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MyOrchard User Agreement

1. Introduction

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE APPLICATION SERVICES.

 

Welcome to MyOrchard! MyOrchard is an online financial services platform provided and made available to you by Orchard Technology Inc, a corporation having its principal place of business at 1055 W Hastings Street #2130, Vancouver, British Columbia (“Company“, “MyOrchard” “we“, “us” or “our“).

 

This MyOrchard User Agreement and all attached schedules (the “Agreement“) constitutes a legally binding agreement between the entity or person that registers for a MyOrchard Account (defined below) (“User“) and MyOrchard regarding User’s access to and use of the Application Services (defined below).

 

By clicking on the “I AGREE” button, signing this Agreement or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by MyOrchard or by accessing or using the Application Services, User agrees to be bound by this Agreement (the earliest of which is the “Effective Date“). User should also read MyOrchard’s privacy policy located at www.MyOrchard.com/privacy-policy  (the “Privacy Policy“), which is incorporated by reference into this Agreement. If User does not wish to be bound by this Agreement, please do not access or use the Application Services.

 

If you are entering into this Agreement on behalf of a User, you represent that you have the authority to bind such entity and its affiliates to this Agreement or if an individual that you are of the legal age to enter into a binding contract under applicable law. If you do not have such authority, you must not accept this Agreement.

 

MyOrchard may update or revise this Agreement from time to time by publishing a notice of such updates on MyOrchard’s website. User agrees that it will review this Agreement periodically. If User does not agree to the terms of this Agreement or any modified version of this Agreement, User’s sole recourse is to terminate its use of the Application Services in accordance with this Agreement. If User breaches this Agreement, User’s authorization to use the Application Services automatically terminates and User must discontinue all use of the Application Services.

2. Definitions

 

Account” or “MyOrchard Account” has the meaning ascribed to it in Section 8.

 

Aggregated Data” has the meaning ascribed to it in Section 15.3.

 

Agreement” has the meaning ascribed to it in Section 1.

 

APIs” has the meaning ascribed to it in Section 4.

 

Business Integrity Laws” means applicable laws relating to corruption, money laundering/terrorist financing and economic sanctions in any and all jurisdictions in which MyOrchard or User resides or does business or where this Agreement is or may be performed.

 

Confidential Information” has the meaning ascribed to it in Section 19.1.

 

Contents” has the meaning ascribed to it in Section 17.

 

Disclosing Party” has the meaning ascribed to it in Section 19.1.

 

Documentation” has the meaning ascribed to it in Section 7.

 

Effective Date” has the meaning ascribed to it in Section 1.

 

MyOrchard” or “Company” “we” “us” “our” refers to MyOrchard Technology Inc

 

MyOrchard” has the meaning ascribed to it in Section 4.

 

MyOrchard Data” has the meaning ascribed to it in Section 15.1.

 

MyOrchard Partner” has the meaning ascribed to it in Section 3.

 

Force Majeure Event” includes (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power; (j) epidemics or pandemics including but not limited to COVID-19.

 

Marks” means logos, trade names, service marks and trademarks.

 

User” has the meaning ascribed to it in Section 1.

 

User Data” has the meaning ascribed to it in Section 15.1.

 

User Fees” has the meaning ascribed to it in Schedule B.

 

Payment Networks” means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to this Agreement.

 

Personal Information” means any information relating to an identified or identifiable natural person.

 

Privacy Policy” has the meaning ascribed to it in Section 1.

 

Receiving Party” has the meaning ascribed to it in Section 19.2.

 

Term” has the meaning ascribed to it in Section 6.

 

Transaction Fee” has the meaning ascribed to it in Schedule B.

 

Transaction Rate” has the meaning ascribed to it in Schedule B.

 

Application Services” has the meaning ascribed to it in Section 4.

3. Relationship to MyOrchard Partners

 

User may have enrolled in the Application Services (as defined below) via an authorised MyOrchard partner (the “MyOrchard Partner“). In addition to any other agreement User may have with the MyOrchard Partner, the terms and conditions of this Agreement govern User’s use and MyOrchard’s provision of the Application Services. User expressly acknowledges and agrees that MyOrchard, MyOrchard Partners, suppliers and/or their agents/contractors may transfer data amongst themselves as necessary for the purpose of the provision and management of the Application Services.

