Terms and Conditions
This document governs the Business relationships between FPT FINANCE LIMITED (“Omnia Pay”) and you as a “Merchant”. Access to and use of Omnia Pay services by the Merchant is subject to compliance with all terms and conditions set forth hereinafter together with payment processing services contract and annexes if any. Please read carefully before signing and accepting the terms and conditions of this Agreement.
By accepting these General Terms and Conditions (hereinafter – “Agreement”), you declare that you are the authorized representative of the Merchant and that with your signature (or acceptance if online), the Merchant acknowledges that the Terms and Conditions were read and understood (or have sought legal advice on them) and agrees to be bound by them. Acceptance of these Terms and Conditions will also be considered any use of one or more of the services described below. If the Merchant does not agree with these Terms and Conditions, then the Merchant should not use any of the services, nor sign this Agreement (or decline if online). By using the Services, you authorize Omnia Pay to act as your agent so Omnia Pay may receive, hold, and disburse funds on your behalf and to take any and all actions that it thinks are necessary to provide the Services and to comply with all applicable laws.
1. Introduction
1.1. This Agreement along with the Payment Processing Services Contract and other applicable policies the Merchant has agreed for by signing them or agreed online form the relationship between the Merchant (“You”, “Your”) and its agents and/or authorized representatives, and Omnia Pay (hereinafter – the “Company”). Making use of any of the services of Omnia Pay constitutes acceptance of the Terms and Conditions, and for Omnia Pay to establish a Merchant account for the Merchant. The Merchant further agrees that the Agreement (and any update thereof) will also cover Merchant's use of the Merchant account to add services to Merchant's service plan, to modify or to cancel Merchant's service plan. Even in the absence of any notification to Omnia Pay, the Agreement is also applicable to any other person (legal or natural) Merchant grants permission to use its Merchant account.
1.2. Merchant confirms that the designated person (or persons) as its authorized representative(s) has/have been granted full authority to act on its behalf in relation to the Omnia Pay Service/s (and as this may be modified from time to time), and that any such actions taken by him/her/them including but not limited to purchase of additional services, modification of the service plan, termination, or transfer of the service plan, would be considered binding and final.
1.3. Merchant purchases/uses under this Agreement.
2. Definitions and Interpretations
In the present Terms and Conditions the following terms shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
2.1. Acquirer: An entity contracted by Omnia Pay to submit Sales Drafts and transaction information to the Card Organizations on behalf of Omnia Pay and to receive and pay to Omnia Pay settlement funding for such sales transactions;
2.2. Affiliate: An “Affiliate” of a party is a Person that, directly or indirectly: (i) owns or controls such party; or (ii) is under common ownership or control with such party;
2.3. Applicable Law: All national and international statutes, ordinances, laws, regulations, and executive, administrative, and judicial orders applicable to the Agreement, the transactions, or other matters contemplated under the Agreement, and all amendments thereto; and with respect to Bank and/or Acquirer, also guidance by its financial institution regulators;
2.4. Authorization: A confirmation and approval reception of the Transaction from the Card Issuing Bank and suited Card Organization;
2.5. Bank: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Omnia Pay for processing hereunder, also referred to as “Member”;
2.6. Businesses day: A day, other than a Saturday or a Sunday, or official public or Omnia Pay/Acquirer/Bank holiday;
2.7. Card: Either Credit Card or Debit Card;
2.8. Cardholder: The Person whose name is embossed on a Card (or Debit Card, as applicable) and any legally authorized user of such Card;
2.9. Card Organization: Any entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (“Mastercard”), Visa Europe Ltd. (“Visa”), and any applicable debit networks;
2.10. Card Organization Rules: The rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including without limitation, those of the PCI Security Standards Council, LLC;
2.11. Chargeback: A Card transaction (or disputed portion) that is returned to Acquirer and/or Bank by the Issuer;
2.12. Compliance: Abidance of all applicable laws, rules and regulations, and the relevant rules, regulations and policies of the Card Organizations;
2.13. Credit: A refund or price adjustment given for a previous purchase transaction.
2.14. Credit Card: A device bearing a valid Card Organization Mark and authorizing the Cardholder to buy goods or services on credit;
2.15. Debit Card: See either PIN Debit Card or Non-PIN Debit Card;
2.16. Issuer: The financial institution or Card Organization which has issued a Card to a Person.
2.17. Fraudulent Transaction: An unauthorized Card transaction, when third person obtains Cardholder's credit card details and uses them over the phone or on the Internet to make purchases inMerchant's name;
2.18. Holdback (Holdback) or Rolling Reserve: An amount established and funded pursuant to terms set forth in this Agreement and Payment Processing Services Contract to serve as security for amounts owed by Merchant to Omnia Pay under this Agreement;
2.19. Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines, or other proprietary designations;
2.20. Member: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Omnia Pay for processing hereunder, also referred to as “Bank” and/or “Acquirer”;
2.21. Merchant Application Form – an application completed by the Merchant before this Agreement and Payment Processing Services Contract become effective and which contains the information regarding the Merchant's nature of provided business, business-operating company/ies, ultimate beneficial owner/s, estimated turnover, etc;
2.22. Merchant Category Code (MCC): A four-digit number assigned to a Merchant by the Acquirer/Omnia Pay, when the Merchant first starts accepting Credit cards as a form of payment;
2.23. Merchant Provider: Any Person engaged to provide services involving or relating to: (i) access to Cardholder data transaction data or information related to either Cardholder data or transaction data; or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Third Party Service Provider”;
2.24. MID (Merchant Identification number): is a unique number assigned to a Merchant account to identify it throughout the course of processing activities, generated by the Acquirer/Omnia Pay/Bank;
2.25. Non-PIN Debit Card: A device with a Card Organization Mark that is tied to a Cardholder's account or a prepaid account and which is processed without the Omnia Pay e of a PIN;
2.26. Omnia Pay: An authorized Money Services Business (MSB) entity by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) registered by an Acquirer and/or bank to acquire Transactions on behalf ofMerchants;
2.27. PCI DSS: The Payment Card Industry Data Security Standard, which is a proprietary information security standard for organizations that handle branded credit cards from the major card schemes including Visa, Mastercard, American Express, Discover, and JCB;
2.28. Person: A third party individual or entity, other than the Merchant;
2.29. PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction;
2.30. PIN Debit Card: A device bearing the Marks of ATM networks used at aMerchant location by means of a Cardholder-entered PIN in theMerchant PIN Pad;
2.31. Recurring Transaction: A charge applied to a Cardholder in predetermined intervals for services or goods of an ongoing nature (memberships, subscriptions);
2.32. Retrieval Request/Transaction Documentation Request: A request for documentation related to a Card transaction such as a copy of a Sales Draft or other transaction source documents;
2.33. Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to,Merchant using a Card, regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Card Organization Rules and Applicable Law;
2.34. SDP: A Site Data Protection Program designed to ensure that Omnia Pays, Merchants and third party service providers take adequate measures to protect against account data compromises;
2.35. Services: The authorization, processing, and settlement services provided by Omnia Pay to Merchant pursuant to the terms and conditions set forth in this Agreement;
2.36. Settlement Account: An account or account(s) at a financial institution designated by Merchant as the account to be debited and credited by Omnia Pay for Card transactions, fees, Chargebacks, and other amounts due under or in connection with this Agreement and Payment Processing Services Contract;
2.37. Third Party Service Provider: Any Person engaged to provide services involving or relating to (i) access to Cardholder data, transaction data or information related to either Cardholder data or transaction data or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Merchant Provider.”
