Overview of this Agreement

These Wave Payments Terms of Service (this “Agreement”) constitute a legal agreement between you (“Merchant”, “User,” “You” or “Your”) and Wave Financial Inc. (“Wave,” “We,” “Our” or “Us”) and govern your access to and use of Wave’s payment services (the “Service” or “Wave Payments”). To use the Service, you must agree to all the terms of this Agreement. “You” includes the business registering for the Service, the business owner or principal, and the individual registering the business for the Service.

This Agreement is in addition to Wave's Terms of Use ("Wave TOU") and is incorporated by this reference into, and is governed by, the Wave TOU. To the extent there is any conflict between the Wave TOU and this Agreement, the terms of this Agreement will prevail only with respect to Wave Payments.

The Arbitration Provision in Section O. of the Wave TOU (the “Arbitration Provision”) applies to this Agreement and any dispute arising out of or relating to this Agreement.

PLEASE READ THIS AGREEMENT AND THE WAVE TOU CAREFULLY BEFORE USING OR ACCESSING THE SERVICE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS IN THIS AGREEMENT AND THE WAVE TOU, DO NOT USE OR ACCESS WAVE PAYMENTS. YOUR CONTINUED USE OF AND/OR ACCESS TO THE SERVICE WILL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE THEN-CURRENT VERSION OF THIS AGREEMENT AND THE WAVE TOU.

Definitions

All defined terms in this Agreement will have the meaning assigned to them below or in this Agreement and will apply both to their singular and plural forms, as the context may require. Capitalized terms not expressly defined in this Agreement have the meaning given to them in the Wave TOU.

"Bank" means the Bank that is the member of the Networks to whom Wave relays the payment information.

"Cardholder Data" is information associated with a payment card, such as account number, expiration date, and security code also known as the CVV or CVC.

"Customers" means third parties who purchase goods or services from you and provide payment through the Service.

"Laws" means laws, rules, and regulations.

"Networks" means Visa, Mastercard, American Express, and other payment card networks, and the Electronic Funds Transfer (EFT) network.

"Operating Regulations" means the guidelines, by-laws, operating regulations and all other rules, policies, and procedures of the Networks supported by Wave including the payment card network operating rules for Visa, Mastercard, or American Express networks; and the Payments Canada operating rules governing the EFT network.

"Service" or "Wave Payments" means the payment processing service provided by Wave as described in this Agreement.

"Wave Payments Account" means the account that you must apply for when you register to use the Service and through which you access the Service.

"Wave TOU" means Wave's Terms of Use that applies to all Services offered by Wave.

A. The Wave Payments Service

1. General

This Service allows you to accept, from Customers, card payments initiated with cards bearing the trademarks of Visa, Mastercard American Express, and other payment card networks and electronic bank account payments over the Electronic Funds Transfer (EFT) network. To facilitate your receipt of payment, Wave initiates the payment process by providing information to a payment processor. Wave is not a bank or a payment processor. The payment processor relays information to the Bank. Our obligation to pay you as the Merchant is subject to: (a) the provisions of our agreement with the Bank, and (b) the “Operating Regulations” of the particular Network.

2. Applying for an Account

The Service is offered to persons in Canada operating a business selling goods or services. To use the Service, you must register with Wave to apply for a Wave Payments Account. You may apply as an individual (sole proprietor) if you are at least eighteen (18) years old, or as a company or other business entity. If you apply as a company or other business entity, you must provide information about the business, as well as information about your beneficial owners or principals of the business and you (meaning the individual registering on behalf of the business or non-profit organization) must be authorized to act on behalf of the business. In the event that the business changes ownership, the new owner will need to register and apply for their own Wave Payments Account and cannot take over an existing account. By applying for a Wave Payments Account, you represent and warrant that you are applying on your own behalf (if you are applying as an individual or sole proprietor), or that you are applying on behalf of a business or nonprofit organization and you have the authority to enter into this Agreement on its behalf. Your acceptance of this Agreement constitutes acceptance by such business or nonprofit organization.

3. Verification & Accuracy

You must provide accurate and complete information. If we cannot verify that the information you provide is complete and accurate, we may deny your use of the Service, and, at our option, your Wave Payments Account. You agree to immediately notify us if you discover that any information that you provided to us is inaccurate or out of date and to immediately correct and update all such information as necessary from time to time. 

You agree and consent to Wave verifying the accuracy of any information you provide, either directly or through inquiry of third parties such as credit bureaus, credit reporting agencies, or other third parties (including but not limited to telecommunication and utility providers), when you apply for a Wave Payments Account and through your use of your Wave Payments Account. You agree and consent to Wave obtaining a consumer report on you from a consumer reporting agency or credit bureau to determine if you meet eligibility requirements. You also authorize Wave to periodically obtain additional credit reports to determine whether you continue to meet the requirements for the Service.

4. Underwriting and Sharing Information

Wave may share some or all of the information about you, your website and business, your use of the Service, and your transactions with our partners and service providers (and their respective affiliates, agents, subcontractors, and employees), who may use this information to perform their obligations under their agreements with Wave, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, and for any other lawful purpose. You agree that Wave, its partners and service providers (and their respective affiliates, agents, subcontractors and employees) are permitted to conduct monitoring of your Merchant website and payment transactions. The Networks may use your name, address, and website address (URL) in any media from time to time in lists of Merchants published by the Networks. At any time, Wave, its processor or its other partners may conclude that you will not be permitted to use the Service.

You agree that Wave is permitted to contact banks and other financial institutions, your customers or your customers' banks and obtain information, as permitted by applicable Law, about the business applying for the Service, the business owners or principals and accounts held by the business, business owners or principals. Wave may share information about you in accordance with our Privacy Policy. This includes sharing information:

• For regulatory or compliance purposes;
• For use in connection with the management and maintenance of the Service;
• For the maintenance of customer records about you and to assist us in better serving you; and
• To conduct Wave’s risk management process.

B. Accounts

1. Settlement Account

You authorize the Bank to hold, receive, and disburse funds on your behalf. You authorize Wave to instruct the Bank on the manner in which your card transaction settlement funds should be disbursed and the timing of such disbursements, all in accordance with this Agreement. Any funds held by us on your behalf will be referred to as your “Settlement Account,” but such funds are held by us and commingled with other Merchants' funds in one or more pooled accounts. These pooled accounts are established in Wave’s name for this purpose. Creation and maintenance of pooled accounts are done at our sole discretion. Wave has no right, title or interest in any account in which Merchant funds are held.