 

Notwithstanding anything to the contrary in this Agreement: (i) a MyOrchard Partner may charge, bill, and collect fees from User, in the amounts stated in and in accordance with the terms and conditions of the agreement between User and such MyOrchard Partner (ii) if User is to be billed by a MyOrchard Partner for some or all of the fees associated with Application Services, User shall pay the MyOrchard Partner in accordance with the terms mutually agreed upon between User and such MyOrchard Partner and any amounts referenced to being owed to MyOrchard herein shall mean amounts owed to MyOrchard Partner (iii) if User’s relationship with a MyOrchard Partner expires or terminates and such MyOrchard Partner was billing User for certain fees, User agrees to pay MyOrchard for any further use of the Application Services effective immediately upon any such expiration or termination in accordance with the terms herein (iv) if User’s access to and use of the Application Services were sourced by a MyOrchard Partner, and if MyOrchard receives notice from such MyOrchard Partner that it has terminated or suspended its relationship with User, MyOrchard may suspend and/or terminate User’s right to access and use the Application Services and/or additional services and/or this Agreement without notice and without liability. In addition, MyOrchard may suspend and/or terminate the Application Services and/or additional services and/or this Agreement without notice and without liability upon receipt of notice from MyOrchard Partner, User’s processor or acquiring bank that User is no longer entitled to send an authorization or payment data related to a card transaction to User’s processor.

4. The Services

 

MyOrchard is an online and mobile application financial services technology infrastructure that enables User to ACCEPT payments from User’s customers for that purchase goods and services, DEPOSIT and manage funds and money movement, SPEND funds with MyOrchard issued Cards and other related Transaction Services,  CONTROL data related to Services used and perform various actions delivered from the MyOrchard Application (“MyOrchard“).

 

If User is current in payment of all fees owing to MyOrchard and is otherwise not in default under this Agreement MyOrchard will provide (i) User with access to and use of MyOrchard’s application program interfaces (“APIs“) (ii) from MyOrchard and (iii) provide User with solutions that enable User to access and use Services, and (iv) MyOrchard or a MyOrchard Partner shall provide support service to User, as set forth on the MyOrchard website at www.MyOrchard.com/support (together, the “Application Services“) in accordance with the terms of this Agreement.

 

User agrees and acknowledges that the Application Services may change from time to time without prior notice to User and that MyOrchard may stop (permanently or temporarily) providing the Application Services (or any component of the Application Services) to User, at MyOrchard’s sole discretion, without prior notice to User. User may stop using the Application Services at any time in accordance with the terms of this Agreement.

    4.1 ACCEPT –

    4.2 DEPOSIT –

    4.3 SPEND –

    4.4 CONTROL –

    4.5 BORROW –

    4.6 INVEST –

5. Additional Solutions and Services.

 

In the event that User enrolls in and/or utilizes any of MyOrchard’s additional services that may be provided in the future, User hereby acknowledges and agrees, in absence of specific terms and conditions for the additional services, to the terms and conditions contained in this Agreement apply to any and all additional services.

6. Term

 

This Agreement commences on the Effective Date and continues for the period set out in Schedule A Fee Disclosure or until terminated as provided under this Agreement or applicable law (the “Term“).

7. Licence Grant

 

During the Term, MyOrchard grants User a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Application Services and user guides (the “Documentation“) solely as required to access and use the Application Services. By accessing or using the Application Services, User agrees that User will only access the Application Services by the means described in the Documentation of the Application Services.

