Terms and Conditions

 Last updated April 15, 2025

These software-as-a-service terms and conditions (also, “SaaS Terms”) are agreed between PayShepherd and Customer and governs the use of the PayShepherd Solution (defined below) and other associated services. PayShepherd and Customer will be referred to together as the “Parties” and each a “Party”. These SaaS Terms are effective as of the Effective Date of the Order Form in the cover pages hereof (“Effective Date”).

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:

  1. Definitions
    Capitalized terms used in this Agreement have the meaning ascribed to them in the Order Form or in this Section 1 as follows:
    1. “Administrator User Account” means the administrator account for use by the Administrator User.
    2. “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the PayShepherd Solution on Customer’s behalf through an Administrator User Account.
    3. “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
    4. “Aggregated Data” has the meaning set out in Section 3(a).
    5. “Agreement” has the meaning set out in the Order Form in the cover pages hereof.
    6. “Anti-Spam Laws” means Canada’s Anti-Spam Legislation and the regulations thereunder and any other Applicable Laws that regulate the same or similar subject matter. 
    7. “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority including Privacy Laws and Anti-Spam Laws.
    8. “CEMs” has the meaning set out in Section 10(a).
    9. “Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
    10. “Confidential Information” has the meaning set out in Section 9(a).
    11. “Contractor Account” means each user account issued following the request of the Customer for its Contractors.
    12. “Contractor Data” means any data (other than Aggregated Data and PayShepherd Metadata), information, content, records, and files that a Contractor loads or enters into, transmits to, or makes available to the PayShepherd Solution, including Contractor’s Personal Information included in such data. 
    13. “Contractors” means those contractors, suppliers, and service providers of the Customer, as well as their employees and contractors, who are permitted by the Customer to access and use the PayShepherd Platform through a Contractor Account. 
    14. “Customer” has the meaning set out in the Order Form in the cover pages hereof.
    15. “Customer Data” means any data (other than Aggregated Data and PayShepherd Metadata), information, content, records, and files, including but not limited to lessons learned and contextual project information, that Customer or any of its Permitted Users loads or enters into, transmits to, or makes available to the PayShepherd Solution and the Services, including any Customer’s Personal Information included such data and excluding any Contractor Data. 
    16. “Customer Indemnitee” has the meaning set out in Section 10(d).
    17. “Customer User Accounts” means the Employee User Accounts, Contractor Account and Administrator User Accounts together.
    18. “Discloser” has the meaning set out in Section 9(a).
    19. “Effective Date” has the meaning set out in the preamble hereof.
    20. “Employee User Account” means each user account created by the Administrator User for its Employee Users.
    21. “Employee Users” means those active employees of Customer that are permitted by Customer to access and use the PayShepherd Solution. 
    22. “Feedback” has the meaning set out in Section 3(e).
    23. “Fees” has the meaning set out in Section 8(a).
    24. “Force Majeure” has the meaning set out in Section 14(f).
    25. “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental, or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, court or other law, rule or regulation-making entity having or purporting to have jurisdiction over any person or matter related to this Agreement.
    26. “Gross Negligence or Wilful Misconduct” means any act or failure to act in breach of a duty of care that was intended to cause harm, which rises to the level of intentional wrongdoing, or was in reckless disregard of a wanton indifference to the harmful and foreseeable consequences of such act or failure to act, but does not include an act or failure to act that constituted merely a lack of due care (or a contractual breach alone).