Funds associated with your Settlement Account will be held by us, separate from any account used for our corporate funds. We will not and cannot use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds held by Wave in association with your Settlement Account. As consideration for using the Service, you irrevocably assign to us or the Bank all rights and legal interests to any interest and/or other earnings or benefits that may accrue or are attributable to Wave holding your funds in the Settlement Account or Reserve (defined below).

You have no right to direct the funds in the Settlement Account, through communications or directions to the Bank, and you may not assign any interest or grant any security interest or lien in the Settlement Account except as provided in this Agreement.

Your authorizations set forth herein will remain in full force and effect until your Wave Payments Account is closed or terminated.

2. Designated Merchant Bank Account

You are required to maintain and provide information regarding a valid Canadian bank account (“Designated Merchant Bank Account”), and you must authorize us and the Bank to debit or credit the Designated Merchant Bank Account for amounts owed to you or by you in connection with the Service. We and the Bank have the right to deduct funds from the Designated Merchant Bank Account to cover any amounts owed by you to either of us.

You also have the option to request to receive funds from card transactions by "Instant Payout." To receive funds through Instant Payout, you must provide Wave with a debit card. Funds will be transferred to you as set forth in Section D.4 to the bank account associated with that debit card (the "Instant Payout Account"). The Instant Payout Account may or may not be the same as the Designated Merchant Bank Account. We and the Bank have the right to deduct funds from the Instant Payout Account via EFT or through charging the debit card to cover any amounts owed by you to either of us. See Section D.7 for more information.

3. Reserve

At any time and from time to time, we or the Bank may temporarily suspend or delay payments to you and/or designate an amount of funds that you must maintain in your Settlement Account (“Reserve”) to secure the performance of your payment obligations under this Agreement. We or the Bank may require a Reserve for any reason, including high chargeback risk or indications of performance problems related to your use of the Service.

The Reserve will be in an amount as reasonably determined by us or the Bank to cover anticipated chargebacks on a Network and returns or disputes on the electronic funds transfer (EFT) network, returns, unshipped merchandise and/or unfulfilled services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by Wave or the Bank, in their sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you, or otherwise as Wave or its processor or the Bank may determine or require.

If you do not have sufficient funds in your Reserve, we or the Bank may fund the Reserve from any funding source associated with your Settlement Account, including the Designated Merchant Bank Account or any amount Bank owes you, including but not limited to any funds:

• Credited to you or your Settlement Account, Designated Merchant Bank Account or any other funding source associated with your Settlement Account;
• Due to you under this Agreement; or
• Available in any account, or other payment instrument registered with us.
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You agree to provide the Bank with a completed agreement for pre-authorized debits, in the form requested by the Bank.

In the section headed “Pre-Authorized Debit Agreement” (below), you provide Wave with your authorization for Wave to initiate pre-authorized debits from the Designated Merchant Bank Account.

You grant us a security interest in the funds in your Settlement Account, including any Reserve, and those funds will be available to Wave and the Bank for the amounts you owe to us. You agree to execute any additional documentation required for us to perfect our security interest in any funds in your Settlement Account or the Reserve. This security interest survives for as long as there are funds in your Settlement Account or Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by applicable Law. You irrevocably assign to us or the Bank all rights and legal interests to any interest or other earnings that accrue or are attributable to your Reserve.

4. Discounts and Surcharges

In Canada, the Networks’ Operating Regulations permit merchants to provide discounts for different methods of payments, and may provide differential discounts among different payment card networks. Charging your customers a surcharge to pay with a credit card must be done in compliance with applicable Law and the Operating Regulations of each Network.

5. Change in Fees

Subject to the terms of this Agreement, we reserve the right to change our Fees at any time by notifying you at least ninety (90) days in advance of the change. By continuing to use the Service after being notified of a change, you consent to the change in Fees. To withdraw your consent, you must discontinue using the Service. All Fees, charges, and payments collected or paid through the Service are in Canadian dollars.

6. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Service (“Taxes”). You are solely responsible for collecting, withholding, reporting and remitting correct any Taxes to the appropriate tax authority. Wave is not obligated to, nor will we determine whether taxes apply, or calculate, collect, report or remit any Taxes to any tax authority arising from your use of the Service.

Wave or the Bank will report payments and other information related to this Service to regulatory or government authorities as required by applicable Law.

C. Use Restrictions

1. Restricted Use

You will not, and will use commercially reasonable efforts to make sure a third party engaged by you or acting on your behalf does not:

• Act as a money services business, money transmitter, payment intermediary, aggregator or service bureau or otherwise resell our services on behalf of any third party;
• Use the Service to handle, process or transmit funds for any third party;
• Abuse the payment system or violate the Operating Regulations, in the reasonable opinion of the Networks or Wave;
• Transfer funds between bank accounts held in the same name;
• Use the Service to process cash advances;
• Sell, resell, or lease (or the functional equivalent of sell or lease), the Service to a third party;
• Attempt to create a substitute or similar service through the use of, or access to, the Service;
• Use the Wave Payments to export or re-export the Service or content thereon or any portion thereof, in violation of the export control Laws and regulations of Canada or any other country; or
• Use the Service, or a component of the Service, in a manner not authorised by Wave or outside of the intended use of the Service.

2. Additional Restrictions

In addition, you agree not to, and not to allow third-parties, agents, affiliates or designees to, access or use the Service:

• Except as required in connection with the Wave Payments Service, to post, store, e-mail, upload, or scan to the Services or otherwise provide to Wave, either directly or indirectly, confidential information, including, without limitation, any third party’s payment information, or your or any third party’s social insurance, or alternate government-issued identity numbers, non-public phone numbers, or non-public email addresses. This prohibition includes but is not limited to the posting or storing of images or scans containing such prohibited information;
• To post, transmit, or distribute content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others;
• To violate, or encourage the violation of, the legal rights of others;
• For any illegal, unlawful, invasive, infringing, defamatory or fraudulent purpose;
• To collect, or attempt to collect, personal information about users or third parties without their consent, or use such information except as necessary to use the Service;
• To send unsolicited offers, advertisements, proposals, or junk mail or spam to others;
• To, intentionally or otherwise, distribute viruses, worms, Trojan horses, corrupted files, hoaxes or other items of a destructive or deceptive nature;
• To interfere with the use of the Service, or the equipment used to provide the Service, by customers, or other authorised users;
• To alter, disable, interfere with or circumvent any aspect of the Service;
• To violate the security of Wave Payments or attempt to gain unauthorized access to the Service, or Wave's computer systems or networks connected to any server associated with Wave; or
• To attempt to reverse engineer Wave Payments or any component thereof.