 

Except as permitted in this Agreement User shall not: (i) possess, download or copy the Application Services or any part of the MyOrchard, including but not limited any component which comprises the Application Services, but not including any output from the Application Services; (ii) knowingly interfere with the Application Services or MyOrchard or any of MyOrchard’s users, partners, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (iii) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Application Services and/or Documentation (iv) circumvent any user limits or other timing or use restrictions that are built into the MyOrchard or Application Services; (v) sell, rent, lend, transfer, distribute, license, or grant any rights in the Application Services, MyOrchard or Documentation in any form to any person without the written consent of MyOrchard; (vi) remove any proprietary notices, labels, or Marks from the Application Services, MyOrchard or Documentation; (vii) use all or any portion of the User in the design, construction, operation or maintenance of any nuclear facility; (viii) create any “links” to or “frame” or “mirror” of the User or any portion thereof; (ix) build a product or service that is competitive with the Application Services or MyOrchard; (x) copy any ideas, features, functions or graphics of the Application Services or MyOrchard; or (xi) use the Application Services in violation of applicable laws.

 

All rights and licences granted to User in the Application Services shall terminate automatically upon termination of this Agreement or any Application Services to which the rights and licenses relate.

 

User will use commercially reasonable efforts to protect the Personal Information that User collects or processes through the Application Services and comply with all applicable laws.

 

MyOrchard reserves the right to change or temporarily suspend User’s access to the Application Services.

 

MyOrchard may monitor the use of the Application Services to improve them and to verify User’s compliance with this Agreement.

8. MyOrchard Account

 

Only entities or persons located in Canada, with exception to the Providence of Quebec, are eligible to register for a MyOrchard Account.

 

To use the Application Services, User must register for an account (“MyOrchard Account” or “Account“). User is solely responsible for ensuring that the use of the Application Services in accordance with this Agreement is permitted by law or regulation in User’s jurisdiction. If such use is not permitted by law, MyOrchard prohibits all access to and use of the Application Services.

 

As part of the registration process, User will be required to provide MyOrchard with certain information, such as business or trade name, government-issued identification, supplier invoices, email address, mailing address, phone number and any other information that MyOrchard requires from User to verify the ownership, control and identity of the User, to assess risk and for compliance purposes. User will also be required to provide MyOrchard with payment and banking information to facilitate payments to User’s selected bank account. For more information about the information that MyOrchard collects, please see our Privacy Policy. User agrees that User will provide accurate, current and complete information about itself and promptly update all information in its MyOrchard Account to ensure that the MyOrchard Account is accurate, current and complete. User may update or change its MyOrchard Account settings at any time. User is not permitted to provide any unauthorized person with access to its MyOrchard Account.

 

If you are creating a MyOrchard Account(s) on behalf of a company, you represent and warrant that you have been authorized and have the necessary authority to create the MyOrchard Account and that you have shared all user names, passwords and access credentials with other authorized representatives of the company.

    8.1 Account Confidentiality

 

User is responsible for maintaining the confidentiality of User’s MyOrchard Account credentials. User must notify MyOrchard if User becomes aware of a potential breach of security, such as the unauthorized disclosure of User’s MyOrchard Account credentials, and/or an authorized access, use or disclosure of Personal Information that User collects or processes through the Application Services. User shall provide sufficient information about such breach or unauthorized access, use or disclosure to allow MyOrchard to comply with its obligations under applicable law. User acknowledges and agrees that MyOrchard shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with the unauthorized use of the MyOrchard Account arising from a failure by User to maintain the confidentiality of User’s password.

    8.2 Account Termination and Cancellation

 

MyOrchard may terminate, suspend or otherwise restrict or prohibit User’s access to its MyOrchard Account at any time and for any reason, with or without cause, without prior notice to User and without any liability or further obligation of any kind whatsoever to User or any other party.

 

User acknowledges and agrees that if MyOrchard disables access to its MyOrchard Account, User may be prevented from accessing the Application Services.

9. Use of the Application Services

 

User may only use the Application Services in accordance with the respective specific and related service terms.

 

User represents and warrants that it currently meets and will continue to meet the following conditions:

  • User has not made any false representation to MyOrchard, including impersonation of any person or entity or misrepresentation of User’s affiliation with any person or entity;
  • User has not made any false representations to MyOrchard regarding any authorizations, licenses, registrations or exemptions from any government agency or entity;
  • User does not provide any unlawful products or services; and
  • User, nor any of its officers or directors, have been convicted of fraud in any jurisdiction or have been or are in breach of Business Integrity Laws.