3. Scope of the Services
3.1. The Services allow Merchant to accept payment card (Visa and/or Mastercard) transactions into its Merchant account, which is handled by Omnia Pay.
3.2. Omnia Pay is a Money Services Business (MSB) entity, which is entitled to provide payment services and shall not be considered a credit institution.
3.3. Omnia Pay provides to Merchant payment services that facilitate Merchant's acceptance of credit and debit card payments as a form of payment for goods, services and/or other facilities provided to Cardholders through the Merchant's website/s. To do so, Omnia Pay enters into agreements with other authorized payment services providers and/or banks.
3.4. By opening a Merchant account with Omnia Pay, Merchant is required to provide certain accurate and complete information, as well as other documentation required by Omnia Pay, which must be approved by Omnia Pay, prior to using the Services.
3.5. By entering into this Agreement, Merchant provides an authorization for Omnia Pay to share provided information with bank or other financial institution Omnia Pay has established contractual relationship with.
3.6. If the request to open a Merchant account is approved, Omnia Pay is entitled to request additional information from Merchant at any time. Omnia Pay may also require additional information at any time to keep up to date Merchant's record and to determine whether Merchan continues to meet the requirements for a Merchan Account.
3.7. The Services work with Visa and Mastercard Card Organizations' credit, debit, and prepaid cards. Omnia Pay may remove or add Cards or alternative payment methods that it accepts at any time and without prior notice to Merchant. The Card Organizations require that Merchant complies with all applicable laws, rules, and regulations, which may be amended at any time. Omnia Pay may be required to amend this agreement to comply with such amendments on case-by-case basis.
4. Merchant's Duties and Responsibilities
It is the Merchant's sole responsibility to:
4.1. Frequently check the status of the Merchant's account maintained with Omnia Pay and to ensure by reviewing with similar frequency the Merchant account's transaction history in order to ascertain if any unauthorized activity has taken place. When the Merchant suspects that unauthorized activity occurred, the suspicion should be promptly communicated to Omnia Pay.
4.2. Develop and maintain (including hosting arrangements of) the Merchant website ensuring its accessibility on the internet for the customers. Through the Merchant's website, the Merchant should ensure that any placed orders for products and/or services it sells will be properly fulfilled. The Merchant must also ensure unobstructed transmission of any transactional information to Omnia Pay servers and that the Merchant's system (software and hardware) is not tainting the transmitted information in any way.
4.3. Ensure that the software used is updated to the latest version and that any required security updates and patches are in place.
4.4. Ensure that the customer's registration information requested at the Merchant website as well as the available payment information is always up to date.
4.5. Ensure that there is at least one active commercial banking relationship with a credit institution. Omnia Pay will have no bearing on this relationship and any terms and conditions set out by such a relationship will have no bearing on Omnia Pay and will be the sole responsibility of the Merchant and the credit institution(s).
4.6. Ensure that collection, storage and transmission of customer data is performed using security policies that are in line with business best practices and which protect the privacy of Merchant data as required by the Personal Information Protection and Electronic Documents Act (“PIPEDA”). For using its service, Omnia Pay may review the Merchant data handling process and if deemed necessary, request that the Merchant undertake to bolster its process, within reasonable commercial limits, to further safeguard the customer data and the overall security of the Omnia Pay service.
4.7. Ensure that any information procured through the use of the Omnia Pay service should only be used in conjunction with the service and in such a way that it is not acceptable in accordance with the Agreement and the Merchant should not permit the use of such information by any other third party other than in conjunction with the service.
4.8. Use the Omnia Pay service in accordance with the terms and conditions stipulated in the Agreement, Payment Processing Services Contract, the Policies, and other User Guides and/or Manuals that Omnia Pay may publish from time to time.
4.9. Ensure that the Merchant is up to date with any amendments to the terms and conditions of the Agreement and with any changes to the services provided by Omnia Pay.
5. Omnia Pay Duties and Responsibilities
5.1. Omnia Pay agrees (always subject to the terms and conditions of the Agreement) and is responsible to:
5.4. Continued use of the services by the Merchant will be considered as acceptance of the amendments and/or changes, and the Merchant will agrees to be bound by them. By continuing to use Omnia Pay services after any revision to this Agreement or change in Services, Merchant agrees to abide by and be bound by any such revisions or changes.
5.5. Security of transactions is significant to Omnia Pay, which has employed and will sustain adequate security systems to ensure secure transmission of Merchant's Transactions over the internet. The security measures taken consist of encryption and firewall systems as well as publicly known intrusion prevention mechanisms. For encryption Omnia Pay will use Secure Socket Layer (SSL) technology which is considered the standard, while for the firewall system it will use a combination of hardware and software that will result in all external traffic terminating at a demilitarized firewalled zone.
5.6. Omnia Pay does not guarantee the security of the Services or Transaction data and will not be responsible in the event of any infiltration of its security systems, provided that Omnia Pay has used commercially reasonable efforts to prevent any such infiltration. Merchant further acknowledges and agrees that it, and not Omnia Pay, is responsible for the security of Transaction data, or information or any other information stored on Merchant's servers, and that Omnia Pay is not responsible for any other party's servers (other than subcontractors of Omnia Pay solely to the extent it is liable for its own actions hereunder).
6. Merchant Account
6.1. By establishing a Merchant Account, Merchant confirms that Merchant's business-operating entity and activity are authorized to conduct business by the country in which it operates.
6.2. The Services may only be used within the countries that allow doing so.
6.3. Merchant provides Omnia Pay the authorization to contact and share information about its Merchant Account with Merchant's bank or other financial institution. Upon approval of Merchant Account and by accepting the terms of this Agreement, Merchant's provides the authorization Omnia Pay to hold, receive, and disburse funds on its behalf. Merchant may terminate this authorization by closing its Merchant Account.
6.4. Merchant agrees to do the following:
7. Unauthorized Use of the Services
7.1. Merchants is entitled to use the Services only in compliance with all laws, rules, and regulations applicable to the use of the Services.
7.2. Omnia Pay may choose not to authorize or settle any submitted transaction, if Omnia Pay considers the transaction is in violation of this Agreement and Payment Processing Services Contract may cause harm to Merchant the Omnia Pay or its partners.
7.3. Merchant expressly provides the authorization Omnia Pay to share information about Merchant, Merchant's Account or its transactions with law enforcement if Omnia Pay considers the Services have been used for an illegal, unauthorized or criminal purpose.
8. Financial Information
8.1. The Merchant is obliged to provide Omnia Pay with financial statements and other related information upon request by Omnia Pay. Such financial statements and other related documents required to be prepared in accordance with generally accepted accounting standards.
8.2. Omnia Pay may also require providing other information concerning Merchant's business activity and its compliance with the terms and provisions of this Agreement as Omnia Pay may reasonably request.
9. Fees and Payments
9.1. Merchant agrees to pay the applicable fees set forth in this Agreement, as well as in Payment Processing Services Contract.
9.2. Omnia Pay reserves the right to change Fees at any time with reasonable prior notice of such changes to the Merchant. Merchant's continuous use of the Services indicates its consent to the change in Fees. If Merchant does not provide the consent to the change in Fees, then Merchant must immediately close Merchant's Account.
9.3. Merchant agrees that Omnia Pay will make settlement transaction on a weekly basis (or otherwise agreed) transferring the funds to the settlement account specified by Merchant in Payment Processing Services Contract.