    27. “High Risk Activities” means activities that: (A) has a high risk of physical harm death, serious personal injury, or severe environmental or property damage; (B) has a high risk of economic harm; (C) involves hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the PayShepherd Solution (where applicable) could lead directly to death, personal injury or environmental or property damage; or (D) involves high risk government decision making, including multi-level marketing; gambling; payday lending; automated determinations of eligibility for credit, employment; educational institutions; or public assistance services; military or warfare; the creation or operation of weaponry or weapons development; management or operation of critical infrastructure in energy, transportation, and water, law enforcement or criminal justice; migration or asylum.
    28. “Indemnitee” has the meaning set out in Section 10(f).
    29. “Indemnitor” has the meaning set out in Section 10(f).
    30. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. 
    31. “Loss” or “Losses” means any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 
    32. “Malicious Code” means viruses, worms, time bombs, trojan horses and other malicious code, files, scripts, agents or programs.
    33. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.
    34. “Order Form” means the order form in the cover pages hereof and any other order form that references these SaaS Terms that is agreed to by the Parties. 
    35. “Order Form Initial Term” has the meaning set out in Section 13(a).
    36. “Order Form Renewal Term” has the meaning set out in Section 13(a).
    37. “Order Form Term” means in respect of each Order Form, the Order Form Initial Term and the Order Form Renewal Terms for each such Order Form.
    38. “PayShepherd” has the meaning set out in the Order Form in the cover pages hereof.
    39. “PayShepherd Indemnitee” has the meaning set out in Section 1(a).
    40. “PayShepherd Metadata” means any metadata that is generated by or resulting from the processing of the Customer Data and Contractor Data and that results from the ordinary course of the operation of the PayShepherd Solution but will not include Customer’s Confidential Information.
    41. “PayShepherd Platform” means the services through: (i) which PayShepherd hosts and makes available PayShepherd's cloud-based contractor management platform as may be more particularly described in the Order Form; and (ii) any component or Modification of the services referred to in (i). 
    42. “PayShepherd Property” has the meaning set out in Section 3(b).
    43. “PayShepherd Solution” means: (i) PayShepherd Platform; (ii) PayShepherd’s other software, tools, data, documents, forms, and websites; and (iii) any component or Modification of the foregoing. The term “PayShepherd Solution” does not include any Services or Third-Party Products.
    44. “Permitted User(s)” means Administrator Users, each Employee User, each Contractor and includes any Customer User Account; and any Contractor Account.
    45. “Personal Information” means information about an identifiable individual transferred by Customer, or any Permitted Users to PayShepherd hereunder.
    46. “Privacy Laws” means any Applicable Laws that govern the privacy or security of Customer’s Personal Information or Contractor’s Personal Information. 
    47. “Professional Services” means the implementation, training, onboarding and other professional services described in the Order Form. The term “Professional Services” does not include PayShepherd Solution.
    48. “Recipient” has the meaning set out in Section 9(a).
    49. “SaaS Terms” has the meaning set out in the preamble hereof.
    50. “Security Incident” has the meaning set out in Section 4(B).
    51. “Services” means the Support Services and the Professional Services.
    52. “Support Services” has the meaning set out in Section 6(c).
    53. “Term” has the meaning set out in Section 13(a).
    54. “Termination Effective Date” has the meaning set out in Section 13(b).
    55. “Third Party Licensed Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
    56. “Third Party Products” means Third Party Licensed Technology and any third party products that are owned by third parties and are incorporated into or accessible through the PayShepherd Platform.
    57. “Website” means any websites used by PayShepherd to provide the PayShepherd Platform, including the website(s) located at: https://www.payshepherd.com/ and any subdomains. 

