase Amount” means the actual amount borrowed by a Client from PayBright including all accrued and unpaid interest thereon;
“Program” means the financing program contemplated herein, as the same may be amended or modified by PayBright from time to time, whereby PayBright will provide financing pursuant to a Customer Agreement;
“Settlement Account” means the bank account designated by Merchant for receipt of any funds owing to it by PayBright;
“Trademarks” means any design, image, visual representation, logo, service mark, trade dress, trade name, or trademark used by PayBright in connection with the Program, in each case, during the term of this Agreement; and
“Training Guide” has the meaning given to it in Section 2.
2. PayBright Obligations
PayBright shall, subject to Merchant’s compliance with its obligations herein and subject to the restrictions contained herein and any such restrictions, if any, as may be communicated to Merchant in the future by PayBright, make the PayBright Platform available to Merchant and administer the Program for Clients. PayBright reserves the right to evaluate and make periodic adjustments to the Program and its terms and features and shall give Merchant reasonable prior notice of any material adjustments. However, any changes to the Program required to comply with applicable laws shall not require prior notice to Merchant by PayBright. PayBright shall use reasonable efforts to, as soon as practicable after such adjustment to comply with applicable laws, provide notice of same to Merchant.
For financing programs where Merchant’s employees assist Clients with arranging financing from PayBright in person at the point-of-sale, PayBright shall provide Merchant with a training guide (the “Training Guide”) that sets out the procedures pertaining to the Program. PayBright will make customer service support available by phone during PayBright’s advertised business hours.
3. Merchant Obligations
Merchant will process only bona fide charges and shall credit and deliver all goods and/or perform all services covered by the applicable Client Contract in accordance with the terms in such Client Contract. Merchant will maintain fair and legally compliant return, refund and exchange policies, and will ensure that any material restriction or limitation to such return, refund and exchange policies is clearly and conspicuously disclosed in writing to Clients and PayBright prior to, in respect of PayBright, the implementation of such restriction or limitation, and in respect of Clients, the entering into of any Customer Agreement to which such material restriction or limitation will apply.
For financing programs where Merchant’s employees assist Clients with arranging financing from PayBright in person at the point-of-sale, Merchant shall accept and process applications from Clients in accordance with this Agreement, applicable law and the Training Guide. In processing such in-person applications, Merchant shall verify the identity of Clients by obtaining and reviewing a form of Photo ID acceptable to PayBright. Merchant agrees to comply fully with PayBright’s instructions regarding the Program. Merchant shall ensure that each of its Representatives are trained regarding the Training Guide and applicable laws.
For online e-commerce transactions, Merchant will cooperate with PayBright to mitigate instances of, and losses due to, fraud. Merchant will make all reasonable efforts to ensure that Client e-commerce purchases funded by PayBright are screened with Merchant’s fraud detection and mitigation tools, capabilities, and procedures, and cancelled where appropriate, in a manner no less stringent than purchases funded with other payment methods. Merchant will comply with PayBright’s anti-fraud policy concerning product shipping, delivery, and in-store collection (the “Shipping Policy”) as updated from time to time. Where PayBright, in its sole discretion, suspects an e-commerce transaction to be fraudulent, Merchant agrees to comply with any request by PayBright to cancel the transaction.
Merchant shall: (i) actively promote PayBright’s services and encourage its Clients to apply for PayBright financing; and (ii) not make any comment, statement or take any act or encourage any third party to make any comment or statement or take any act that is disparaging to PayBright or the Program or which could reasonably be expected to bring PayBright’s reputation into disrepute.
Except as agreed between PayBright and Merchant, Merchant will not charge any Clients for participation in the Program nor shall Merchant impose a surcharge in respect of transactions made, goods sold or services provided in connection with the Program, and will not, by any means, require the Client to pay all or any part of any charge assessed against Merchant by PayBright. Merchant agrees to offer PayBright’s full credit spectrum plans under the Program, including plans offered by PayBright’s partners.
4. Joint Obligations
PayBright and Merchant shall each be responsible for complying with the terms of this Agreement that are applicable to it and for ensuring that the Program is conducted by it in accordance with all applicable laws. PayBright and Merchant shall each maintain the confidentiality of all Client Information, as required by this Agreement or as required of such party by applicable law.