9.4. Where payments received through Merchant's website are held by Omnia Pay, Merchant agrees that it will assume the volatility risks of the local currency that have chosen to receive payment in from Omnia Pay, between the time that Omnia Pay receives the payment from the Merchant Customer and the time that Omnia Pay transfers the payment to Merchant's bank account in accordance with the Payment Processing Services Contract.
10. Returns and Refunds
10.1. Merchant agrees to process returns of, and provide refunds and adjustments for the goods or services rendered through its website and Merchant Account in accordance with this Agreement, Payment Processing Services Contract and Card Organization rules.
11. Chargebacks
11.1. Chargebacks can be received for a number of reasons, including, but not limited to, any one of the following:
12. Taxes
12.1. It is the Merchant's sole responsibility to determine which, if any, taxes apply to the payments received, and to report and remit the correct tax to the appropriate tax authority. Omnia Pay is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any Transaction.
13. Restricted Activities on the Merchant Account
13.1. Omnia Pay does not accept and process payments from or to sanctioned countries and territories in accordance with Canadian laws and regulations, as well as other binding international legal standards.
13.2. Omnia Pay does not provide services to Merchants, who are engaged in restricted activities. Omnia Pay has listed a number of activities that are restricted or prohibited as they relate to the use of the Omnia Pay Services, the terms of this agreement, the applicable laws, regulations, directives and decrees that may be issued from time to time by the Omnia Pay, the jurisdiction it is authorized, the jurisdictions of its cross border activities and Canada. The Merchant agrees that engaging in any of the below activities, may cause the Omnia Pay service quality to suffer, and that Merchant may restrict the level of safe access that Merchant may enjoy. Such activities include:
13.2.1. Violating any law, regulation, directive, statute or contract in relation the Service received, including without limitation, money laundering laws and regulations, consumer and personal data protection, the payment services regulations and its directives;
13.2.2. Violating the terms and conditions, including without limitation any other policies and/or regulations related to Services;
13.2.3. Acting in a manner that is offensive, harassing or demeaning to other Merchants, to Omnia Pay and/or its partners and third parties;
13.2.4. Providing inaccurate, disingenuous, misleading or entirely false (deliberately) information without justifiable cause;
13.2.5. Sending and receiving what may be deemed as unauthorized funds or funds from fraudulent transactions;
13.2.6. Infringement of Omnia Pay's copyrights, patent, trademarks or any other intellectual property rights;
13.2.7. Not being cooperative with Omnia Pay when requested to provide additional information that will allow Omnia Pay to better familiarize itself with the nature of Merchant's business and continuing operations;
13.2.8. Refusing to provide confirmation of Merchant's identity and verification of details when requested upon, in order fo Omnia Pay to perform an investigation when needed;
13.2.9. Sending or submitting to Omnia Pay documents that Omnia Pay reasonably believes to be fraudulent;
13.2.10. Using tools and mechanisms to hide Merchant's identity and location (use of proxy and other anonymizing technics);
13.2.11. Causing and maintaining an account with a balance owed to Omnia Pay (negative balance);
13.2.12. Engaging in activities that may cause Omnia Pay with increased risk of fraud or credit exposure that is beyond the acceptable limits set by Omnia Pay;
13.2.13. Engaging in activities that lead to Omnia Pay handling a disproportionate number of claims settled in favor of the claimant Merchant;
13.2.14. Using the Omnia Pay Services from a jurisdiction that the Omnia Pay authorization does not cover;
13.2.15. Intentionally or unintentionally facilitate any malicious computer programming routines that may cause damage, harmfully interfere with, clandestinely capture or steal any system, data or information;
13.2.16. Facilitating any viruses, Trojan horses, worms or other computer programming tools, as well as using of anonymizing proxy, that may make damage to Omnia Pay's system;
13.2.17. Intentionally or unintentionally using any automatic device process, or manual process to monitor or copy Omnia Pay website and/or mobile application without the Omnia Pay prior written consent;
13.2.18. Merchant's actions may present Omnia Pay internet service providers, partners or other suppliers to seize offering their services to Omnia Pay;
13.2.19. Acting in a manner that has a negative interference with the provision of the Omnia Pay service in accordance with the terms of this Agreement;
13.2.20. Using the Services in a manner that could cause a risk of non-compliance with the Omnia Pay anti-money laundering, counter terrorist financing and other relevant regulatory obligations;
13.2.21. Using the Omnia Pay Services in a manner that may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to Omnia Pay, a Merchant, or a third party;
13.2.22. Disclosing information of other Merchant's to third parties;
13.2.23. Using the Service in a manner that deviates from what is prescribed in this Terms and Conditions.
14. Unauthorized Transactions
14.1. Omnia Pay shall make every effort to avoid unauthorized transactions to take place on the Merchant's Account. For these reasons every Merchant shall be fully identified by presenting all the necessary information and/or documentation.
14.2. In the events, if the Merchant reasonably believes that his Account has been compromised, hacked, misused by third parties in any way or had been otherwise used in an unauthorized way the Merchant duly agrees to notify Omnia Pay immediately by using any available communication channel. In such a case the Merchant duly impliedly authorizes Omnia Pay to block any Transactions on the Account immediately. For further communication further identification verification may be carried out by Omnia Pay.
14.3. Omnia Pay reserves a right to block the Merchant's account in case it reasonably believes that the Merchant's Account has been compromised, hacked, misused by third parties in any way or had been otherwise used in an unauthorised way. Omnia Pay shall notify the Merchant in event of blocking as soon as it might be reasonably necessary in the situation.
14.4. Omnia Pay shall not bear any responsibility for any losses resulting from unauthorised use of the Account or Services, including to any Transactions made in the Omnia Pay System or outside it.
15. Amendments of Conditions
15.1. Omnia Pay shall be entitled to amend these Conditions at any time without giving a prior notice. It is Merchant's responsibility to track the changes are available.
15.2. Omnia Pay expressly reserves the right to use its website to inform the Merchant about any changes in these Conditions and the posting of a notice on Omnia Pay's website shall be deemed a valid notification of such changes to the Merchant. The Merchant undertakes to regularly review Omnia Pay's website and/or to regularly access his online reporting where relevant information may be published.
15.3. Also immediate will be any amendments necessary due to the enrichment of the Service and its delivery or in cases where Merchant's rights and obligations are not adversely affected. Omnia Pay will not provide the Merchant with any notice of such immediate changes.
16. Suspension and Termination of the Relationships
16.1. The Business relationships between the Merchant and Omnia Pay shall remain in force until terminated by mutual agreement between the Merchant and Omnia Pay.
16.2. Without prejudice of the right of early termination as set forth in the next Paragraph, either party is entitled to terminate its relationship with the other at any time, without reason, by giving no less than one (1) week prior written notice, including but not limited to notice given by e-mail to the other party, such notice to specify the date on which the termination is to become effective. No penalty shall be payable by either party upon termination of its relationship with the other. Termination shall in no way affect any rights and obligations accrued hereunder until the date of termination. Indeed, the Merchant cannot cancel already executed transactions and shall fully remunerate services already provided.
16.3. The termination of the relationship with the Merchant shall extinguish the Merchant's right to use the Omnia Pay System as well as all and any software and solutions made available to him by Omnia Pay.
16.4. Upon termination of the relationship, Omnia Pay and the Merchant undertake to complete all Transactions that are already in progress and the terms of these Conditions shall continue to bind both parties in relation to such transactions. However, Omnia Pay shall be entitled to complete all outstanding Transactions of the Merchant and to offset, after conversion into the Base Currency, any amount due to the Merchant against any amount owed by him, irrespective of the maturation date of any respective Transaction. Omnia Pay shall be entitled to deduct all amounts due to it before transferring any funds on any Account of the Merchant.