3. Unauthorized or Illegal Use

You will use commercially reasonable efforts to prevent unauthorized use of the Service and to immediately disable and terminate any unauthorized use. You are responsible for all use of your Wave Payments Account and your User ID and other access information (ex. passwords, if any). You will promptly notify Wave of any unauthorized use of, or access to, the Service of which you become aware.

Wave may suspend, disable, or change your Wave Payments Account or access credentials for the Service, such as any user ID and password, at any time if Wave believes that your credentials have been compromised, that you or someone using your Wave Payments Account is a threat to the integrity or security of the Service, or if Wave has another reasonable basis for doing so.

Wave may instruct the Bank to not authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of this Agreement, or exposes you, other Wave Payments users, our processor, or us to potential harm. Harm includes, but is not limited to, any risk of loss or damage, fraud and other criminal acts.

If we have reason to suspect unauthorized, illegal, or criminal activity, we will share information about you, your Wave Payments Account, your Settlement Account and any of your transactions with law enforcement.

4. Prohibited Payment Activities

You agree that you will not, and will use commercially reasonable efforts to make sure that a third party does not, use the Service in connection with the following activities, items or services:

Financial and Professional Services
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• ‍Debt Collection & Credit Services. Debt collection, consolidation or reduction services; mortgage consulting; credit counseling or credit repair services; lending or lending instruments; crowdfunding.\
• Investment & Legal Services. Securities brokers; commodity or equity trading; real estate opportunities; bailiffs and bail bonds; bankruptcy lawyers; law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm.
• Money Services. Money services businesses; financial services, such as money transfers, sales of foreign currency, wire transfers, money orders, check cashing, cash advances, bill payments, loan payments, or sales of prepaid cards or mobile minutes.
• Virtual Currency or Stored Value. Virtual currency or credits that can be monetized, resold, or converted to physical or digital products and services or otherwise exit the virtual world (ex: Bitcoin).

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Regulated, Illegal Products and Services, IP Infringement
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• Telecommunications. Prepaid local long-distance telephone calls and faxes; prepaid phone services; calling cards; monthly billing of telephone calls; computer network/Information services; cyberlocker; electronic bulletin board; email providers; Internet access; cable; satellite; pay television and radio services; subscription television programming or radio programming.
• Adult Content and Services. Pornography and other adult content (including literature, imagery and other media); any sexually-related services such as prostitution, escorts, massage parlors, pay-per-view and adult live chat; mail order brides.
• Counterfeit or Unauthorized Goods. Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported.
• Intellectual Property / Proprietary Rights Infringement. Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without authorization from the rights holder; any product or service that infringes or facilitates infringement upon the copyright, patent, trademark or trade secrets of any third party.
• Gambling. Internet gaming; lotteries; contests; sweepstakes; games of chance; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; memberships on gambling-related sites.
• Regulated Products and Services. Cannabis & marijuana dispensaries and related products and services including cannabidiol (CBD) and hemp; sale of tobacco, e-cigarettes, e-liquids, bongs, vaporizers and hookahs; age-restricted products or services; internet pharmacies and script dispensers; firearms, weapons and ammunition; gunpowder, explosives and fireworks; toxic, flammable, and radioactive materials.
• Substances Designed to Mimic Illegal Drugs. Sale of a legal substance that provides the same effect as an illegal drug (ex: salvia, kratom).

Deceptive, Unfair, or Predatory Practices
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• Get Rich Quick Schemes. Investment opportunities, or other services that promise high rewards.
• No-Value-Added Services. Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; businesses that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers.

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Products or Services that are Otherwise Prohibited
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• Aggregation. Engaging in any form of licensed or unlicensed aggregation of funds owed to third parties, factoring, or other activities intended to obfuscate the origin of funds.
• Court Ordered Payments. Alimony, child support, or other court-ordered payments.
• Delayed Delivery. Businesses that engage in delayed delivery where the goods or services provided to the cardholder are not delivered or fulfilled within three (3) months of when the payment is processed.
• Hate & Violence. Hate, violent acts or activities, discrimination or the financial exploitation of a crime.
• High Risk Businesses. Online computer technical support; direct marketing of subscription offers; outbound telemarketing, infomercial businesses; door-to-door sales; telecommunications equipment and telephone sales; rebates and upsell programs; drop shipping; forwarding brokers; negative response marketing; credit and identity theft protection; pawn shops; buyers or membership clubs; psychic services; discount coupon businesses; discount medical or dental insurance plans; any businesses that we believe poses elevated financial risk, legal liability, or violates card network rules.
• Multi-Level Marketing. Pyramid schemes, network marketing, and referral marketing programs.
• Pseudo Pharmaceuticals. Pharmaceuticals, nutraceuticals and other products that make health claims that have not been approved or verified by the applicable regulatory body.
• Real Estate Services. Distressed property sales and marketing; real estate flipping; timeshares including resales and related marketing.
• Social Media Activity. Sale of Twitter followers, Facebook likes, YouTube views, and other forms of social media activity.
• Tobacco. CNP tobacco, e-Cigarettes, and “Vape” supplies and accessories.
• Travel Related Services. Travel agencies; tour operators; travel reservation services and clubs; airlines; cruises and timeshares.

D. Transactions

1. Accepted Forms Of Payment

Payment Cards. Wave supports most domestic credit, debit, prepaid or gift cards bearing Visa, Mastercard, or American Express trademarks. In addition, Wave supports most international cards bearing these trademarks. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive authorization from the applicable issuer. You may choose not to accept cards issued by a particular Network in accordance with the Operating Regulations.

EFT Bank Payments. Wave permits you to accept an EFT payment from a Customer’s bank account through the Service. You may not transmit to us information related to EFT Entries other than by your Customer authorizing payment by use of the Service. The EFT network is controlled and managed by Payments Canada and member banks. When submitting payments over the EFT network, you are required to and agree to comply with the Operating Regulations for use of the EFT Network which are available on the Payments Canada website. Capitalized, but otherwise undefined terms in this section will have the meanings set forth in Rule H1 of the Canadian Payments Association.