5. PayBright Fees
PayBright shall charge Merchant the per-transaction fees, which shall be calculated as percentage of each Purchase Amount based upon which payment plans Merchant chooses under the Program. Depending on the payment plans offered under the Program, PayBright may also charge interest, administration fees, and processing fees to Clients in connection with loan transactions.
Where the Client repays PayBright via credit card (or VISA- or MasterCard-branded debit cards) under the terms of the Customer Agreement, PayBright shall charge Merchant a credit card fee (“Credit Card Fee”) per financed loan transaction equal to 1.95% of the Purchase Amount. For greater clarity, Merchant Discount Fees and Credit Card Fees, if applicable, shall be withheld from the amount funded by PayBright to Merchant following a loan transaction.
In respect of transactions refunded under the terms of Section 9 of this agreement, PayBright will charge Merchant a one-time Refund Fee as defined and set out in Section 9.
Any Fees hereunder may be amended by PayBright from time to time upon thirty (30) days’ prior written notice to the Merchant. All amounts owing by Merchant to PayBright under this Agreement that are not paid within 30 days of the date payment is due shall be subject to interest at a rate per annum equal to the lesser of: (i) the Prime Rate as posted by the Toronto Dominion Bank plus three (3) percent, or (ii) the maximum rate allowable by law.
6. Settlement Account
Following confirmation to Merchant by PayBright that an application by a Client satisfies, in PayBright’s sole and absolute discretion, PayBright’s credit, documentation, anti-fraud, and other lending criteria, PayBright shall credit the Merchant Amount to the Settlement Account by the next business day. Merchant hereby acknowledges and agrees that PayBright may from time to time deviate from such settlement time and that such deviation shall not constitute a breach of this Agreement provided that payment is made by PayBright within five (5) business days following such confirmation date.
PayBright may deduct from the Settlement Account any amounts owing to it including, without limitation, any amounts owing pursuant to any obligation of Merchant to indemnify PayBright under this Agreement, or as a result of any chargeback, as contemplated in section 8 below.
Merchant hereby agrees that from the date of this Agreement until the date that is six (6) months following the date of termination of this Agreement it shall continue and maintain the Settlement Account and it shall not, without the prior written approval of PayBright, replace, revise, close or alter the Settlement Account in any way including that no change shall be made to the right of PayBright to deduct therefrom as permitted hereby. Merchant hereby agrees that, for a period of six (6) months following the termination of this Agreement it shall, if required by PayBright, promptly deposit and thereafter maintain for the remainder of such six (6) month period a sum of monies in the Settlement Account equal to the Aggregate Program Amount (or equal to a projected Aggregate Program Amount as determined by PayBright if this Agreement is less than six (6) months old), which monies shall be used to settle any obligations of Merchant to PayBright hereunder. The provisions of this section 6 (and any provisions necessary to give effect to this section 6) shall survive the termination of this Agreement.
7. Dispute Resolution and Chargeback Rights
Any issue concerning this Agreement will initially be addressed by each party’s applicable representatives (excluding their legal counsel). If the parties are not successful in resolving an issue or dispute pursuant to such informal process, or if the issue is material and either party believes the parties will not be successful in resolving such issue or dispute pursuant to such process, then either party may issue a formal written notice that a dispute has arisen and such dispute shall be resolved in accordance with Section 12.
Unless otherwise agreed between the parties, PayBright will bear all credit losses due to nonpayment by Clients. Notwithstanding the foregoing, PayBright may charge back amounts to Merchant (and deduct the applicable amount from the Settlement Account) in respect of any Customer Agreement if one or more of the following occurs:
(i) PayBright notifies Merchant that a Client disputes the charge of Merchant and within ten (10) calendar days of such notice, either (a) Merchant fails to respond to PayBright; or (b) Merchant responds to PayBright, but PayBright determines that the Client’s dispute is valid.
(ii) the Client refuses to pay based on an assertion of a dispute about the quality of the merchandise purchased or services provided by or on behalf of Merchant, including any alleged breach of warranty provided by or through Merchant. Before charging back, PayBright will first request a written response from Merchant regarding the Client’s assertions. If (a) no written response is received within ten (10) calendar days from the date of PayBright’s request, then PayBright will charge back Merchant for the transaction; or if (b) a written response is so received, PayBright will charge back the Merchant for the transaction if PayBright determines the Client’s assertion is valid or could reasonably be expected to be valid.