16.5. Upon termination of the Business relationships with the Merchant, the right of the Merchant to use any and all of Omnia Pay software and systems that have been made available to the Merchant during the terms of these Conditions shall expire.
16.6. Suspension of relationships by error/without intention to terminate the business relation
16.6.1. Omnia Pay shall have the right at its sole discretion to suspend its relationship with the Merchant for a reasonable period of time by notice with immediate effect, upon or at any time after the occurrence of any of the following events:
16.6.2. If an Merchant Account has been switched to the “Closed” mode in the system due to a mistake, meaning without any Merchant instruction and out of any applicable internal regulation/terms and conditions, the account may be freely reactivated. In such case, the Merchant Account relation is reputed to have been uninterrupted.
16.6.3. In case the Merchant states that the Merchant Account closure instruction was given by mistake (for instance by misfiling a withdrawal form), the Omnia Pay shall assess, based on the circumstances and explanations given by the Merchant, whether it can reasonably be considered that the Merchant instruction was mistaken and that the Merchant did not want to close the Merchant Account. In case the conclusion is that the Merchant's closure instruction was erroneous, the Merchant Account relation shall be maintained open/reactivated and is reputed to have been uninterrupted.
16.7. Early Termination of the relationships
16.7.1. Omnia Pay shall have the right at its sole discretion to terminate its relationship with the Merchant by notice with immediate effect, upon or at any time after the occurrence of any of the following events:
16.7.1.1. the Merchant fails to make any payment or fails to comply fully with any obligations under these Conditions or any transaction;
16.7.1.2. in case of inability of Omnia Pay to identify the Account holder and the beneficial owner of the Account in accordance with anti-money laundering and terrorism financing laws and regulations;
16.7.1.3. if Omnia Pay does not receive upon its request the documents and/or information to satisfy requirements of the anti-money laundering and terrorism financing laws and regulations;
16.7.1.4. if Omnia Pay has reasonable suspicion of fraudulent or criminal activity concerning the use of the Merchant Account;
16.7.1.5. if the Merchant dies or loses legal capacity;
16.7.1.6. if the Merchant enters into liquidation or into an insolvency arrangement (including an arrangement with its creditors), or if a receiver is appointed over all or part of its assets or undertaking;
16.7.1.7. if any of the representations or warranties given by the Merchant are, or become, untrue;
16.7.1.8. if Omnia Pay reasonably considers it necessary for its own protection or the protection of its associates;
16.7.1.9. if Omnia Pay is given a direction to do so by any regulator or other competent regulatory, tax or other authority.
16.8. The Merchant acknowledges, recognizes and agrees that Omnia Pay shall not be liable for any consequences of it taking the steps described in this Paragraph. The rights described in this Paragraph shall be in addition to any other rights which Omnia Pay may have against the Merchant under these Conditions or under applicable law.
16.9. If Omnia Pay terminates its relationship with a Merchant: (i) the funds of Merchant's Account will be transferred to the most recent details Merchant has given the bank account in Merchant's name after deducting any charges due and payable by Merchant; and (ii) any of Merchant's or Omnia Pay rights or liabilities which have accrued prior to the termination shall continue until fully discharged by the relevant party, save for any rights or liabilities, which are expressed to continue after these Conditions end.
17. Confidentiality
17.1. Neither party shall disclose to any person (unless required to do so by any applicable law or by any regulatory or supervisory authority or by any other person entitled by law to require such disclosure) any information relating to the business, transactions, finances or other matters of confidential nature of the other party which it may in the course of its duties or otherwise become aware, and each party shall use all reasonable endeavors to prevent any such disclosure.
17.2. By adhering to these Conditions, the Merchant authorizes Omnia Pay to disclose such information relating to the Merchant as may be required by any law, rule or regulatory authority without prior notice to the Merchant.
18. Waiver of Rights
18.1. The rights and remedies contained in these Conditions shall be cumulative and not exclusive of any rights or remedies provided by law. No delay or omission of Omnia Pay in exercising any right, power or remedy provided by law or under these Conditions, or partial or defective exercise thereof, shall:
18.1.1. impair or prevent any further or other exercise of such right, power or remedy; or
18.1.2. operate as a waiver of such right, power or remedy;
18.1.3. No waiver of breach of all or part of these Conditions shall (unless expressly agreed in writing by the waiving party) be construed as a waiver of any future breach of the same or as authorizing a continuation of a particular breach.
19. Remedies
19.1. The Merchant shall indemnify Omnia Pay and keep Omnia Pay indemnified against all losses, taxes, expenses, costs and liabilities whatsoever (present, future, contingent or otherwise, and including reasonable legal fees) which may be suffered or incurred by Omnia Pay as a result of or in connection with:
19.1.1. Any breach of these Conditions or Payment Processing Services Contract by the Merchant;
19.1.2. As a result of illegal actions performed by the Merchant using Omnia Pay services.
20. No Liability for Tax
20.1. Notwithstanding it is required by the relevant laws Omnia Pay has no obligation whatsoever to any taxation or similar authority in respect of any taxation or other similar duty or levy payable by any account holder. It is Merchant's obligation to pay all taxation, duties and levies that are payable by it in respect of Merchant's Account and the Services Merchant instructs Omnia Pay to carry out.
21. Force Majeure
21.1. Omnia Pay is not responsible for any breach of these Terms by it, or for any loss Merchant incurs in connection with such breach, due to any Force Majeure circumstances.
21.2. The performance of the Omnia Pay Services is deemed to be suspended for the period that the Force Majeure circumstances continue, and Omnia Pay will have an extension of time for performance for the duration of that period.
21.3. If any Force Majeure circumstances occur, Omnia Pay may take any action it considers appropriate in connection with the Services and use reasonable endeavors to end the Force Majeure.
21.4. The condition beyond its reasonable control (Force Majeure) includes but is not limited to governmental action, the war, riots, hurricane, typhoon, acts of terrorism, earthquake, fire, flood, lightning, explosion strikes, lockouts, emergency state, pandemic or any other diseases as defined by the World Health Organization (WHO), prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the Agreement or other acts of God, labor conditions, power failures, and Internet disturbances.
22. Complaints Procedure
22.1. If the Merchant has a complaint regarding the Services or any other matter contained in these Agreement, the Merchant can contact Omnia Pay through any available communication channel.
23. Dispute Resolution
23.1. The Merchant and Omnia Pay shall make every endeavor to amicably resolve any dispute, in good faith and in a constructive manner. The Merchant acknowledges and agrees that threats and blackmailing towards Omnia Pay are prohibited and constitute valid ground for interrupting negotiations and for immediate termination of any Business relationships.
24. Applicable Law and Jurisdiction
24.1. These Conditions are construed in accordance with and shall be governed by the laws of Canada.
24.2. Any dispute, controversy or claim arising out of or in relation to these Conditions, including the validity, invalidity, breach or termination thereof, shall be settled before the courts of Canada and in accordance with Canadian law.
24.3. In the event of any conflict between the provisions of this agreement and a Payment Processing Services Contract, the provisions of Payment Processing Services Contract shall prevail, unless the relevant clause expressly provides that it shall prevail, thereby referencing the clause of this agreement over which the applicable schedule is intended to prevail.