 

Unless User has been specifically permitted to do so in a separate agreement with MyOrchard, User agrees that it will not reproduce, duplicate, copy, sell, trade or resell the Contents (defined below), Application Services or any of our products and services for any purpose.

 

User agrees that it will not use the Application Services to:

  • promote or engage in any fraudulent, unlawful or illegal activities;
  • accept payments for any material that User does not have a right to make available or that infringes any patent, trade-mark, trade secret, copyright or other proprietary rights of any person.
  • upload or otherwise make available any material that contains viruses, malware or other malicious software
  • engage in any activity that interferes with or disrupts the use of the Application Services, including bypassing any measures MyOrchard may use to prevent unauthorized access to the Application Services;
  • engage in any activity that attempts to extract any proprietary software used to maintain the Application Services;
  • sell or otherwise monetize the Application Services without MyOrchard’s consent.

 

User agrees that it is solely responsible for (and that MyOrchard has no responsibility to User or to any third party for) any breach of User’s obligations under this Agreement and for the consequences (including any loss or damage which MyOrchard may suffer) of any such breach.

 

MyOrchard reserves the right to terminate this Agreement, close the MyOrchard Account or suspend the MyOrchard Account (and User’s ability to access funds in the Account) if MyOrchard determines, in its sole discretion, that User presents a significant fraud or credit risk or is otherwise using the Application Services in a prohibited manner.

10. Relationship with User’s Customers

 

User is responsible for User’s relationship with User’s customers. MyOrchard is not responsible for the products or services that User offers or sells to its customers, or that User’s customers purchase using the Application Services.

 

USER ACKNOWLEDGES AND AGREES THAT USER IS SOLELY RESPONSIBLE FOR THE NATURE AND QUALITY OF THE PRODUCTS OR SERVICES USER PROVIDES, AND FOR DELIVERY, SUPPORT, REFUNDS, RETURNS OR ANY ANCILLARY SERVICES USER PROVIDES TO ITS CUSTOMERS.

 

User agrees to comply with all consumer protection laws applicable to a Transaction, including providing User’s customers with any necessary information. User agrees to (i) accurately represent the nature of the Transaction and the cost of the product or service; (ii) provide User’s customers with a receipt for each Transaction; and (iii) communicate any refund, return, exchange and/or cancellation policy applicable to a Transaction to its customers (iv) keep all usual and proper records and books of account and all usual and proper entries relating to each Transaction involving the Transactions Services or any portion thereof.

11. Fees

 

Unless identified in Section 3, MyOrchard will charge and User will pay the fees on the terms and conditions as set out in Schedule A Fee Disclosure.

12. Refunds and Reversals

 

User and not MyOrchard will be responsible for any refunds or Transaction reversals processed using the Application Services to the User’s customer.

13. Transaction Liability

 

User is solely responsible for any losses User incurs in connection with Transactions processed using the Application Services. MyOrchard shall not be responsible for any erroneous or fraudulent Transactions processed using the Application Services.

14. Warranties, Representations and Additional Covenants.

 

User represents, warrants and covenants that at all times during the Term of this Agreement and any renewal thereof: (i) all representations and statements made by User in this Agreement, or in any other document relating hereto by User or on User’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; (iii) User will comply, at User’s own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to User, this Agreement, customer data or the Transactions, including, without limitation: (a) the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks; (b) the Payment Card Industry Data Security Standard (PCI DSS) as may be amended from time to time; (c) any regulatory body or agency having jurisdiction over the subject matter hereof; and (d) any services Documentation; (iv) each Transaction will represent a bona fide sale to User’s customer by User for the amount shown on the sales draft as the total sale and constitutes the binding obligation of the customer, free from any claim, demand, defense, setoff or other adverse claim whatsoever (v) User will fulfill completely all of its obligations to the customer and will resolve any customer dispute or complaint directly with the customer.