  2. The PayShepherd Solution
    1. Provisioning of the PayShepherd Solution. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, PayShepherd will make the PayShepherd Solution available to Customer on the terms and conditions set out in this Agreement during the applicable Order Form Term and solely for Customer’s internal business use.  Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the PayShepherd Solution, and for Permitted Users’ compliance with this Agreement. Each Order Form, when duly executed, will be incorporated into and subject to the Agreement.
        
    2. Restrictions on Use. Customer will not itself, and will not permit others to:
      1. sub-license, sell, rent, lend, lease or distribute the PayShepherd Property or any Intellectual Property Rights therein, or otherwise make the PayShepherd Property available to any third parties other than Permitted Users;

      2. use or access the PayShepherd Property: 
        1. in violation of any Applicable Laws or Intellectual Property Right; 
        2. for any High Risk Activities;
        3. in a manner that threatens the security or functionality of the PayShepherd Solution; or 
        4. for any purpose or in any manner not expressly permitted in this Agreement;

      3. use or access the PayShepherd Solution and the Services to create, collect, transmit, store, use or process any Customer Data that: 
        1. Customer does not have the lawful right to create, collect, transmit, store, use or process; 
        2. violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or 
        3. contains any computer viruses, worms, Malicious Code, or any software intended to damage or alter a computer system or data;

      4. copy or modify the PayShepherd Property;

      5. reverse engineer, de-compile or disassemble the PayShepherd Property or any part of them;

      6. access or use the PayShepherd Property for purposes of benchmarking or competitive analysis of such PayShepherd Property;

      7. access or use the PayShepherd Property for the purpose of building a similar or competitive product or service;

      8. remove or obscure any proprietary notices or labels on the PayShepherd Property, including brand, copyright, trademark and patent or patent pending notices; or 

      9. perform any vulnerability, penetration or similar testing of the PayShepherd Property; 

      10. harvest or scrape any content from the Website or the PayShepherd Solution;

      11. interfere with any third party’s use or enjoyment of the PayShepherd Solution;

      12. do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, abusive, illegal, fraudulent, or harmful to any third party; or

      13. attempt to do or do any of the foregoing.

    3. Suspension of Access; Scheduled Downtime; Modifications. PayShepherd may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
       
      1. Suspend Customer’s access to or use of the PayShepherd Solution, the Services or any component of them: 
        1. for scheduled maintenance; 
        2. due to a Force Majeure event;
        3. if PayShepherd believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;
        4. to address any emergency security concerns; 
        5. if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Laws; or
        6. for any other reason as provided in this Agreement;

      2. make any Modifications to the PayShepherd Solution provided that such Modifications does not reduce the material functionality of the PayShepherd Solution.

        Customer is required to accept all patches, bug fixes and updates made by or on behalf of PayShepherd to the PayShepherd Solution.

    4. Professional Services. PayShepherd shall provide certain Professional Services as may be required by and described in Order Form, which PayShepherd may mutually agree to in writing from time to time. Customer will pay PayShepherd any Fee(s) set forth in the Order Form(s), as well as any approved travel expenses (unless expressly agreed otherwise in the Order Form) for such Professional Services. All Professional Services will be performed remotely unless otherwise indicated in the Order Form as being an on-site provided service. PayShepherd will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. PayShepherd’s resources may include employees of PayShepherd or subcontractors. In addition to PayShepherd’s termination rights set out in the Agreement, upon any breach by Customer of an Order Form, PayShepherd will be entitled, in its discretion and upon prior written notice to Customer, to suspend the Professional Services under the applicable Order Form until such time as such breach or default is remedied by Customer. Customer will cooperate with PayShepherd in the performance of the Professional Services, including by providing access (whether onsite or remotely, as specified in the applicable Order Form) to Customer’s personnel, systems, equipment, or communications facilities, as reasonably requested by PayShepherd from time to time and perform other applicable customer responsibilities set out below and in an Order Form (“Customer Dependencies”). If Customer has not performed its Customer Dependencies including but not limited to providing all necessary cooperation or information to PayShepherd, or PayShepherd is otherwise denied or delayed access or information by Customer, then PayShepherd will be excused, without liability, from performing any further Professional Services. Such failure to perform Professional Services resulting from Customer’s failures will not relieve Customer from its payment obligations to PayShepherd.

  3. Ownership; Reservation of Rights
    1. Subject to the rights granted in this Section 3, Customer retains all right, title and interest including Intellectual Property Rights in and to Customer Data.

    2. Customer grants to PayShepherd, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, transferable, sublicensable and fully paid-up right and license during the Term to access, collect, use, store, transfer, transmit, copy, modify, adapt, display, and otherwise process Customer Data to provide the PayShepherd Solution and the Services.