You understand and accept your role as the originator of EFT payments and you understand that your Customers' consent is required to debit their bank account and initiate a payment over the EFT network. This consent must be in a form and manner that complies with Rule H1 and the Operating Regulations and the required documentation for EFT transactions. You may not send or receive, or attempt to send or receive, funds to or from a person, entity or state where such transactions violate Canadian Law.

You authorize us and the Bank to originate EFT transactions on your behalf to your Customer’s accounts. You acknowledge that the origination, receipt, return, adjustment, correction, cancellation, amendment and transmission of a PAD, must comply with applicable laws, rules, and regulations, including Rule H1 and the Operating Regulations. You warrant to us everything that we must warrant as a PAD originator, and you agree to hold harmless, indemnify and defend Wave and the Bank for any losses or liabilities we or the Bank may suffer or incur as a result of or in connection with your breach of such warranties and your PAD transactions, including legal fees.

You understand that you are responsible for:

• Abiding by the terms of the Business Pre-Authorized Debit Agreement established with your Customers (as per the Wave Payments Customers Terms of Service) and obtaining valid authorization for debits from your Customers in a form and manner that complies with Rule H1 and Operating Regulations;
• Retaining, in accordance with applicable law and Rule H1 and Operating Regulations and providing upon request to us and Bank, copies of debit authorizations you are required to obtain from your Customers and documentation of debits and related transmissions;
• Requesting any reversal, correction, or change to a debit before we submit the debit to the Bank;
• Responding to and executing customer cancellation or revocation requests;
• Providing a written statement to customers in the event that you terminate the Business Pre-Authorized Debit Agreement; and
• Complying with any other rules or requirements under Rule H1.

3. Payment Authorization

You authorize us to hold, receive, disburse and settle funds on your behalf. Your authorization permits the Bank to generate a paper draft or electronic funds transfer to process each payment transaction that you or your Customer may authorize. Subject to this Agreement, you also authorize the Bank to debit or credit any payment card or other payment method Wave accepts.

You authorize us to initiate electronic funds transfers to each Designated Merchant Bank Account, and to initiate adjustments for any transactions credited or debited in error.

Your authorization will remain in full force and effect until you notify us that you revoke it by contacting customer support, terminating the Service or closing your Wave Payments Account. You understand that Wave requires a reasonable time to act on your revocation, generally not to exceed five (5) business days.

Payments by the Bank to you for payment transactions (“Bank Payments”) are processed through the Electronic Funds Transfer (EFT) network and require up to five (5) business days to clear and be deposited into your Settlement Account (unless you are eligible for Instant Payout). The Bank will process Bank Payments and we will deposit funds to your Designated Merchant Bank Account two (2) business days after Bank Payments are verified. This means Bank Payments could be deposited into your Designated Merchant Bank Account as early as two (2) business days and as late as seven (7) business days.In some cases, we may deposit funds to your Designated Merchant Bank Account before the Bank Payment is verified. If your Bank Payment is settled to your Designated Merchant Bank Account before it is verified, the Bank Payment is at risk of returning after you receive the funds. If you are shipping products, you may choose to wait until the payment is verified before fulfilling your customer’s order. Typically, Bank Payments are considered to be verified if a return is not received within five (5) business days of the original sale, but we cannot guarantee that a return will not be received at a later date.

4. Payout Schedule

Unless you are eligible for Instant Payout, funds will be transferred to your Designated Merchant Bank Account according to the transfer schedule displayed in the Service. Regardless of the transfer schedule and mechanism, we will transfer funds to the Designated Merchant Bank Account no more than thirty (30) days after funds settle to the Bank, subject to any Reserve imposed, as described in the Reserve section of this Agreement and any set-off rights we or the Bank may have against such funds. Neither the Bank, Wave, nor the Customer, will have any liability to you for funds so refunded.

Settlements by us to your Designated Merchant Bank Account may be limited or delayed based on your perceived risk and history with Wave. We will consider a variety of factors in making this decision and will make this determination at our sole discretion. All settlements to Merchants are subject to review for risk and compliance purposes and can be delayed or postponed at Wave’s sole discretion.

If you select Instant Payout for payment of funds settled to your Settlement Account, then we will transfer funds to your Instant Payout Account.

Should Wave need to conduct an investigation or resolve any pending dispute related to your Settlement Account or the Service provided to you, Wave or the Bank may defer payout or restrict access to your funds for the entire time it takes us to do so. The Bank may also defer payout or restrict access to your funds as required by Law or court order, or if otherwise requested by law enforcement or governmental entity.

5. Transaction Limits

For receiving payments, the following limits apply:

• $1,000,000 per transaction
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These limits may be changed and additional limits may be added at any time. Your limits may also be adjusted based on history and other factors. We, in our sole discretion, may impose limits on the dollar amount, number and/or the frequency of payments that you can receive using the Service. We may decline any payment exceeding these limits.

6. Instant Payouts

Merchant Eligibility. If you are using Wave Payments, Wave enables Instant Payouts automatically when you become eligible. Wave determines eligibility based on a series of criteria, and no additional signup is required. When you become eligible for Instant Payouts, Wave will notify you by email through the email address registered with your Wave account.

Payment Eligibility. Instant Payout is available for invoices paid by credit card and bank payment. Even if you are eligible for Instant Payouts, not all invoice payments will qualify. Wave automatically determines eligibility based on a number of factors. If you receive a payment and do not see an available Instant Payout balance, the amount will be paid out following the normal processing time. Based on eligibility, some bank payments may be delayed and subject to normal processing times which means you will not have access to the Instant Payout balance until the funds clear. 

Fees. A 1% Instant Payout fee is applied to the amount you withdraw from your available balance. The Instant Payout fee is in addition to other Wave Payments processing fees. There is a minimum fee of $1.
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Setup. To set up Instant Payouts, you must link an account by entering your debit card details. This debit card does not need to be linked to the Designated Merchant Bank Account you use for Wave Payments. You can update your debit card details at any time. The debit card number is required because Wave uses card networks to push funds to your bank account instantly. This is different from how regular payouts are sent to your Designated Merchant Bank Account using your account number. Not all debit cards are supported.

Processing Payouts. The minimum withdrawal amount is $25. You need to have a minimum balance of $25 available to you. 

Most banks support instant funding and you can typically expect to see funds in your bank account within a few seconds, up to thirty (30) minutes. Deposit times may vary due to processing cutoff times or third party delays. 