(iii) the charge of the Merchant is disputed, and Merchant cannot supply a copy of the underlying sales receipt within ten (10) calendar days of PayBright’s request.
(iv) PayBright determines that any charge does not represent a bona fide sale or service (including without limitation, charges arising from fraudulent activities of Merchant’s employees) by Merchant.
(v) PayBright determines that the transaction was a result of Merchant’s employees fraudulently providing inaccurate Client Information in the application process.
(vi) the Client asserts that the goods or services purchased by the Client from the Merchant have not been fully delivered, performed, provided or shipped.
(vii) the Client alleges that the Merchant provided false or misleading information (e.g. incorrect information about credit promotions).
(viii) the transaction is rescinded as permitted by and in accordance with applicable law.
When a chargeback may be, or actually is, made pursuant to the rights set forth above, Merchant agrees that it will promptly reimburse PayBright on demand (and that PayBright may, without prior notice to Merchant, charge the Settlement Account, provided that any such charge to the Settlement Account shall not relieve the Merchant of its obligations to reimburse PayBright if the funds in the Settlement Account being charged are insufficient) for the full amount of the outstanding Purchase Amount (and the Merchant agrees to promptly deposit into the Settlement Account such funds as PayBright may require in order for the Settlement Account to have sufficient funds from PayBright to charge hereunder).
Upon the outstanding Purchase Amount being fully repaid to PayBright by Merchant and/or the Client, as the case may be, PayBright will assign to Merchant, upon written request by Merchant, the right to collect from the Client the amount paid by Merchant to PayBright under this section 8.
Merchant agrees to promptly notify PayBright of it becoming aware of any dispute, allegation or state of facts regarding any of the above. Merchant will provide to PayBright all documents, information and correspondence as PayBright may request in connection with PayBright enforcing its rights or performing its obligation under this Agreement or the Customer Agreement. The provisions of this section 8 (and any provisions necessary to give effect to this section 8) shall survive the termination of this Agreement.
Refunds will be subject to Merchant’s stated refund policy. If directed by Merchant, PayBright will facilitate refunds for Clients, provided that such refund transactions are initiated by Merchant within 90 days of the effective date of the applicable Customer Agreement, unless otherwise agreed between Merchant and PayBright. If Merchant wishes to facilitate a refund after 90 days (unless otherwise permitted by PayBright in its sole discretion), the Client is required to pay off the remainder of their loan under the terms of the Customer Agreement and Merchant must refund the Client directly.
If a transaction is fully refunded, PayBright will cancel the relevant Customer Agreement and deduct from the Settlement Account an amount equal to the Merchant Amount plus an amount equal to:
(i) for refunds of Equal Monthly Payment plans, the greater of: (a) $15; and (b) the applicable fee calculated according to the refund fee schedule below; and
(ii) for refunds of Pay in 4 payment plans, the Merchant Discount Fees charged in respect of the Purchase Amount refunded
(the amount calculated pursuant to the foregoing referred to as the “Refund Fee”).
PayBright will reimburse the Client for the principal of any loan payments made to PayBright prior to the refund. The Client may still owe PayBright finance charges if required under the terms of the Customer Agreement.
If a transaction is partially refunded, the relevant Customer Agreement will remain in effect and PayBright will deduct from the Settlement Account an amount equal to the refunded portion of the Merchant Amount plus the Refund Fee. The amount of the refund will first be applied to reduce the Client’s outstanding loan balance, and any remaining refund amount will then result in a partial reversal of the principal of any loan payments made by the Client to PayBright prior to the refund. The Client may still owe PayBright finance charges if required under the terms of the Customer Agreement.
Refund Fee Schedule:
|Refund Fee (% of Purchase Amount refunded) based on days elapsed after date of Customer Agreement|
|Purchase Amount Refunded||Before Funding to Merchant||0 - 30 days||31-60 days||After 60 days|
|Up to $999.99||No cost||1.95%||2.45%||2.95%|
|$1,000.00 to $2,499.99||No cost||1.45%||1.95%||2.45%|
|$2,500.00 to $4,999.99||No cost||0.95%||1.45%||1.95%|
|$5,000.00 or greater||No cost||0.75%||1.25%||1.50%|
The provisions of this section 9 (and any provisions necessary to give effect to this section 9) shall survive the termination of this Agreement.