    3. Customer grants to PayShepherd, and its subcontractors a nonexclusive, worldwide, perpetual, royalty-free, irrevocable, transferable, sublicensable and fully paid-up right and license to access, collect, use, store, transfer, transmit, copy, modify, adapt, display, and otherwise process Customer Data and Contractor Data to: (i) improve and enhance the PayShepherd Solution, the Services and PayShepherd’s other offerings, including to  improve the performance of the PayShepherd Solution and to gain insights on the data available on the artifacts, algorithms and other technology of PayShepherd, its licensors and its sub-processors; (ii) produce or generate PayShepherd Metadata;  and (iii) produce or generate data, materials or information, including related to how individual Permitted Users interact with the PayShepherd Solution and the Services including frequency and duration of usage, specific features or functions accessed, Permitted User preferences and patterns of behavior and that: (A) is anonymized; (B) cannot be re-identified by PayShepherd; and (C) does not contain any Personal Information, or identify any customers or Permitted Users of Customer or Customer (such data, information and materials, the “Aggregated Data”).  PayShepherd may use, store, disclose, transfer, transmit, copy, modify, display and otherwise process the Aggregated Data and PayShepherd Metadata for any purpose and without restriction or obligation to Customer of any kind. Aggregated Data and PayShepherd Metadata are not Customer Data and is not Customer’s Confidential Information. 

    4. PayShepherd or its licensors retain all right, title and interest, including any Intellectual Property Rights in and to: (i) PayShepherd Solution; (ii) the Services; (iii) anything used, developed or delivered by or on behalf of PayShepherd under this Agreement including any reports, deliverables, Aggregated Data and PayShepherd Metadata; (iv) all other PayShepherd’s Confidential Information including documentation; and (v) any Modifications to the foregoing (i) to (iv), (collectively “PayShepherd Property”).

    5. To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the PayShepherd Solution or the Services to PayShepherd (“Feedback”), Customer acknowledges and agrees that: (i)  the Feedback does not contain confidential or proprietary information and PayShepherd is not under any obligation of confidentiality with respect to the Feedback; and (ii) PayShepherd will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.
  4. Privacy
    To the extent Customer Data includes Personal Information: 

    (A) PayShepherd and Customer will each comply with the Privacy Law obligations applicable to its processing of Customer’s Personal Information.

    (B) PayShepherd will:
     
    1. only use Personal Information for the purposes of fulfilling PayShepherd's obligations and exercising its rights in accordance with the Agreement and as otherwise instructed by Customer in writing from time to time;

    2. not disclose any Personal Information to any third party without the prior written consent of Customer or except as permitted hereunder; 

    3. implement commercially reasonable physical, technical, administrative and other organizational measures designed to safeguard the Personal Information against loss, theft, damage, or unauthorized or unlawful access or processing;

    4. notify Customer as soon as reasonably practicable upon becoming aware of a breach of the security safeguards outlined in Section 4 (B)(c) above that results in the loss, theft, unauthorized access to or disclosure of Personal Information being processed by PayShepherd on behalf of Customer (“Security Incident”) and comply with all reasonable instructions of Customer in connection therewith. 

    5. enter into a written agreement with each subcontractor or third party (including any sub-processors) that has access to Personal Information that enable PayShepherd to comply with its obligations under this Section 4(B); and

    6. upon the termination of this Agreement, PayShepherd will comply with the retention and destruction requirements set out in Section 11(e) of this Agreement.

  5. Subcontracting; Sub-processing
    PayShepherd may engage third parties to provide the PayShepherd Solution or any part of them without Customer’s consent and without notice to Customer, notably with respect to any Professional Services and to ensure ongoing customer support and success.  The delegating or subcontracting of all or any part of PayShepherd’s obligations under this Agreement to any subcontractor will not relieve PayShepherd from any obligation or liability under this Agreement. Customer acknowledges and agrees that PayShepherd may engage its sub-processors to access and process Customer Data in connection with the PayShepherd Solution without the consent of Customer and without notice to Customer.  PayShepherd will, subject to any confidentiality provisions under this Agreement or otherwise imposed by PayShepherd, upon Customer’s request, make available to Customer a list of the sub-processors who are involved in processing or sub-processing of Customer Data in connection with the provision of the PayShepherd Solution together with a description of the nature of services provided by each sub-processor. PayShepherd will remain responsible for the performance of all or any part of its obligations under this Agreement performed by sub-processors, and for any act or omission by any sub-processors, to the same extent as if the performance, act, or omission was Closure’s performance, act, or omission.