By accepting these General Terms and Conditions (hereinafter – “Agreement”), you declare that you are the authorized representative of the Merchant and that with your signature (or acceptance if online), the Merchant acknowledges that the Terms and Conditions were read and understood (or have sought legal advice on them) and agrees to be bound by them. Acceptance of these Terms and Conditions will also be considered any use of one or more of the services described below. If the Merchant does not agree with these Terms and Conditions, then the Merchant should not use any of the services, nor sign this Agreement (or decline if online). By using the Services, you authorize Omnia Pay to act as your agent so Omnia Pay may receive, hold, and disburse funds on your behalf and to take any and all actions that it thinks are necessary to provide the Services and to comply with all applicable laws.
1. Introduction
1.1. This Agreement along with the Payment Processing Services Contract and other applicable policies the Merchant has agreed for by signing them or agreed online form the relationship between the Merchant (“You”, “Your”) and its agents and/or authorized representatives, and Omnia Pay (hereinafter – the “Company”). Making use of any of the services of Omnia Pay constitutes acceptance of the Terms and Conditions, and for Omnia Pay to establish a Merchant account for the Merchant. The Merchant further agrees that the Agreement (and any update thereof) will also cover Merchant's use of the Merchant account to add services to Merchant's service plan, to modify or to cancel Merchant's service plan. Even in the absence of any notification to Omnia Pay, the Agreement is also applicable to any other person (legal or natural) Merchant grants permission to use its Merchant account.
1.2. Merchant confirms that the designated person (or persons) as its authorized representative(s) has/have been granted full authority to act on its behalf in relation to the Omnia Pay Service/s (and as this may be modified from time to time), and that any such actions taken by him/her/them including but not limited to purchase of additional services, modification of the service plan, termination, or transfer of the service plan, would be considered binding and final.
1.3. Merchant purchases/uses under this Agreement.
2. Definitions and Interpretations
In the present Terms and Conditions the following terms shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
2.1. Acquirer: An entity contracted by Omnia Pay to submit Sales Drafts and transaction information to the Card Organizations on behalf of Omnia Pay and to receive and pay to Omnia Pay settlement funding for such sales transactions;
2.2. Affiliate: An “Affiliate” of a party is a Person that, directly or indirectly: (i) owns or controls such party; or (ii) is under common ownership or control with such party;
2.3. Applicable Law: All national and international statutes, ordinances, laws, regulations, and executive, administrative, and judicial orders applicable to the Agreement, the transactions, or other matters contemplated under the Agreement, and all amendments thereto; and with respect to Bank and/or Acquirer, also guidance by its financial institution regulators;
2.4. Authorization: A confirmation and approval reception of the Transaction from the Card Issuing Bank and suited Card Organization;
2.5. Bank: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Omnia Pay for processing hereunder, also referred to as “Member”;
2.6. Businesses day: A day, other than a Saturday or a Sunday, or official public or Omnia Pay/Acquirer/Bank holiday;
2.7. Card: Either Credit Card or Debit Card;
2.8. Cardholder: The Person whose name is embossed on a Card (or Debit Card, as applicable) and any legally authorized user of such Card;
2.9. Card Organization: Any entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (“Mastercard”), Visa Europe Ltd. (“Visa”), and any applicable debit networks;
2.10. Card Organization Rules: The rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including without limitation, those of the PCI Security Standards Council, LLC;
2.11. Chargeback: A Card transaction (or disputed portion) that is returned to Acquirer and/or Bank by the Issuer;
2.12. Compliance: Abidance of all applicable laws, rules and regulations, and the relevant rules, regulations and policies of the Card Organizations;
2.13. Credit: A refund or price adjustment given for a previous purchase transaction.
2.14. Credit Card: A device bearing a valid Card Organization Mark and authorizing the Cardholder to buy goods or services on credit;
2.15. Debit Card: See either PIN Debit Card or Non-PIN Debit Card;
2.16. Issuer: The financial institution or Card Organization which has issued a Card to a Person.
2.17. Fraudulent Transaction: An unauthorized Card transaction, when third person obtains Cardholder's credit card details and uses them over the phone or on the Internet to make purchases inMerchant's name;
2.18. Holdback (Holdback) or Rolling Reserve: An amount established and funded pursuant to terms set forth in this Agreement and Payment Processing Services Contract to serve as security for amounts owed by Merchant to Omnia Pay under this Agreement;
2.19. Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines, or other proprietary designations;
2.20. Member: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Omnia Pay for processing hereunder, also referred to as “Bank” and/or “Acquirer”;
2.21. Merchant Application Form – an application completed by the Merchant before this Agreement and Payment Processing Services Contract become effective and which contains the information regarding the Merchant's nature of provided business, business-operating company/ies, ultimate beneficial owner/s, estimated turnover, etc;
2.22. Merchant Category Code (MCC): A four-digit number assigned to a Merchant by the Acquirer/Omnia Pay, when the Merchant first starts accepting Credit cards as a form of payment;
2.23. Merchant Provider: Any Person engaged to provide services involving or relating to: (i) access to Cardholder data transaction data or information related to either Cardholder data or transaction data; or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Third Party Service Provider”;
2.24. MID (Merchant Identification number): is a unique number assigned to a Merchant account to identify it throughout the course of processing activities, generated by the Acquirer/Omnia Pay/Bank;
2.25. Non-PIN Debit Card: A device with a Card Organization Mark that is tied to a Cardholder's account or a prepaid account and which is processed without the Omnia Pay e of a PIN;
2.26. Omnia Pay: An authorized Money Services Business (MSB) entity by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) registered by an Acquirer and/or bank to acquire Transactions on behalf ofMerchants;
2.27. PCI DSS: The Payment Card Industry Data Security Standard, which is a proprietary information security standard for organizations that handle branded credit cards from the major card schemes including Visa, Mastercard, American Express, Discover, and JCB;
2.28. Person: A third party individual or entity, other than the Merchant;
2.29. PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction;
2.30. PIN Debit Card: A device bearing the Marks of ATM networks used at aMerchant location by means of a Cardholder-entered PIN in theMerchant PIN Pad;
2.31. Recurring Transaction: A charge applied to a Cardholder in predetermined intervals for services or goods of an ongoing nature (memberships, subscriptions);
2.32. Retrieval Request/Transaction Documentation Request: A request for documentation related to a Card transaction such as a copy of a Sales Draft or other transaction source documents;
2.33. Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to,Merchant using a Card, regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Card Organization Rules and Applicable Law;
2.34. SDP: A Site Data Protection Program designed to ensure that Omnia Pays, Merchants and third party service providers take adequate measures to protect against account data compromises;
2.35. Services: The authorization, processing, and settlement services provided by Omnia Pay to Merchant pursuant to the terms and conditions set forth in this Agreement;
2.36. Settlement Account: An account or account(s) at a financial institution designated by Merchant as the account to be debited and credited by Omnia Pay for Card transactions, fees, Chargebacks, and other amounts due under or in connection with this Agreement and Payment Processing Services Contract;
2.37. Third Party Service Provider: Any Person engaged to provide services involving or relating to (i) access to Cardholder data, transaction data or information related to either Cardholder data or transaction data or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Merchant Provider.”
3. Scope of the Services
3.1. The Services allow Merchant to accept payment card (Visa and/or Mastercard) transactions into its Merchant account, which is handled by Omnia Pay.
3.2. Omnia Pay is a Money Services Business (MSB) entity, which is entitled to provide payment services and shall not be considered a credit institution.
3.3. Omnia Pay provides to Merchant payment services that facilitate Merchant's acceptance of credit and debit card payments as a form of payment for goods, services and/or other facilities provided to Cardholders through the Merchant's website/s. To do so, Omnia Pay enters into agreements with other authorized payment services providers and/or banks.