15. User Data

    15.1 Ownership of Data

 

As between MyOrchard and User, User exclusively owns all rights, title and interest in and to (i) all data submitted by User using the Application Services; and (ii) customer information collected or generated by User by virtue of its relationship with customer aside from the customer’s use of the Application Services (“User Data“). In the event that User’s system is breached and an unauthorized third party has access to or has accessed User Data or MyOrchard Data, User shall notify MyOrchard promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. As between MyOrchard and User, MyOrchard shall exclusively own all rights, title, and interest in and to all data collected or generated by MyOrchard in connection with a customer’s use of the MyOrchard (“MyOrchard Data“).

    15.2 Protection of User Systems and User Data

 

The Application Services are accessed through the internet, which is a public system of which MyOrchard has no control. It is User’s obligation to continuously ensure that any computer, hardware and software that User uses to access the Application Services is free from and adequately protected against computer viruses and other destructive or disruptive components. User is liable for any telephone, internet or other communication provider charges from User’s providers resulting from User’s use of the Application Services.

 

User is solely responsible for the performance and protection of any browser used in connection with the Application Services including without limitation the prompt adoption by User of all security patches and other security measures issued or recommended from time to time by the suppliers of such browsers, and MyOrchard shall not be liable for any damage to or reduction in the performance of User’s computer system or any part thereof by the installation or use of any browser version required to use the Application Services. From time to time MyOrchard may publish details of any restrictions relating to certain browser versions used in conjunction with the Application Services.

 

User agrees never to ask a User’s customer to disclose their PIN to User nor to use any other means outside of the Transactions Services to capture User’s customer’s PIN. User agrees to follow security procedures as advised by MyOrchard and to ensure that User’s employees are familiar with them.

 

User shall secure all User Data with all necessary safeguards appropriate to the level of sensitivity of the information. MyOrchard shall only process User Data (including Personal Information included in the User Data) on behalf of and in accordance with User’s documented instructions, applicable privacy laws and MyOrchard’s Privacy Policy for the following purposes: (i) processing in accordance with this Agreement; (ii) processing initiated by User in User’s use of the Application Services; and (iii) processing to comply with other documented reasonable instructions provided by User where such instructions are consistent with the terms of this Agreement. Users will not to reveal, sell or distribute to a third party any customer information collected or generated by User by virtue of its relationship with customer aside from the customer’s use of the Application Services.

 

In connection with the provision of the Application Services, MyOrchard will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all User Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of User Data by MyOrchard personnel except (a) to provide the Application Services and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by User. MyOrchard shall ensure that its personnel engaged in the processing of User Data are informed of the confidential nature of the User Data and have received appropriate training on their responsibilities and MyOrchard shall take commercially reasonable steps to ensure the reliability of any MyOrchard personnel engaged in the processing of User Data.

    15.3 Aggregated Data

 

User grants MyOrchard a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated, anonymized and de-identified User Data (“Aggregated Data“) and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for any purpose, including, without limitation: to improve the MyOrchard and Application Services; conduct research; develop new products and services; understand usage; and for predictive analytics and insights. MyOrchard shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third party. MyOrchard warrants and represents that it is using methods and processes that are meant to ensure the irreversibility of the Aggregated Data.

    15.4 Data Portability and Deletion

 

Upon the termination or cancellation of a MyOrchard Account, MyOrchard will, upon receipt of a written request from the User, provide User with 90 days from the date of termination or cancellation to export and download its User Data. After such 90-day period, MyOrchard will have no obligation to maintain or provide any User Data, and will thereafter delete or destroy all copies of User Data in its systems or otherwise in its possession or control, unless legally prohibited.

16. Privacy and Personal Information

 

Each party will comply with the applicable privacy laws with respect to any Personal Information that is in its custody or control in connection with the performance of its obligations under this Agreement.

 

For more information about MyOrchard’s collection, use, disclosure and protection of Personal Information, please read MyOrchard’s Privacy Policy.