  6. Customer User Account; Responsibility for Permitted Users
    1. In order for Customer to access and use the PayShepherd Platform, PayShepherd will issue one or more Administrator User Accounts to Customer that provides the Administrator User with the capability to: (i) create Employee User Accounts for its Employee Users; and(ii) issue links for Contractors to create their own Contractor Account. 

    2. Customer will ensure that a Permitted User only uses the PayShepherd Solution through the Permitted User’s assigned Customer User Account or Contractor Account. Customer will not allow any Permitted User to share a Customer User Account or a Contractor Account with any other person. Customer will promptly notify PayShepherd of any actual or suspected unauthorized use of the PayShepherd Solution. PayShepherd reserves the right to suspend, deactivate, or replace a Customer User Account or a Contractor Account if it determines that a Customer User Account may have been used for an unauthorized purpose. 

    3. As between PayShepherd and Customer, Customer will be responsible for:
       
      1. the accuracy, quality and legality of Customer Data and Contractor Data, the means by which Customer acquired Customer Data and Contractor Data, Customer’s use of applicable Customer Data within the PayShepherd Solution, and the interoperation of any Third Party Products or systems with the PayShepherd Solution. 

      2. ensuring that all transactions with Contractors are conducted exclusively through the PayShepherd Solution. For clarity and voidance of all doubt, in no event PayShepherd will be responsible for reconciling any transactions that occur outside the PayShepherd Solution, and such reconciliation work is not included in the Support Services. Should the Customer require reconciliation services for transactions made outside the PayShepherd Solution, PayShepherd may charge an additional fee for providing such services. 

      3. providing, at its own expense, all network access to the PayShepherd’s Platform, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the PayShepherd’s Platform or any other PayShepherd Property; 

      4. properly using the PayShepherd Solution and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; 

      5. using the PayShepherd Solution and any other PayShepherd Property in accordance with this Agreement and Applicable Laws; 

      6. ensuring that only Permitted Users access and use the PayShepherd’s Platform and other any PayShepherd Property pursuant to this Agreement; 

      7. ensuring that none of the Permitted Users bring or maintain any Claim against PayShepherd, its shareholders, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns in respect of any matter related to or in connection with the subject matter of this Agreement. Customer will be liable for any breach by a Permitted User of this Agreement; and 

      8. independently validating and reviewing and instructing its Permitted Users to independently review and validate the results and outputs of the PayShepherd Solution and verifying that such results and outputs are accurate and complete. 

  7. Third Party Licensed Technology.
    If the PayShepherd Solution contains or requires the use of Third Party Licensed Technology or other Third Party Products, Customer will accept and comply with the license terms applicable to such Third Party Licensed Technology. If Customer does not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then Customer should not install, access, or use such Third Party Licensed Technology. Any acquisition by Customer of Third Party Products, and any exchange of data between Customer and any such provider of Third Party Products is solely between Customer and the applicable Third Party Products provider. PayShepherd does not warrant or support Third Party Products, even if they are designated by PayShepherd as “certified” or otherwise recommended. PayShepherd cannot guarantee the continued availability of Third Party Products features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Products ceases to make the Third Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to PayShepherd. PayShepherd is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to Customer Data by such Third Party Products or their providers.

  8. Fees and Payment
    1. Fees.  Customer will pay to PayShepherd the fees described in any Order Form (the “Fees”).  Unless otherwise noted on an Order Form: (i) all Fees identified are payable in advance and in the currency set out in the Order Form (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the PayShepherd Solution exceeds the service capacity or Contractors’ numbers set forth on an Order Form or otherwise requires the payment of additional Fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional Fees in accordance with this Agreement. Notwithstanding anything to the contrary, the Fees will be calculated solely based on records maintained by PayShepherd. 

    2. Invoicing.  PayShepherd will prepare and send to Customer, at the then-current contact information on file with PayShepherd, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date. If Customer’s payment method is by credit card, Customer will complete and sign any additional online or paper authorizations requested by PayShepherd for this purpose.

    3. Disputed Invoices or Charges.  If Customer believes PayShepherd has charged or invoiced Customer incorrectly, Customer must contact PayShepherd no later than 30 days after having been charged by PayShepherd or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute. 