Every day at 8 p.m. Eastern, Wave processes all payments received in the last 24 hours. Once payments are processed, if they qualify for instant payouts, you will have until 3 p.m. Eastern the following business day to pay out your available balance. The only exception would be if you receive a payment any time after 8 p.m. Eastern on a Thursday. Since payments are not processed on weekends, you will have until 8 p.m. Eastern on Sunday to accept the Instant Payout balance available to you.

If you choose not to withdraw your available Instant Payout balance, or if the balance is no longer available, it will be paid out following the standard payment processing timelines.

Scheduling Payouts. You have the option to set your Instant Payouts on an automated acceptance schedule. If you have received payments from your customers that contribute to your available Instant Payout balance, Wave will send your money to you automatically at your pre-set scheduled hour. You can choose limits to set the maximum that is paid out on a daily basis. 

Scheduling your Instant Payouts doesn’t take away from your ability to manually accept them. If you have an available balance and need the funds right away but you haven’t reached the scheduled time yet, you can still manually accept the Instant Payout to receive your money.

E. Roles and Responsibilities

1. Wave’s Role

Wave provides data processing services for Merchants. Wave is a Payment Service Provider (“PSP”), not a bank. 

As a PSP, Wave collects, analyzes and relays information generated in connection with payments between Customers and Merchants. You authorize Wave to provide this information to the Bank in order for the Bank to facilitate payments from Customers to you through the Networks. As a result, the Bank - and not Wave - actually conducts the settlement of payment transactions to you. Wave does not at any point hold, own or control funds in connection with the Service, nor does Wave transmit money or monetary value. In connection with the Service, Wave does not actually or constructively receive, take possession of or hold any money or monetary value for transmission, and does not advertise, solicit or hold itself out as receiving money for transmission. Wave is the party with sole responsibility for conducting the settlement of funds between Customers and Merchants.

In order to act as a PSP, Wave must enter into agreements with the Networks, processors and the Bank. You are not a third-party beneficiary of these agreements. Each of the Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of these third parties may require a direct agreement with you. If you are required to enter into such an agreement and decline to do so, we may suspend or terminate your Account.

You agree to be bound by the Merchant Services Agreement set forth in Exhibit A to this Agreement if it applies to you. The Merchant Services Agreement applies to you if, for example, you receive more than $1,000,000 in Visa payments or $1,000,000 in Mastercard payments in a twelve (12) month period. By accepting this Agreement (by "click through" or otherwise), you also agree to the terms and conditions of the Merchant Services Agreement, which constitutes a legally binding contract between you, on the one hand, and, if applicable, Worldpay, LLC and its designated member bank.

2. Network Rules and Regulations

You will comply with the Networks’ regulations and rules applicable to merchants. The Networks make excerpts of their respective Operating Regulations available on their websites (including visa.ca, mastercard.ca, americanexpress.ca/merchantguide and payments.ca).

3. Customer Service Provided by Merchants

You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Customer, payment cancellations, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from Wave. If your Customer’s payment is rejected or returned for any reason, Wave will not be liable for any fees, including a nonsufficient funds (“NSF”) fee, that you may choose to charge your Customer. Wave does not permit a Merchant to charge a Customer an electronic NSF fee through the Service. You will cooperate with Wave to assure that Customers have access to clear customer service information, including an active customer service email address or telephone number.

4. Refunds Provided by Merchants

You agree to process returns of, and provide refunds and adjustments for goods or services through your Wave Payments Account in accordance with this Agreement and the Operating Regulations.

The Operating Regulations require that you:

• Maintain a fair return, cancellation or adjustment policy;
• Disclose your return or cancellation policy to Customers at the time of purchase;
• Not give cash refunds to a Customer in connection with a payment card sale, unless required by Law; and
• Not accept cash or any other item of value for preparing a payment card sale refund.
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The amount of the refund or adjustment must include all taxes required to be refunded and must not exceed the original sales total except for any reimbursement to the customer to cover shipping costs for the return of merchandise.

You may process refunds and adjustments through the Service at any time. These refunds and adjustments are subject to this Agreement and the Operating Regulations. If your Settlement Account balance is insufficient to cover the refund, you authorize Wave to withdraw sufficient funds from your Designated Merchant Bank Account to credit back to your Customer’s account.

Your refund policies must be the same for all payment methods. When processing a full refund, Wave will refund the Fees for the transaction so your Customer receives the full purchase amount. If your refund policy prohibits returns or your Customer is dissatisfied with your refund policy, the Customer may chargeback the payment.

5. Merchant’s Liability for Chargebacks and Returns

You are liable for all chargebacks and returns, whether or not the chargeback or return complies with the Operating Regulations. The amount of a payment may be charged back to you and deducted from your Settlement Account or Designated Merchant Bank if:

• It is disputed by a Customer;
• It is reversed for any reason;
• It was not authorized or we have any reason to believe that the transaction was not authorized; or
• It is unlawful, suspicious, or in violation of the terms of this Agreement.

6. How Wave Handles Chargebacks and Returns

In the event of a disputed transaction, Wave will withdraw funds from your Settlement Account or Designated Merchant Bank Account for the amount of any chargeback or return and any associated Fees, fines, or penalties assessed by the Bank, our processor or the Networks. If you do not have sufficient funds in your Settlement Account or Designated Merchant Bank Account, we will have the remedies set forth in the “Our Set-off and Collection Rights” section of this Agreement. If you have pending chargebacks or returns, we may delay or reduce payouts to you.

A fee of $15 will be assessed for each chargeback received.
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If Wave reasonably believes that a chargeback or return is likely with respect to any transaction, we may withhold the amount of the potential chargeback or return from payments otherwise due to you under this Agreement until such time that:

• A chargeback or return is assessed due to a Customer’s complaint, in which case the Bank will retain and refund the funds;
• The period of time under applicable Law or Operating Regulation by which the Customer may dispute that the transaction has expired; or
• We determine that a chargeback or return on the transaction will not occur.
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If we determine that you are incurring an excessive amount of Chargebacks or returns, Wave or the Bank may establish controls or conditions governing your Settlement Account and Service, including without limitation, by

• Assessing additional Fees;
• Creating a Reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees;
• Delaying payouts; and
• Terminating or suspending the Service or closing your Wave Payments Account.
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We may be required to report your name to one or more of the Networks if you experience excessive chargebacks or excessive returns, and you waive any claims you may have as a result of such reporting. You will assist us when requested, at your expense, in the investigation of any transactions you have processed through the Service. To that end, you permit us to share information about a chargeback or return with the Customer, the Customer's financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We may request necessary information from you to contest the chargeback or return. If the chargeback or return is contested successfully, we will release the reserved funds to you. If a dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the chargeback or return, Wave may recover the chargeback or returned amount and any associated Fees as described in this Agreement. Your failure to assist us in a timely manner when investigating a transaction, including providing us with the necessary documentation within seven (7) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating such disputes.