3.4. By opening a Merchant account with Omnia Pay, Merchant is required to provide certain accurate and complete information, as well as other documentation required by Omnia Pay, which must be approved by Omnia Pay, prior to using the Services.
3.5. By entering into this Agreement, Merchant provides an authorization for Omnia Pay to share provided information with bank or other financial institution Omnia Pay has established contractual relationship with.
3.6. If the request to open a Merchant account is approved, Omnia Pay is entitled to request additional information from Merchant at any time. Omnia Pay may also require additional information at any time to keep up to date Merchant's record and to determine whether Merchan continues to meet the requirements for a Merchan Account.
3.7. The Services work with Visa and Mastercard Card Organizations' credit, debit, and prepaid cards. Omnia Pay may remove or add Cards or alternative payment methods that it accepts at any time and without prior notice to Merchant. The Card Organizations require that Merchant complies with all applicable laws, rules, and regulations, which may be amended at any time. Omnia Pay may be required to amend this agreement to comply with such amendments on case-by-case basis.
4. Merchant's Duties and Responsibilities
It is the Merchant's sole responsibility to:
4.1. Frequently check the status of the Merchant's account maintained with Omnia Pay and to ensure by reviewing with similar frequency the Merchant account's transaction history in order to ascertain if any unauthorized activity has taken place. When the Merchant suspects that unauthorized activity occurred, the suspicion should be promptly communicated to Omnia Pay.
4.2. Develop and maintain (including hosting arrangements of) the Merchant website ensuring its accessibility on the internet for the customers. Through the Merchant's website, the Merchant should ensure that any placed orders for products and/or services it sells will be properly fulfilled. The Merchant must also ensure unobstructed transmission of any transactional information to Omnia Pay servers and that the Merchant's system (software and hardware) is not tainting the transmitted information in any way.
4.3. Ensure that the software used is updated to the latest version and that any required security updates and patches are in place.
4.4. Ensure that the customer's registration information requested at the Merchant website as well as the available payment information is always up to date.
4.5. Ensure that there is at least one active commercial banking relationship with a credit institution. Omnia Pay will have no bearing on this relationship and any terms and conditions set out by such a relationship will have no bearing on Omnia Pay and will be the sole responsibility of the Merchant and the credit institution(s).
4.6. Ensure that collection, storage and transmission of customer data is performed using security policies that are in line with business best practices and which protect the privacy of Merchant data as required by the Personal Information Protection and Electronic Documents Act (“PIPEDA”). For using its service, Omnia Pay may review the Merchant data handling process and if deemed necessary, request that the Merchant undertake to bolster its process, within reasonable commercial limits, to further safeguard the customer data and the overall security of the Omnia Pay service.
4.7. Ensure that any information procured through the use of the Omnia Pay service should only be used in conjunction with the service and in such a way that it is not acceptable in accordance with the Agreement and the Merchant should not permit the use of such information by any other third party other than in conjunction with the service.
4.8. Use the Omnia Pay service in accordance with the terms and conditions stipulated in the Agreement, Payment Processing Services Contract, the Policies, and other User Guides and/or Manuals that Omnia Pay may publish from time to time.
4.9. Ensure that the Merchant is up to date with any amendments to the terms and conditions of the Agreement and with any changes to the services provided by Omnia Pay.
5. Omnia Pay Duties and Responsibilities
5.1. Omnia Pay agrees (always subject to the terms and conditions of the Agreement) and is responsible to:
- Provide the services for which the Merchant subscribes to and pays for;
- Provide the Merchant with (or provide access to through the Omnia Pay system) standardized transaction reports as well as accounting reporting tools that the Merchant can use in preparation of its accounting records.
- Amend the terms and conditions of the Agreement including any and all of its Schedules;
- Change all or part of the services it offers to the Merchant under the Agreement.
5.4. Continued use of the services by the Merchant will be considered as acceptance of the amendments and/or changes, and the Merchant will agrees to be bound by them. By continuing to use Omnia Pay services after any revision to this Agreement or change in Services, Merchant agrees to abide by and be bound by any such revisions or changes.
5.5. Security of transactions is significant to Omnia Pay, which has employed and will sustain adequate security systems to ensure secure transmission of Merchant's Transactions over the internet. The security measures taken consist of encryption and firewall systems as well as publicly known intrusion prevention mechanisms. For encryption Omnia Pay will use Secure Socket Layer (SSL) technology which is considered the standard, while for the firewall system it will use a combination of hardware and software that will result in all external traffic terminating at a demilitarized firewalled zone.
5.6. Omnia Pay does not guarantee the security of the Services or Transaction data and will not be responsible in the event of any infiltration of its security systems, provided that Omnia Pay has used commercially reasonable efforts to prevent any such infiltration. Merchant further acknowledges and agrees that it, and not Omnia Pay, is responsible for the security of Transaction data, or information or any other information stored on Merchant's servers, and that Omnia Pay is not responsible for any other party's servers (other than subcontractors of Omnia Pay solely to the extent it is liable for its own actions hereunder).
6. Merchant Account
6.1. By establishing a Merchant Account, Merchant confirms that Merchant's business-operating entity and activity are authorized to conduct business by the country in which it operates.
6.2. The Services may only be used within the countries that allow doing so.
6.3. Merchant provides Omnia Pay the authorization to contact and share information about its Merchant Account with Merchant's bank or other financial institution. Upon approval of Merchant Account and by accepting the terms of this Agreement, Merchant's provides the authorization Omnia Pay to hold, receive, and disburse funds on its behalf. Merchant may terminate this authorization by closing its Merchant Account.
6.4. Merchant agrees to do the following:
- Comply with all applicable laws and regulations and all requirements of Card Organizations applicable to Merchants;
- Maintain the security of Merchant's Account as part of its use of the Services.
- Not accept payments in connection with any illegal activity;
- Use the Services only for lawful Merchants activities as approved by Omnia Pay and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines, or penalties; and
- Not use the Services to process cash advances.
7. Unauthorized Use of the Services
7.1. Merchants is entitled to use the Services only in compliance with all laws, rules, and regulations applicable to the use of the Services.
7.2. Omnia Pay may choose not to authorize or settle any submitted transaction, if Omnia Pay considers the transaction is in violation of this Agreement and Payment Processing Services Contract may cause harm to Merchant the Omnia Pay or its partners.
7.3. Merchant expressly provides the authorization Omnia Pay to share information about Merchant, Merchant's Account or its transactions with law enforcement if Omnia Pay considers the Services have been used for an illegal, unauthorized or criminal purpose.
8. Financial Information
8.1. The Merchant is obliged to provide Omnia Pay with financial statements and other related information upon request by Omnia Pay. Such financial statements and other related documents required to be prepared in accordance with generally accepted accounting standards.
8.2. Omnia Pay may also require providing other information concerning Merchant's business activity and its compliance with the terms and provisions of this Agreement as Omnia Pay may reasonably request.
9. Fees and Payments
9.1. Merchant agrees to pay the applicable fees set forth in this Agreement, as well as in Payment Processing Services Contract.
9.2. Omnia Pay reserves the right to change Fees at any time with reasonable prior notice of such changes to the Merchant. Merchant's continuous use of the Services indicates its consent to the change in Fees. If Merchant does not provide the consent to the change in Fees, then Merchant must immediately close Merchant's Account.
9.3. Merchant agrees that Omnia Pay will make settlement transaction on a weekly basis (or otherwise agreed) transferring the funds to the settlement account specified by Merchant in Payment Processing Services Contract.