    4. Late Payment.  Customer may not withhold or setoff any amounts due under this Agreement.  Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Subject to Customer’s right to dispute Fees in good faith under Section 10(d), if Customer has not paid all due and undisputed Fees when such Fees become due,  and PayShepherd has provided at least ten (10) days written notice to Customer, PayShepherd may, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (a) suspend access to the PayShepherd Solution and any performance of other Services until all due and undisputed amounts are paid in full; or (b) terminate the Agreement immediately on notice, without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.

    5. Taxes.  The Fees do not include applicable sales, use, gross receipts, value-added, QST, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of PayShepherd.

    6. Suspension.  Any suspension of the PayShepherd Solution or Services by PayShepherd pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

  9. Confidential Information
    1. Definitions.  For the purposes of this Agreement, a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the Party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its Affiliates, and in the case of PayShepherd, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, PayShepherd Property, this Agreement and where Discloser is Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
        
    2. Confidentiality Covenants.  Recipient hereby agrees that during the Term and at all times following the Term it will:
       
      1. not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except: (A) if Recipient is Customer, to its own employees, Permitted Users, or such other recipients as PayShepherd may approve in writing; or (B) if Recipient is PayShepherd, to its and its Affiliate’s employees, contractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns, or such other recipients as Customer may approve in writing, provided that any person described in Section 11(b)(i)(A) or Section 11(b)(i)(B) must have a “need to know” for the purposes of receiving or providing the PayShepherd Solution and the Services, be informed of the confidential nature of the Confidential Information, be directed to hold the Confidential Information in confidence and agree in writing, or otherwise be legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement;

      2. not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; 

      3. not alter or remove from any Confidential Information of Discloser any proprietary legend; and

      4. maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.

    3. Exceptions to Confidentiality.  Notwithstanding Section 11(b), Recipient may disclose Discloser’s Confidential Information: 

      1. only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; 

      2. to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or 

      3. in the case of PayShepherd, to (A) potential assignees, acquirers or successors of PayShepherd if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of PayShepherd; (B) to its subcontractors and sub-processors to provide the PayShepherd Solution and the Services: or (C) as otherwise permitted in this Agreement.

    4. Injunction and other equitable relief.  Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 11 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 11 and to the specific enforcement of the terms of this Section 11, in addition to any other remedy to which Discloser would be entitled.

    5. Return of Confidential Information.  Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 15(b)) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, PayShepherd may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 11. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 11.

  10. Warranty; Disclaimer; Indemnities
    1. Customer Warranty.  Customer represents, warrants, and covenants to PayShepherd that: (i) Customer has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and will continue to have all necessary authority in and relating to the Customer Data and Contractor Data (including any Personal Information included therein), for PayShepherd to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including Privacy Laws and Anti-Spam Laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and will inform PayShepherd  immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon; (ii) Customer will not permit any Permitted User to access and use the PayShepherd Solution or other PayShepherd Property from Russia, China, or any country: (A) subject to any embargo or sanction by the United States or Canada; or (B) on the U.S. Department of the Treasury’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, the U.S. Department of Commerce Denied Persons List or Entity List, Canada control lists or any other restricted party lists; (iii) it will: (A) only send or cause or permit to be sent electronic communications, including commercial electronic messages (“CEMs”) related to the PayShepherd Solution in compliance with Anti-Spam Laws, and, without limiting the foregoing, only to recipients from whom Customer has obtained all necessary consents and provided all necessary notices and otherwise has all necessary authority as required by and in compliance with Applicable Laws, including Anti-Spam Laws, and (B) not send or cause or permit to be sent any CEMs on behalf of PayShepherd or that a recipient would reasonably believe have been sent on behalf of PayShepherd; and (iv) Customer will comply with Section 16(d) (Export Restrictions). Customer acknowledges and agrees that it (and not PayShepherd) will be the sender of any commercial electronic messages sent pursuant to this Agreement. Any template, sample or other notices provided to Customer by PayShepherd pursuant to this Agreement or otherwise are for reference only and PayShepherd does not represent that such templates, samples or notices are sufficient to meet Customer’s obligations under Applicable Laws. 