17. Ownership of Intellectual Property Rights

 

The contents of the Application Services include, without limitation, all information, data, products, materials, services, software applications and tools, design elements, text, images, photographs, illustrations, audio and video contents, artwork and graphics contained therein or otherwise made available to you in connection therewith (collectively the “Contents“).

 

The Application Services, together with trade-marks and other intellectual property displayed, distributed, or otherwise made available via the Application Services, is and shall remain the exclusive property of MyOrchard, and its successors, assigns, licensors, and/or suppliers. Unless User has agreed otherwise in writing with MyOrchard, nothing in this Agreement gives User a right to use any of the Contents, Application Services, MyOrchard’s trade-marks or other intellectual property of MyOrchard. User may not assign or transfer any of the Contents or Application Services and User may not grant a license to use or access the Application Services to any third party.

 

No information or statement contained in this Agreement or the Application Services shall be construed as conferring, directly or by implication, estoppel or otherwise, any license or right under any patent, copyright, trade-mark, or other intellectual property right of MyOrchard or any third party. Unless otherwise permitted in this Agreement, User must not alter, delete, or conceal any copyright or other notices contained on the Application Services, including but not limited to notices on any of the Contents or APIs that User is permitted to download, transmit, display, print, or reproduce.

 

Any unauthorized or prohibited use of any Contents or Application Services may subject User to civil liability, criminal prosecution, or both, under applicable federal, provincial, state and local laws.

 

The limited rights granted to User under this Agreement may be revoked by MyOrchard at any time for any reason whatsoever.

18. Trademarks

    18.1 Use of MyOrchard Marks

 

Subject to the terms and conditions contained herein, MyOrchard hereby grants to User a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the MyOrchard Marks on User’s website in connection with Customer’s offering of payment options to its customers.

    18.2 Use of User’s Marks in White Label Option

 

If User has selected the ‘white label’ option, User hereby grants to MyOrchard a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display User’s Marks as necessary in connection with the performance of the Application Services.

    18.3 Use of Trademarks

 

Each party shall strictly comply with all standards with respect to the other party’s Marks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Marks of the other party. All uses of the other party’s Marks shall inure to the benefit of the party owning such Mark. Either party may update or change the list of Marks usable by the other party hereunder at any time by written notice to the other party.

    18.4 Use the Appropriate ® or TM Symbol

 

User must reproduce any MyOrchard trademarks exactly as directed by MyOrchard, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or TM symbol at the first and most prominent reference, or as soon as practicable thereafter.

    18.5 Trademarks and Domain Registration

 

Except as otherwise provided herein, User shall not use, register or attempt to register any (a) MyOrchard Marks or (b) domain names that are confusingly similar to any of the MyOrchard Marks or MyOrchard’s domain name(s).

    18.6 Trademark Restrictions

 

User shall not (a) use the MyOrchard Marks except as expressly authorized in this Agreement; (b) take any actions inconsistent with MyOrchard’s ownership of the MyOrchard Marks and any associated registrations, or attack the validity of the MyOrchard trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the MyOrchard Marks in any manner that would indicate User is using such MyOrchard Marks other than as a licensee of MyOrchard; nor (d) assist any third party do any of the same.

19. Confidentiality

    19.1 Confidential Information

 

All information that one party provides to the other party during the Term of this Agreement that is identified at the time of disclosure as confidential or reasonably thought to be confidential in the context of the disclosure, whether verbally or in writing, shall be confidential information (all of the foregoing collectively are referred to as “Confidential Information“) of the disclosing party (the “Disclosing Party“).

    19.2 Confidentiality Obligations

 

Neither party (the “Receiving Party“) will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information on a ‘need to know’ basis to perform under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure.

    19.3 Exceptions

 

With the exception of Personal Information, nothing in this Agreement will prohibit or limit either party’s use of Confidential Information that was (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the other party’s Confidential Information, (c) acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (d) which is or becomes publicly available through no breach of this Agreement. The use of any Personal Information is contingent upon permissions from the individual to whom the Personal Information belongs to and/or any legitimate uses allowed under applicable law.

    19.4 Equitable Relief

 

Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 19.