7. Our Set-off and Collection Rights

To the extent permitted by Law, we or the Bank may set off against any balances in your Settlement Account and your Designated Merchant Bank Account, or against any amounts due to you, for any obligation you owe us under this Agreement, including without limitation any chargebacks or returns. All Fees are charged at the time of transaction processing and are first deducted from the transferred or collected funds and thereafter from your Settlement Account and then from your Designated Merchant Bank Account. If you do not have sufficient funds in such accounts, we or the Bank may collect from any funding source associated with your Settlement Account, from any other account under your control, or from any funding source associated with such other account, including but not limited to any funds:

• Deposited by you;
• Due to you under this Agreement; or
• Available in your bank account, or other payment instrument registered with the Bank.
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Your failure to pay, in full, amounts that you owe us on demand will be a breach of this Agreement and may result in account suspension, termination, or restriction of your access to Wave’s Services.

Except as otherwise provided in the Arbitration Provision, you will be liable for all costs and expenses incurred by or on behalf of us in association with collection in addition to the amount owed, including without limitation legal fees and expenses and late payment fees. 

At its discretion, Wave may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone to the current contact information that Wave has on file with respect to you. Such communication may be made by Wave or by anyone on its behalf, including but not limited to a third-party collection agent.

a. What happens if you owe us money?

In the event of a chargeback or payment failure, Wave will notify you by email and attempt to debit your bank account for the amount owed. If this debit fails, we will send you an invoice for the amount owed by email. If you do not make a payment within fourteen (14) business days, Wave will issue a Letter of Demand. If payment is not received within four (4) business days of the date the letter was issued, your Account will be sent to a third-party collections agency. 

At our discretion, we may allow for the outstanding balance to be paid in installments (“Payment Plan”). A Payment Plan is an arrangement you make with Wave where you agree to repay the balance owed through a series of payments over the agreed upon payback period (“Term”). See “Payment Plan Agreement” below for more details.

b. Payment Plan Agreement

If Wave allows for a Payment Plan to be agreed upon and you agree to repay your debt in regulation installments, a Payment Plan Agreement must be entered into between Wave (the “Creditor”) and you (the “Debtor”).

• Plan Details. Wave will provide you with written confirmation of the amount owed (“Principal Balance”), the initial payment amount payable under the Payment Plan, the monthly payment amount payable under the Payment Plan (“Monthly Payment” and together with the initial payment amount, the “Payments), the start date, monthly due date, fees incurred, and the number of Payments required to pay the debt (not including the initial payment). You agree to repay the debt as outlined in the Payment Plan Agreement. You cannot make changes to your Payment Plan once it has been established, unless authorized in writing by Wave.
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• Payment Method. Wave will send you an invoice for the Payments by email. You may choose to make payment by credit card or bank payment. Payments received will be applied first to any outstanding fees (if applicable) and then to the Principal Balance. To avoid late payment fees, we recommend that you set up automatic payments, ensure your payment method is up to date, and monitor your email for updates from Wave.
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• Payment Schedule. We offer Payment Plans on a monthly schedule over a term of no more than six (6) months, unless otherwise agreed by us in writing. An initial payment of twenty percent (20%) of the Principal Balance is required upon execution of the Payment Plan Agreement. The remaining balance will be paid in equal monthly installments. You agree to pay the Payments and any fees (including without limitation, late payment fees) incurred until your debt has been paid in full.
  
  The amount of your Monthly Payment will be determined by taking the Principal Balance, adding any applicable fees, subtracting the initial payment of 20%, and dividing the total of these amounts by the number of months in the Term of the Payment Plan Agreement. The last Monthly Payment might be less than the other Monthly Payments. The total payment amount of each Monthly Payment may change if late payment fees, as described below, are incurred. 
  
  Wave may choose to send payment reminder emails in its sole discretion, however, you remain fully responsible for making all payments on time.
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• Payment Grace Period. Wave offers a grace period of up to three (3) business days beyond any Payment due date to accommodate for unforeseen delays. During this period, late payment fees will not be assessed against you.
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• ‍Late Payments. If any Monthly Payment is not received by the end of the third business day after the applicable due date, such Payment is considered late. Unless an extension has been granted by Wave in writing, you will be charged a late payment fee. On the fourth business day, Wave will send you an updated invoice with a late payment fee added to the total balance owed. Late payment fees will be assessed on a monthly basis. You agree to pay the late payment fee(s) as set out below.
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• If a Payment is not received by the end of the seventh business day after the applicable due date, your Wave Payments Account will be suspended on the eighth business day. If two (2) or more Payments are missed by you, Wave may, in its sole discretion, declare the entire remaining balance immediately due and payable.
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• Termination. Wave reserves the right, in its sole discretion, to terminate the Payment Plan at any time upon written notice to you. Upon termination, the full outstanding balance of all amounts will become due and payable by you immediately.
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• Questions. If you have any questions regarding Payment Plans, please respond to the email sent to you by Wave’s Collections Team or reach out to collections@waveapps.com.

8. Complaint Handling Process

1. For any issues or concerns, please contact our Customer Support Team first.
2. If, after contacting Customer Support your issue is not resolved, you may ask for a Lead/Manager to review your situation.
3. If you have worked with a Lead/Manager, remain unsatisfied, and have a complaint with respect to the Code of Conduct for the Payment Card Industry in Canada, please review our FCAC complaint policy here.

9. Dormant Accounts

If there is no activity in your Settlement Account (including access or payment transactions) and we and the Bank have been unable to transfer the funds to your Designated Merchant Bank Account for the period of time set forth in the applicable unclaimed property laws, and you have a credit, we may notify you by sending an email to your registered email address. We may also notify you by regular mail. We may give you the option of keeping your Settlement Account open, requesting a transfer to a Designated Merchant Bank Account, or requesting a check. If you do not respond to our notice within the time period specified in the notice, we may close your Settlement Account and the Bank will deal with unclaimed balances in accordance with applicable Law.