9.4. Where payments received through Merchant's website are held by Omnia Pay, Merchant agrees that it will assume the volatility risks of the local currency that have chosen to receive payment in from Omnia Pay, between the time that Omnia Pay receives the payment from the Merchant Customer and the time that Omnia Pay transfers the payment to Merchant's bank account in accordance with the Payment Processing Services Contract.
10. Returns and Refunds
10.1. Merchant agrees to process returns of, and provide refunds and adjustments for the goods or services rendered through its website and Merchant Account in accordance with this Agreement, Payment Processing Services Contract and Card Organization rules.
11. Chargebacks
11.1. Chargebacks can be received for a number of reasons, including, but not limited to, any one of the following:
- A refund is not issued to a customer upon the return or non-delivery of goods or services;
- An authorization/approval code was required and not obtained;
- The transaction was allegedly fraudulent;
- The customer disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a set-off, defense or counterclaim; or
- The customer refuses to make payment for a Card sale because in the customer's good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner.
12. Taxes
12.1. It is the Merchant's sole responsibility to determine which, if any, taxes apply to the payments received, and to report and remit the correct tax to the appropriate tax authority. Omnia Pay is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any Transaction.
13. Restricted Activities on the Merchant Account
13.1. Omnia Pay does not accept and process payments from or to sanctioned countries and territories in accordance with Canadian laws and regulations, as well as other binding international legal standards.
13.2. Omnia Pay does not provide services to Merchants, who are engaged in restricted activities. Omnia Pay has listed a number of activities that are restricted or prohibited as they relate to the use of the Omnia Pay Services, the terms of this agreement, the applicable laws, regulations, directives and decrees that may be issued from time to time by the Omnia Pay, the jurisdiction it is authorized, the jurisdictions of its cross border activities and Canada. The Merchant agrees that engaging in any of the below activities, may cause the Omnia Pay service quality to suffer, and that Merchant may restrict the level of safe access that Merchant may enjoy. Such activities include:
13.2.1. Violating any law, regulation, directive, statute or contract in relation the Service received, including without limitation, money laundering laws and regulations, consumer and personal data protection, the payment services regulations and its directives;
13.2.2. Violating the terms and conditions, including without limitation any other policies and/or regulations related to Services;
13.2.3. Acting in a manner that is offensive, harassing or demeaning to other Merchants, to Omnia Pay and/or its partners and third parties;
13.2.4. Providing inaccurate, disingenuous, misleading or entirely false (deliberately) information without justifiable cause;
13.2.5. Sending and receiving what may be deemed as unauthorized funds or funds from fraudulent transactions;
13.2.6. Infringement of Omnia Pay's copyrights, patent, trademarks or any other intellectual property rights;
13.2.7. Not being cooperative with Omnia Pay when requested to provide additional information that will allow Omnia Pay to better familiarize itself with the nature of Merchant's business and continuing operations;
13.2.8. Refusing to provide confirmation of Merchant's identity and verification of details when requested upon, in order fo Omnia Pay to perform an investigation when needed;
13.2.9. Sending or submitting to Omnia Pay documents that Omnia Pay reasonably believes to be fraudulent;
13.2.10. Using tools and mechanisms to hide Merchant's identity and location (use of proxy and other anonymizing technics);
13.2.11. Causing and maintaining an account with a balance owed to Omnia Pay (negative balance);
13.2.12. Engaging in activities that may cause Omnia Pay with increased risk of fraud or credit exposure that is beyond the acceptable limits set by Omnia Pay;
13.2.13. Engaging in activities that lead to Omnia Pay handling a disproportionate number of claims settled in favor of the claimant Merchant;
13.2.14. Using the Omnia Pay Services from a jurisdiction that the Omnia Pay authorization does not cover;
13.2.15. Intentionally or unintentionally facilitate any malicious computer programming routines that may cause damage, harmfully interfere with, clandestinely capture or steal any system, data or information;
13.2.16. Facilitating any viruses, Trojan horses, worms or other computer programming tools, as well as using of anonymizing proxy, that may make damage to Omnia Pay's system;
13.2.17. Intentionally or unintentionally using any automatic device process, or manual process to monitor or copy Omnia Pay website and/or mobile application without the Omnia Pay prior written consent;
13.2.18. Merchant's actions may present Omnia Pay internet service providers, partners or other suppliers to seize offering their services to Omnia Pay;
13.2.19. Acting in a manner that has a negative interference with the provision of the Omnia Pay service in accordance with the terms of this Agreement;
13.2.20. Using the Services in a manner that could cause a risk of non-compliance with the Omnia Pay anti-money laundering, counter terrorist financing and other relevant regulatory obligations;
13.2.21. Using the Omnia Pay Services in a manner that may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to Omnia Pay, a Merchant, or a third party;
13.2.22. Disclosing information of other Merchant's to third parties;
13.2.23. Using the Service in a manner that deviates from what is prescribed in this Terms and Conditions.
14. Unauthorized Transactions
14.1. Omnia Pay shall make every effort to avoid unauthorized transactions to take place on the Merchant's Account. For these reasons every Merchant shall be fully identified by presenting all the necessary information and/or documentation.
14.2. In the events, if the Merchant reasonably believes that his Account has been compromised, hacked, misused by third parties in any way or had been otherwise used in an unauthorized way the Merchant duly agrees to notify Omnia Pay immediately by using any available communication channel. In such a case the Merchant duly impliedly authorizes Omnia Pay to block any Transactions on the Account immediately. For further communication further identification verification may be carried out by Omnia Pay.
14.3. Omnia Pay reserves a right to block the Merchant's account in case it reasonably believes that the Merchant's Account has been compromised, hacked, misused by third parties in any way or had been otherwise used in an unauthorised way. Omnia Pay shall notify the Merchant in event of blocking as soon as it might be reasonably necessary in the situation.
14.4. Omnia Pay shall not bear any responsibility for any losses resulting from unauthorised use of the Account or Services, including to any Transactions made in the Omnia Pay System or outside it.
15. Amendments of Conditions
15.1. Omnia Pay shall be entitled to amend these Conditions at any time without giving a prior notice. It is Merchant's responsibility to track the changes are available.
15.2. Omnia Pay expressly reserves the right to use its website to inform the Merchant about any changes in these Conditions and the posting of a notice on Omnia Pay's website shall be deemed a valid notification of such changes to the Merchant. The Merchant undertakes to regularly review Omnia Pay's website and/or to regularly access his online reporting where relevant information may be published.
15.3. Also immediate will be any amendments necessary due to the enrichment of the Service and its delivery or in cases where Merchant's rights and obligations are not adversely affected. Omnia Pay will not provide the Merchant with any notice of such immediate changes.
16. Suspension and Termination of the Relationships
16.1. The Business relationships between the Merchant and Omnia Pay shall remain in force until terminated by mutual agreement between the Merchant and Omnia Pay.
16.2. Without prejudice of the right of early termination as set forth in the next Paragraph, either party is entitled to terminate its relationship with the other at any time, without reason, by giving no less than one (1) week prior written notice, including but not limited to notice given by e-mail to the other party, such notice to specify the date on which the termination is to become effective. No penalty shall be payable by either party upon termination of its relationship with the other. Termination shall in no way affect any rights and obligations accrued hereunder until the date of termination. Indeed, the Merchant cannot cancel already executed transactions and shall fully remunerate services already provided.
16.3. The termination of the relationship with the Merchant shall extinguish the Merchant's right to use the Omnia Pay System as well as all and any software and solutions made available to him by Omnia Pay.