    2. DISCLAIMER.  PAYSHEPHERD DOES NOT WARRANT THAT THE PAYSHEPHERD SOLUTION AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED, INCLUDING ANY ERRORS RELATED TO THE DIGITALIZATION OF INVOICES OR OTHER PAYMENT DOCUMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PAYSHEPHERD SOLUTION AND THE SERVICES EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE PAYSHEPHERD SOLUTION AND THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY PAYSHEPHERD TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, PAYSHEPHERD HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PAYSHEPHERD EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PAYSHEPHERD SOLUTION OR THE SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. CUSTOMER UNDERSTANDS THAT THE NATURE OF THE PAYSHEPHERD SOLUTION AND THE SERVICES IS NOT INTENDED, AND CANNOT BE, RELIED UPON WITHOUT INDEPENDENT VERIFICATION. ACCORDINGLY, CUSTOMER AGREES THAT IT WILL INDEPENDENTLY VALIDATE AND INSTRUCT ITS PERMITTED USERS TO INDEPENDENTLY VALIDATE THE RESULTS OF PAYSHEPHERD SOLUTION OR THE SERVICES BEFORE RELYING ON SUCH RESULTS.

    3. Customer Indemnity. Customer will defend, indemnify and hold harmless PayShepherd, its Affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “PayShepherd Indemnitee”) from and against any and all Losses incurred by a PayShepherd Indemnitee arising out of or relating to any Claim by a third party (other than an Affiliate of a PayShepherd Indemnitee) that arise from or relate to: (i) Customer Data; (ii) unauthorized use of the PayShepherd Solution and the Services by Customer or any Permitted User; (iii) Customer’s breach of Sections 2(b), 6(b), 6(c), 12(a) or 16(d); (iv) Customer’s Gross Negligence or Wilful Misconduct or fraud; (v) use of the PayShepherd Solution or the Services (or any part of them) by Customer or any Permitted User in combination with any third party software, application or service; and (vi) Customer’s business, including the relationships between Customer and any of its Contractors or other contractors. Customer will not settle any Claim without the prior written consent of PayShepherd.

    4. PayShepherd Indemnity. PayShepherd will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any Claims by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Customer’s or Permitted Users’ authorized use of the PayShepherd Platform infringes any third-party Intellectual Property Right in Canada. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (A) incorporation of any PayShepherd Solution into, or any combination, operation, or use of any PayShepherd Solution with, any products or services not provided or authorized by PayShepherd; (B) modification of any PayShepherd Solution other than by PayShepherd or with PayShepherd's express written approval; (C) unauthorized use of the PayShepherd Solution; or (D) Losses covered by the Customer’s indemnity obligations in Section 12(c). THIS SECTION 12(d) IS PAYSHEPHERD'S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

    5. IP Remedy. If the PayShepherd Platform is, or in PayShepherd's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if Customer’s use of any PayShepherd Platform is enjoined or threatened to be enjoined, PayShepherd may, at its option and sole cost and expense:
       
      1. obtain the right for Customer to continue to use the affected PayShepherd Platform materially as contemplated by this Agreement;

      2. modify or replace PayShepherd Platform, in whole or in part, to seek to make the PayShepherd Platform (as so modified or replaced) non-infringing, in which case such modifications or replacements will constitute PayShepherd Platform under this Agreement; or

      3. if PayShepherd determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement, require Customer to immediately cease all use of PayShepherd Platform or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated PayShepherd Platform, if applicable.

      THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

    6. Indemnification Procedure.  Each Party will promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to this Section 12(f) The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12(f) will not relieve the Indemnitor of its indemnity obligations under this Section 12(f) except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

  11. Limitation of Liability
    The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
     
    1. AMOUNT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY (INCLUDING ANY PREVIOUSLY PAID LOSSES) OF PAYSHEPHERD IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER FOR THE PAYSHEPHERD PLATFORM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO THE LOSSES.       FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL PAYSHEPHERD'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. 

    2.  TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL PAYSHEPHERD BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, (v) REPUTATION OR (vi) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. 