9. Merchant Information
Merchant represents and warrants to PayBright that the information furnished by Merchant to PayBright in its application for participation in the Program is complete and accurate and fairly presents the financial condition and business of Merchant. Such information will be maintained by PayBright in a separate file for Merchant and will only be used: (i) in furtherance of the credit process, including to obtain and exchange credit information from and with credit reporting agencies, credit references and other sources with whom Merchant has or may expect to have financial dealings, including PayBright’s affiliates, to underwrite and approve this Agreement and the Customer Agreement; and (ii) to enter into, maintain and carry out this Agreement and the Customer Agreement.
Additionally, Merchant will provide PayBright upon request a copy of Merchant’s prepared financial statements and such other information as PayBright may reasonably request. Merchant will also provide PayBright with information of any change of control involving Merchant, the sale of all or any material portion of the business of Merchant or any change in Merchant’s name, business structure or form or principal, registered or head office, or province of incorporation, before such change occurs. Merchant authorizes PayBright at any time to order or obtain a consumer or commercial report on Merchant and personal credit reports on the principals of Merchant (owners, partners, members, etc.). Subsequent reports may be ordered in connection with updating, reviewing, or continuing this Agreement.
10. Intellectual Property
a) Trademarks. PayBright hereby grants Merchant a limited, non-exclusive and royalty free licence to use the Trademarks solely in conjunction with and in support of the Program. Merchant shall adequately display on Merchant’s website(s) PayBright logos specified and supplied by PayBright, and such logos must be displayed with equal prominence to the logo for Merchant’s other payment options. The Trademarks may not be used for any other purpose or by any other person for any other reason except as specifically approved for the Program. This license shall remain in effect for the duration of this Agreement, and shall apply to all Trademarks notwithstanding the transfer of such Trademarks by operation of law or otherwise to any permitted successor, corporation, organization or individual.
b) Ownership. Merchant shall not obtain any right, title or interest, including any copyrights or any other proprietary right to the PayBright Platform. At all times, PayBright retains all rights, title and interest to the PayBright Platform, including but not limited to any updates, enhancements or additions. Merchant shall not disclose the PayBright Platform to any person, nor convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, create any derivative work based or otherwise attempt to discover the source code or trade secrets of the PayBright Platform or any related technology.
c) Platform Service and Maintenance. Merchant will promptly notify PayBright of any failure or other incident resulting in the loss of use of the PayBright Platform or need for repair or maintenance, whereupon PayBright will use commercially reasonable efforts to repair or make the necessary arrangements to obtain required maintenance. Merchant shall cooperate with PayBright and its representatives, vendors and suppliers, in the attempt to diagnose any problem with the PayBright Platform and achieve service restoration. Merchant acknowledges that PayBright does not warrant that any such repair or maintenance efforts will be successful. If PayBright’s efforts are not successful, Merchant may terminate this Agreement in accordance with Section 11. The foregoing shall constitute Merchant’s sole remedy, and PayBright’s sole liability, for interruptions, outages or other delays in the Program or PayBright Platform.
11. Data Protection
Merchant acknowledges and agrees that in connection with this Agreement, each of Merchant and PayBright will, independent from one another, form a direct relationship with each Customer governed by each of Merchant’s and PayBright’s respective privacy policies and other applicable legal agreements. Merchant acknowledges and agrees that each of Merchant and PayBright will be responsible for complying with applicable privacy laws in respect of Customer personal data and shall have no responsibility or liability for the other in respect of same.
12. Term and Termination
This Agreement has an initial term of three (3) years (the “Initial Term”) and shall renew automatically for successive additional terms of one (1) year following the expiration of the Initial Term (each a “Renewal Term”, and all Renewal Terms together with the Initial Term, the “Term”). This Agreement may be terminated by any party upon ninety (90) days’ prior to such automatic renewal, provided that the party wishing to terminate this Agreement has no outstanding financial obligations to the other party. In the event of any termination, or at any time upon PayBright’s request, Merchant will: (i) immediately return to PayBright any PayBright proprietary materials and information in Merchant’s possession or control, including without limitation all PayBright Confidential Information (as defined below). Any provisions of this Agreement (including, but not limited to, confidentiality, indemnity and obligations to fund and maintain the Settlement Account for six (6) months post-termination) that by their nature expressly or implicitly extend beyond termination will remain in effect in accordance with their terms.