F. Termination

1. Your Right to Terminate

You may terminate the Service at any time by either: 1) Contacting customer support and requesting that we disable your account; or 2) Turning off the ability to accept payments in the "Settings" section of your account. If you elect to turn off the ability to accept payments in your account, you may turn on the ability to accept payments in the "Settings" section of your account at any time. Your termination of the Service will automatically result in the termination of this Agreement. The Arbitration Provision will survive the termination of this Agreement.

2. Our Right to Terminate

Upon notice to you, we may terminate this Agreement and terminate the Service for any reason with or without cause. We may choose to terminate the Service without terminating your other Wave services. We may also suspend your access to the Service and we or the Bank may suspend access to your Settlement Account (including the funds in your Wave Payments Account) if you:

• Have violated the terms of Wave’s policy or this Agreement;
• Have been reasonably deemed to pose an unacceptable credit or fraud risk to us, or;
• Have provided any false, incomplete, inaccurate, or misleading information or have otherwise engaged in fraudulent or illegal conduct.

3. Termination

If your Wave Payments Account is terminated for any reason, you agree:

• To continue to be bound by this Agreement, including the Arbitration Provision;
• To immediately stop using the Service;
• That the license provided under this Agreement will end;
• That we reserve the right (but have no obligation other than as described in our Privacy Policy) to delete all of your information and Wave Payments Account data stored on our servers; and
• That Wave will not be liable to you or any third party for termination of access to the Service, deletion of your information or Wave Payments Account data, or export of your information or Wave Payments Account data.

4. Effect of Termination

You may cease using the Service at any time. Any funds held for you by us or the Bank at the time of termination of the Service, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Wave Payments Account as a means of evading your payout schedule).

If an investigation is pending at the time you close your Wave Payments Account, we or the Bank may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we or the Bank will release those funds to you.

We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement. The Arbitration Provision will survive the termination of this Agreement.

G. Cardholder Data Security

If you handle, transmit, or store any Cardholder Data in connection with your use of the Service or the Wave API, you agree to comply at all times with the Payment Card Industry Data Security Standards (“PCI DSS”). Further, you agree to certify such compliance and provide documentation in accordance with the Operating Regulations, or when asked by Wave to do so. You also agree that you will use only PCI-compliant service providers in connection with the storage, processing, or transmission of Cardholder Data.

You are fully responsible for the security of data (including but not limited to Cardholder Data) on your website or otherwise in your possession or control. You agree to comply with all applicable Laws and rules in connection with your collection, security and dissemination of any personal, financial, or transaction information.

You must receive the express and valid consent of your Customer as required under applicable privacy law, prior to retaining, tracking, monitoring, storing, disclosing, or otherwise using Cardholder Data other than for the transaction for which it was given, unless otherwise required by applicable law.

H. Representations and Warranties

1. Mutual

Each party hereby represents, warrants and covenants to the other party that:

• Its obligations under this Agreement are valid, binding and enforceable in accordance with the terms and conditions set forth herein;
• It has the full legal right and authority to enter into and implement this Agreement in all respects, and the execution and performance of this Agreement does not violate, or conflict with any other contract or agreement to which it is a party, or by which it is bound, and that the person accepting the terms of this Agreement has complete authority to bind it to this Agreement; and
• It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with corporate power and authority adequate for executing, delivering, and performing its obligations under this Agreement.

2. Merchant Representations and Warranties

You represent and warrant to us that:

1. You are eligible to register and use the Service;
2. The name provided by you when you registered for the Service is your name, or the business name, under which you sell goods and services;
3. Any payment transaction submitted by you will represent a bona fide sale by you;
4. Any payment transactions submitted by you will accurately describe the goods and/or services sold and delivered to a customer;
5. You will fulfill all of your obligations to each Customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Customer;
6. You and all transactions initiated by you will comply with all federal, provincial, and local Law applicable to your business, including any applicable tax laws and regulations and the Operating Regulations of the applicable Network;
7. Except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity;
8. You will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service;
9. You have obtained all necessary consents from each Customer with respect to your and our use (as permitted herein or by applicable Law) of any contact and identifying particulars relating to name, location, address, email, phone, bank accounts, corporate officers, business names, billing descriptors and customer contact information (“Customer Information”) and that: (i) such Customer Information is true and correct; and (ii) that you may be contacted by Customers at the address(es) given for such purpose;
10. You will keep such Customer Information updated and correct during the course of this Agreement; and
11. Your use of the Service will be in compliance with this Agreement and applicable Law.

I. Disclaimers

Disclaimer of Warranties

Wave makes no representations or guarantees regarding Merchants or Customers utilizing our Service. Use of our Service in no way represents any endorsement by Wave or by any Network, of a Merchant’s or Customer’s existence, legitimacy, policies or practices. Wave does not have control of, or liability for, goods or services that are paid for with the Service.

Wave makes no representations that the Service is appropriate or available for use outside Canada. Those who access or use the Service from other jurisdictions do so of their own volition and are entirely responsible for compliance with all applicable Laws of Canada, including but not limited to export and import regulations.

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WAVE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WAVE, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS AND THE BANK (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WAVE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WAVE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

J. Limitation of Liabilities and Damages

1. Limitation of Liabilities

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAVE, ITS PROCESSORS, THE NETWORKS AND THE BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WAVE, ITS PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

2. Exclusion of Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WAVE, ITS PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, REVENUE, BUSINESS OPPORTUNITIES, INCONVENIENCE, AND OTHER INTANGIBLE LOSSES OR ANY OTHER FORESEEABLE OR UNFORESEEABLE LOSS, THAT RESULT DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT OR FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF DAMAGES. UNDER NO CIRCUMSTANCES WILL WAVE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

K. Indemnification

You will indemnify, defend and hold us and our processors and partners harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable lawyers’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to:

• Any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the Operating Regulations;
• Your wrongful or improper use of the Service;
• Any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you);
• Your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights;
• Your violation of any law, rule or regulation of the Canada or any other country; or
• Any other party's access and/or use of the Service with your unique username, password or other appropriate security code.

L. Miscellaneous

1. Governing Law

Except as otherwise provided in the Arbitration Provision, this Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the Laws of the Province of Ontario and the federal Laws of Canada applicable therein as applied to agreements entered into and to be performed entirely within Ontario, without regard to its choice of Law or conflicts of Law principles that would require application of the Law of a different jurisdiction.