16.4. Upon termination of the relationship, Omnia Pay and the Merchant undertake to complete all Transactions that are already in progress and the terms of these Conditions shall continue to bind both parties in relation to such transactions. However, Omnia Pay shall be entitled to complete all outstanding Transactions of the Merchant and to offset, after conversion into the Base Currency, any amount due to the Merchant against any amount owed by him, irrespective of the maturation date of any respective Transaction. Omnia Pay shall be entitled to deduct all amounts due to it before transferring any funds on any Account of the Merchant.
16.5. Upon termination of the Business relationships with the Merchant, the right of the Merchant to use any and all of Omnia Pay software and systems that have been made available to the Merchant during the terms of these Conditions shall expire.
16.6. Suspension of relationships by error/without intention to terminate the business relation
16.6.1. Omnia Pay shall have the right at its sole discretion to suspend its relationship with the Merchant for a reasonable period of time by notice with immediate effect, upon or at any time after the occurrence of any of the following events:
16.6.2. If an Merchant Account has been switched to the “Closed” mode in the system due to a mistake, meaning without any Merchant instruction and out of any applicable internal regulation/terms and conditions, the account may be freely reactivated. In such case, the Merchant Account relation is reputed to have been uninterrupted.
16.6.3. In case the Merchant states that the Merchant Account closure instruction was given by mistake (for instance by misfiling a withdrawal form), the Omnia Pay shall assess, based on the circumstances and explanations given by the Merchant, whether it can reasonably be considered that the Merchant instruction was mistaken and that the Merchant did not want to close the Merchant Account. In case the conclusion is that the Merchant's closure instruction was erroneous, the Merchant Account relation shall be maintained open/reactivated and is reputed to have been uninterrupted.
16.7. Early Termination of the relationships
16.7.1. Omnia Pay shall have the right at its sole discretion to terminate its relationship with the Merchant by notice with immediate effect, upon or at any time after the occurrence of any of the following events:
16.7.1.1. the Merchant fails to make any payment or fails to comply fully with any obligations under these Conditions or any transaction;
16.7.1.2. in case of inability of Omnia Pay to identify the Account holder and the beneficial owner of the Account in accordance with anti-money laundering and terrorism financing laws and regulations;
16.7.1.3. if Omnia Pay does not receive upon its request the documents and/or information to satisfy requirements of the anti-money laundering and terrorism financing laws and regulations;
16.7.1.4. if Omnia Pay has reasonable suspicion of fraudulent or criminal activity concerning the use of the Merchant Account;
16.7.1.5. if the Merchant dies or loses legal capacity;
16.7.1.6. if the Merchant enters into liquidation or into an insolvency arrangement (including an arrangement with its creditors), or if a receiver is appointed over all or part of its assets or undertaking;
16.7.1.7. if any of the representations or warranties given by the Merchant are, or become, untrue;
16.7.1.8. if Omnia Pay reasonably considers it necessary for its own protection or the protection of its associates;
16.7.1.9. if Omnia Pay is given a direction to do so by any regulator or other competent regulatory, tax or other authority.
16.8. The Merchant acknowledges, recognizes and agrees that Omnia Pay shall not be liable for any consequences of it taking the steps described in this Paragraph. The rights described in this Paragraph shall be in addition to any other rights which Omnia Pay may have against the Merchant under these Conditions or under applicable law.
16.9. If Omnia Pay terminates its relationship with a Merchant: (i) the funds of Merchant's Account will be transferred to the most recent details Merchant has given the bank account in Merchant's name after deducting any charges due and payable by Merchant; and (ii) any of Merchant's or Omnia Pay rights or liabilities which have accrued prior to the termination shall continue until fully discharged by the relevant party, save for any rights or liabilities, which are expressed to continue after these Conditions end.
17. Confidentiality
17.1. Neither party shall disclose to any person (unless required to do so by any applicable law or by any regulatory or supervisory authority or by any other person entitled by law to require such disclosure) any information relating to the business, transactions, finances or other matters of confidential nature of the other party which it may in the course of its duties or otherwise become aware, and each party shall use all reasonable endeavors to prevent any such disclosure.
17.2. By adhering to these Conditions, the Merchant authorizes Omnia Pay to disclose such information relating to the Merchant as may be required by any law, rule or regulatory authority without prior notice to the Merchant.
18. Waiver of Rights
18.1. The rights and remedies contained in these Conditions shall be cumulative and not exclusive of any rights or remedies provided by law. No delay or omission of Omnia Pay in exercising any right, power or remedy provided by law or under these Conditions, or partial or defective exercise thereof, shall:
18.1.1. impair or prevent any further or other exercise of such right, power or remedy; or
18.1.2. operate as a waiver of such right, power or remedy;
18.1.3. No waiver of breach of all or part of these Conditions shall (unless expressly agreed in writing by the waiving party) be construed as a waiver of any future breach of the same or as authorizing a continuation of a particular breach.
19. Remedies
19.1. The Merchant shall indemnify Omnia Pay and keep Omnia Pay indemnified against all losses, taxes, expenses, costs and liabilities whatsoever (present, future, contingent or otherwise, and including reasonable legal fees) which may be suffered or incurred by Omnia Pay as a result of or in connection with:
19.1.1. Any breach of these Conditions or Payment Processing Services Contract by the Merchant;
19.1.2. As a result of illegal actions performed by the Merchant using Omnia Pay services.
20. No Liability for Tax
20.1. Notwithstanding it is required by the relevant laws Omnia Pay has no obligation whatsoever to any taxation or similar authority in respect of any taxation or other similar duty or levy payable by any account holder. It is Merchant's obligation to pay all taxation, duties and levies that are payable by it in respect of Merchant's Account and the Services Merchant instructs Omnia Pay to carry out.
21. Force Majeure
21.1. Omnia Pay is not responsible for any breach of these Terms by it, or for any loss Merchant incurs in connection with such breach, due to any Force Majeure circumstances.
21.2. The performance of the Omnia Pay Services is deemed to be suspended for the period that the Force Majeure circumstances continue, and Omnia Pay will have an extension of time for performance for the duration of that period.
21.3. If any Force Majeure circumstances occur, Omnia Pay may take any action it considers appropriate in connection with the Services and use reasonable endeavors to end the Force Majeure.
21.4. The condition beyond its reasonable control (Force Majeure) includes but is not limited to governmental action, the war, riots, hurricane, typhoon, acts of terrorism, earthquake, fire, flood, lightning, explosion strikes, lockouts, emergency state, pandemic or any other diseases as defined by the World Health Organization (WHO), prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the Agreement or other acts of God, labor conditions, power failures, and Internet disturbances.
22. Complaints Procedure
22.1. If the Merchant has a complaint regarding the Services or any other matter contained in these Agreement, the Merchant can contact Omnia Pay through any available communication channel.
23. Dispute Resolution
23.1. The Merchant and Omnia Pay shall make every endeavor to amicably resolve any dispute, in good faith and in a constructive manner. The Merchant acknowledges and agrees that threats and blackmailing towards Omnia Pay are prohibited and constitute valid ground for interrupting negotiations and for immediate termination of any Business relationships.
24. Applicable Law and Jurisdiction
24.1. These Conditions are construed in accordance with and shall be governed by the laws of Canada.
24.2. Any dispute, controversy or claim arising out of or in relation to these Conditions, including the validity, invalidity, breach or termination thereof, shall be settled before the courts of Canada and in accordance with Canadian law.
24.3. In the event of any conflict between the provisions of this agreement and a Payment Processing Services Contract, the provisions of Payment Processing Services Contract shall prevail, unless the relevant clause expressly provides that it shall prevail, thereby referencing the clause of this agreement over which the applicable schedule is intended to prevail.