13. Exclusivity in Canada
Merchant agrees to use PayBright as its exclusive provider for installment payment options in Canada during the Initial Term.
Merchant grants PayBright the right to use Merchant’s company name and logo in press releases, for other marketing, promotional, or commercial purposes (including PayBright’s website and web applications), and in other public or private communications with existing or potential PayBright merchants and customers, subject to any standard usage guidelines Merchant may provide to PayBright.
15. Governing Law
This Agreement shall be governed by and is subject to the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party attorns to the Courts of the Province of Ontario situated in the City of Toronto with respect to any dispute under this Agreement.
Merchant will treat as confidential all data, records, accounts, and other information regarding PayBright and its affiliates that become known to Merchant or is generated by Merchant through its activities hereunder, including information regarding PayBright and its affiliates’ operations, policies, procedures, methodologies, materials, employees, clients, information technology systems, and financial information and plans (“PayBright Confidential Information”). Merchant’s confidentiality obligations include establishing and maintaining appropriate safeguards, procedures, and systems to avoid the unauthorized destruction, loss, alteration, access to, or disclosure of any PayBright Confidential Information, in accordance with the standards of the applicable industry and as otherwise required by applicable law. During and after the term of this Agreement, Merchant will not use or disclose the PayBright Confidential Information, except for the purposes of the Program in accordance with this Agreement, or as may be required by law, regulation or court order. The obligations of confidentiality under this Section do not apply to any information to the extent it:
(i) was known to Merchant prior to its receipt of or access to that information from PayBright,
(ii) was or becomes a matter of public information or publicly available through no act or failure to act on the part of Merchant,
(iii) is acquired from a third party entitled to disclose the information without obligation of confidentiality, or (iv) is developed independently and without use of the PayBright Confidential Information.
Merchant will indemnify, hold harmless and defend PayBright and its directors, officers, shareholders, agents, and employees against any and all damages, suits, actions, claims, liabilities, losses, judgments, costs and expenses arising out of or relating to any breach by Merchant or a Representative of Merchant of this Agreement. In addition, PayBright is entitled to seek injunctive relieve and specific performance as a remedy and Merchant agrees not to oppose the granting of such relief to PayBright. IN NO EVENT SHALL PAYBRIGHT BE LIABLE TO MERCHANT OR ANY CLIENT FOR ANY SPECULATIVE, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL LOSSES, DAMAGES OR EXPENSES OR FOR ANY LOSS OF PROFITS OF ANY KIND.
PayBright may in its sole discretion amend the terms of this Agreement from time-to-time and Merchant’s continued use of the PayBright Platform after the effectiveness of any such amendment constitutes Merchant’s acceptance of the amended Agreement. When any such amendment is, in PayBright’s sole discretion, material, PayBright will make reasonable efforts to notify Merchant of such amendment.
This Agreement represents the entire agreement between the parties pertaining to the subject matter hereof and supersedes all other agreements, arrangements and/or understandings between the parties in respect to all matters governed by this Agreement.
Merchant may not assign this Agreement, in whole or in part, without the prior written consent of PayBright.
Merchant may not subcontract: (i) any of its obligations hereunder, or (ii) the provision of goods or services to its Client who have entered into a Client Contract, without PayBright’s prior written consent. Any attempt to assign or subcontract without consent is void. Any approved subcontracts will be subject to all conditions of this Agreement, and Merchant will be responsible for the performance of its subcontractors to the full extent as if employed directly by Merchant.
If any part, term or provision of this Agreement is held to be illegal, in conflict with any applicable law or otherwise invalid, the remaining portion or portions shall be considered severable and unaffected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be illegal or invalid. In any case, the remaining provisions of this Agreement will remain in full force and effect.
The failure or delay of either party to insist on strict performance of any term or condition, or to exercise any right or remedy in this Agreement, is not intended, and will not be construed as, a waiver of any such right or remedy.
Merchant is an independent contractor with respect to PayBright, and nothing in this Agreement constitutes the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.