2. Entire Agreement

Except as otherwise provided in the Arbitration Provision, this Wave Payments Terms of Service, including the Wave TOU, is the entire and exclusive agreement between parties with respect to Wave Payments, and it supersedes all previous communications, representations, or agreements, either oral or written, between you and us.

3. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Wave without restriction or consent.

4. Amendment of Agreement

Except as otherwise provided in the Arbitration Provision, we reserve the right to modify or add to this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that we in our sole discretion deem to be reasonable in the circumstances, including but not limited to notice on our website or any other website maintained or owned by us and identified to you. Any use of the Service after our publication of any such changes shall constitute your acceptance of the then-current version of this Agreement. You may not modify or amend this Agreement unless we agree to such modification or amendment in a written instrument signed by a duly authorized representative of Wave. For the purposes of this section, a written instrument shall expressly exclude electronic communications such as email and electronic notices including facsimiles.

5. Survival

Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement or that expressly or by its nature extends beyond the termination of the Service shall survive and remain in effect in accordance with its terms upon the termination of this Agreement. The Arbitration Provision will survive the termination of this Agreement.

6. Severability

Except as otherwise provided in the Arbitration Provision, all provisions of this Agreement, notwithstanding the manner in which they have been grouped together or linked, are severable from each other. If any of these terms should be determined to be unenforceable, the remaining terms of this Agreement shall survive and remain in full force and effect and continue to be binding and enforceable

7. Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver shall only be effective in writing executed by the party granting the waiver. Other than as expressly stated herein, any remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

8. Force Majeure

Wave will be under no liability to the Merchant for, and is excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its control, including, but not limited to, governmental actions, fire, work stoppages, shortages, war, terrorism, civil disturbances, transportation problems, interruptions of power or communications, Internet service provider or hosting facility failures or delays involving third party hardware or software systems, denial of service attacks, acts of third parties outside of Wave's control, natural disasters or significant changes in the ability of Wave to offer the Service in terms of the scope and/or price set out herein as a result of changes in law, or in policy of Networks, and/or Bank, and/or governmental authorities.

9. Headings and Construction

The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision.

10. Language

You and we expressly acknowledge and agree that this Agreement and all related agreements, schedules, materials, licenses and policies be drafted in the English language only. Il est convenu que cette convention et tous les annexes, documents, licences et politiques s'y rattachant soient rédigés en anglais.

M. Arbitration as to Claims involving American Express

1. Definitions

For purposes of this section, the following definitions apply (i) American Express, we, our, and us mean Amex Bank of Canada and includes any of its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Claim means any claim, dispute, or controversy between you and American Express whether contractual, extra-contractual, tortious or statutory arising from or relating to the Sponsored Merchant Agreement (including the validity or enforceability or scope of this arbitration provision) or the relationship resulting from the Sponsored Merchant Agreement or otherwise related to the acceptance, processing or settlement of American Express Cards. Claim also includes any claim, dispute, or controversy that may arise from or relates to our ordinary business practices, policies and procedures, or that American Express has the right to join, and (iii) Sponsored Merchant Agreement means this Agreement between you and Payment Aggregator to which American Express is a third party beneficiary (conferring on us beneficiary rights, but not obligations), and (iv) “you” includes your affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing.

2. Asserting a Claim

All Claims will be resolved exclusively by arbitration pursuant to this Section, except as otherwise provided for herein. You agree to use commercially reasonable efforts to settle any Claim within thirty (30) days following the time that a Claim is raised.

3. Arbitration

A Claim that is not resolved directly between the parties thereto within sixty (60) days will be resolved pursuant to this Section and the National Arbitration Rules (Rules) of ADR Institute of Canada, Inc. (Administrator) or its successors or replacement Administrator. For a copy of the Rules, to file a claim, or for other information about the Administrator contact:

ADR Institute
234 Eglinton Avenue East
Suite 500
Toronto, Ontario
M4P 1K5
email: admin@adrcanada.ca.

Prior to the initiation of any Claim, we have the right to change or replace the Administrator or the Rules in our sole discretion.

4. Small Claims Court Proceedings and Complaint Procedures

Notwithstanding anything to the contrary in this section, you may pursue any Claim without resort to arbitration in a small claims court of the province or territory of your main business office in Canada, so long as the Claim is individual, within the jurisdiction of and pending only in that court.

5. Consolidation

You acknowledge and agree that individual arbitration provides a more efficient and cost effective method of resolving Claims than court litigation. All Claims will be arbitrated on an individual basis. Claims brought by you against us or by us against you may be joined, heard one after the other or consolidated as the arbitrator may direct in arbitration with Claims brought by or against someone other than you, if agreed to in writing by all relevant parties. You further agree that the arbitrator will have no jurisdiction or authority to consider any Claim brought on a class action or representative party basis.

6. Arbitration Procedures and Appeal

The arbitrator will take reasonable steps to preserve the privacy of individuals and of business matters. Where the Claim being arbitrated is for an amount less than $50,000, there will be no oral discoveries or oral hearing subject to the discretion of the arbitrator to direct otherwise. The arbitrator’s decision will be final and binding. However, where an appeal is not prohibited by statute, any party can appeal the award to an appeal panel administered by the Administrator, which will consider anew any aspect of the initial award objected to by the appealing party. Where the award under appeal is for $50,000 or less, the appeal will be to a single appeal arbitrator and where the award under appeal is for more than $50,000 the appeal will be to a three-member appeal panel. The appealing party will have thirty (30) days from the date of entry of the written arbitration award to notify the Administrator that it is exercising the right of appeal. The Administrator will then notify the other party that the award has been appealed. The Administrator will appoint the appeal panel that will conduct arbitration pursuant to the Rules and issue its decision within one hundred and twenty (120) days of the date of the appealing party’s written notice. The decision of the three-member appeal panel will be by majority vote. The appeal decision will be final and binding and there will be no further appeal. The appeal decision will be considered as a final award.

7. Location of Arbitrations/Payment of Fees

Any arbitration hearing that you attend will take place in the City of Toronto, Ontario. The arbitrator and, where applicable, the appeal panel shall be entitled to fix the costs and expenses of the arbitration, including reasonable legal fees, the costs and expenses of the arbitration and appeal, and the fees of the arbitrator, appeal panel and Administrator.

8. Limitation of Rights

If arbitration is chosen by either you or us to resolve a Claim, neither you nor we will have the right to litigate the Claim in a court action.

9. Survival

This arbitration section shall survive the termination or expiration of the Sponsored Merchant Agreement.