    19.5 Return of Confidential Information

 

Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information and certify to the other party that this has been done.

    19.6 Permitted Disclosures

 

Notwithstanding the foregoing, either party may also disclose the terms and conditions of this Agreement: (i) to legal counsel of the parties; (ii) in confidence, to accountants, banks, prospective investors, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or similar transaction.

20. Termination

 

MyOrchard may terminate User’s use of the Application Services and/or access to the Contents, APIs, additional services, features, functionality, products and services made available in connection therewith, at any time and for any reason, with or without cause, without prior notice to User and without any liability or further obligation of any kind whatsoever to User or any other party.

 

User may terminate this Agreement if MyOrchard materially breaches this Agreement and MyOrchard fails to cure such breach within thirty (30) days following written notice by User of such breach.

 

When this Agreement comes to an end, all of the legal rights, obligations and liabilities that User and MyOrchard have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by such termination.

21. Third-Party Information

 

Any third-party content, data or publications made available through the Application Services are furnished by MyOrchard on an as-is basis for User’s convenience and information. Any opinions, advice, statements, services, offers, or other information made available by third parties are those of the respective author(s) or publisher(s) and not of MyOrchard. MYORCHARD DISCLAIMS ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT THE INFORMATION IN SUCH PUBLICATIONS IS ACCURATE OR COMPLETE.

22. Warranty Disclaimer

 

SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF WARRANTIES. IN THESE JURISDICTIONS, USER HAS ONLY THE WARRANTIES THAT ARE EXPRESSLY REQUIRED TO BE PROVIDED IN ACCORDANCE WITH APPLICABLE LAW.

 

IN ALL OTHER JURISDICTIONS, EXCEPT AS EXPRESSLY PROVIDED HEREIN, USER’S USE OF THE APPLICATION SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OF THE USER SERVICES (AND DATA ACCESSED FROM THE APPLICATION SERVICES) IS PROVIDED TO USER “AS IS” AND “AS AVAILABLE”. MYORCHARD EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY OR CONDITION OF USERABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

 

USER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE APPLICATION SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MYORCHARD PARTNER.

 

USER’S SOLE AND EXCLUSIVE REMEDY, AND MYORCHARD’S SOLE OBLIGATION TO USER OR ANY THIRD PARTY FOR ANY CLAIM ARISING OUT OF USER’S USE OF THE APPLICATION SERVICES, IS THAT USER IS FREE TO DISCONTINUE USER’S USE OF THE APPLICATION SERVICES AT ANY TIME.

23. Limitation of Liability

 

SOME JURISDICTIONS DO NOT PROVIDE EXCLUSION OF LIMITATION OF LIABILITY FOR ALL TYPES OF DAMAGES. IN THOSE JURISDICTIONS, MYORCHARD WILL ONLY BE LIABLE TO USER FOR DAMAGES THAT MYORCHARD IS EXPRESSLY REQUIRED TO BE LIABLE TO USER UNDER APPLICABLE LAW.

 

IN ANY OTHER CASE:

(a)             USER EXPRESSLY UNDERSTANDS AND AGREES THAT MYORCHARD SHALL NOT BE LIABLE TO USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY USER FROM (A) USER’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE USER’S USER ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH USER’S PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF APPLICATION SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MYORCHARD PARTNER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY APPLICATION SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH (E) IN CONNECTION WITH THIS AGREEMENT OR USER’S USE OF THE APPLICATION SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT, LOST OPPORTUNITIES, LOSS OF DATA SUFFERED, OR OTHER INTANGIBLE LOSS.

(b)             MYORCHARD’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED ONE (1) MONTH’S AVERAGE USER FEES PAID BY USER TO MYORCHARD IN THE PREVIOUS TWELVE (12) MONTHS BEFORE THE CLAIM WAS MADE.

 

THE LIMITATIONS ON MYORCHARD’S LIABILITY TO USER IN THIS SECTION SHALL APPLY WHETHER OR NOT MYORCHARD HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

24. Indemnification

 

User agrees to indemnify and hold MyOrchard, MyOrchard’s affiliated companies and its respective agents, employees, directors and officers, and MyOrchard Partners, harmless from any claim or demand, cause of action, liabilities and expenses (including reasonable lawyer’s fees and any fines including any fines and penalties issued by card companies or Payment Networks and any other fees and costs) due to or arising out of: (i) User’s or their customer’s use of the Application Services; (ii) User’s violation of this Agreement; (iii) any misrepresentation made by User or their customers (iv) User’s violation of any rights of another, including User’s customers (v) User’s wilful misconduct, gross negligence or fraud.

25. Obtaining MyOrchard’s Consent And Further Assurances

 

To request the consent of MyOrchard for any of the actions for which such consent is required under this Agreement, please send an e-mail to sales@payMyOrchard.com MyOrchard reserves the right to refuse any such requests in its sole discretion. On MyOrchard’s reasonable request, User will, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, reasonably necessary to give full effect to this Agreement.

26. Business Integrity

 

User represents, warrants and covenants that (i) it will comply with all Business Integrity Laws (ii) neither User nor any of its subsidiaries is a sanctioned person under Business Integrity Laws, and (iii) no public official, or sanctioned person under Business Integrity Laws, holds a legal or beneficial ownership interest, position, or title in User. If during the Term of this Agreement, any public official or sanctioned person acquires such an interest, position or title in User, User shall promptly notify MyOrchard and MyOrchard may take such actions as it deems appropriate under the circumstances, including but not limited to termination of this Agreement.

27. General

 

User’s relationship with MyOrchard during the Term of this Agreement will be that of an independent contractor. Other than as expressly provided herein, neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this Agreement shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Agreement.

 

Users understand that purchases of the license to the Application Services are neither contingent upon the delivery of any future functionality or features nor dependant upon any oral or written public comments made by MyOrchard or Partner with respect to future functionality or features.

 

Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

 

This Agreement and all policies and procedures that are incorporated by reference, including the Privacy Policy, constitute the entire agreement between User and MyOrchard relating to User’s use and MyOrchard’s provision of the Application Services.

 

User agrees that MyOrchard may provide User with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on MyOrchard.

 

The parties agree that if a party does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which it has the benefit of under any applicable law), this will not be taken to be a formal waiver of its rights and that those rights or remedies will still be available to the party.

 

If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provision of this Agreement and the agreement between User and MyOrchard will be deemed amended to the extent necessary to make it legal, valid, and enforceable.

 

The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.

 

The laws and regulations of the province of Ontario and the federal laws applicable therein shall govern this Agreement in all respects, without giving effect to conflicts of laws principles, and the courts of the province of Ontario shall have jurisdiction to hear any question concerning such use.

 

MyOrchard shall not be liable or responsible to User, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any Term of this Agreement, when and to the extent the failure or delay is caused by or results from acts beyond MyOrchard’s reasonable control, including a Force Majeure Event.

 

Notwithstanding anything to the contrary in this Agreement, User permits MyOrchard to exchange information about User with other financial institutions, payment networks, and any other persons for the purpose of providing the services contemplated in the Agreement.

 

User may not assign, transfer, or sell any of its rights, or delegate any of its responsibilities under this Agreement without MyOrchard’s prior written consent, including, without limitation by merger or change of control as set forth below. All assignments of User’s rights are prohibited by this Section, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this Section, a “change of control” is deemed an assignment of rights and a “merger” refers to any merger in which User participates, regardless of whether it is the surviving or disappearing corporation. User may not delegate any performance under this Agreement. Any purported assignment of rights or delegation of performance in violation of this Section is void.

 

Those provisions that should survive termination of this Agreement will survive, including but not limited to payment obligations, User’s indemnification obligations, and all disclaimers and limitations of liability.

Orchard Technology, Inc. 

Email: support@myorchard.com 

Mail: MyOrchard Customer Service 

Attention: Privacy Protection Officer 

Address: 1055 West Hastings Street, Suite 2130 

Vancouver BC, V6E2E9 

 

Effective Date: August 18, 2022