      (A) AMOUNT. SUBJECT TO SECTION 13 (C), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE PAYSHEPHERD PLATFORM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL PAYSHEPHERD’ THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

      (B) TYPE. SUBJECT TO SECTION 13 (C), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, (v) REPUTATION OR (vi) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
       
  12. Insurance
    During the Term, PayShepherd will, at its own expense, maintain the following insurance coverage:
     
    1. General Liability Insurance. General liability insurance with limits for bodily injury, property damage liability, including tenants legal liability, personal injury, non-owned automobile, products and completed operations, waiver of subrogation, and employers liability of not less than $5,000,000 CAD per occurrence, and $5,000,000 CAD in aggregate;

    2. Errors and Omissions Insurance. Errors and omissions insurance of not less than $5,000,000 CAD in the aggregate and per occurrence; and

    3. Cyber Insurance. Cyber insurance for data breach and data loss/destruction of not less than $5,000,000 CAD per occurrence, and $5,000,000 CAD in aggregate, with sub limits of $250,000 CAD for computer fraud funds transfer loss and cyber extortion.

  13. Term and Termination
    1. Term and Order Form Term.
       
      1. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms have expired or have otherwise been terminated, unless earlier terminated pursuant to this Agreement (the “Term”). 

      2. Each Order Form will commence on the effective date set forth in such Order Form and each Order Form will continue to be in effect for the initial order form term set forth in the applicable Order Form (the “Order Form Initial Term”), unless terminated earlier in accordance with this Agreement. Except as otherwise specified in an Order Form, each  Order Form will renew for successive periods as  mutually agreed in writing between the Customer and PayShepherd (each a “Order Form Renewal Term”).  Any Order Forms agreed to by the Parties after the Effective Date will be conterminous with the Order Form Term of the Order Form in the cover pages hereof.

    2. Termination for Cause.
       
      1. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events: (A) the other Party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (B) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (C) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.

      2. Notwithstanding the foregoing, PayShepherd may terminate this Agreement immediately upon notice to Customer: (A) if Customer breaches Sections 2(b), 6(b), 6(c), 12(a),12(c), or 16(d); (B) as otherwise permitted in this Agreement; (C) if PayShepherd’s s relationship with a third-party service provider that provides servers, software or other technology that it uses to provide the PayShepherd Solution terminates or requires PayShepherd to change the way it provides the PayShepherd Solution; or (D) in order to comply with Applicable Law or requests from Governmental or Regulatory Authority.

      3. If this Agreement is terminated by Customer due to PayShepherd’s material breach pursuant to Section 13(b)(i)(A), PayShepherd will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement or Order Form. If this Agreement is terminated by PayShepherd pursuant to Section 13(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement and Customer will pay all remaining Fees for the rest of the then-current Order Form Term, and Term as applicable PayShepherd will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Order Form Term and Term as applicable, had it not been terminated.

    3. Effect of Termination.  Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date”):

        1. Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using PayShepherd Solution; 

        2. Customer will return any PayShepherd Property in its possession and certify in writing to PayShepherd that the PayShepherd Property has been returned; 

        3. no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate; and

        4. all Fees due and payable and any amounts due to PayShepherd are immediately due and are to be immediately paid by Customer to PayShepherd. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

    4. Survival.  The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights; ), Section 10 (Fees and Payment), Section 11 (Confidential Information), Section 12 (Warranty; Disclaimer; Indemnities), Section 13 (Limitation of Liabilities), Section 16 (General Provisions), Section 15(b) (Effect of Termination), and this Section 15(d) (Survival).

  14. General Provision
    1.  Notices.  Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to PayShepherd, to the following address:

      Project Recapture Inc. d.b.a PayShepherd
      Address: 330 5 Ave SW Suite 1800, Calgary, AB T2P 0L4, Canada     
      Attention: Chief Executive Officer     
      Email: contracts@payshepherd.com

    2. Assignment.  Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise without the prior written consent (which consent will not be unreasonably withheld or delayed).  Notwithstanding the foregoing: (i) PayShepherd may assign its rights and obligations under this Agreement to its Affiliate; and (ii) either Party may assign its rights and obligations under this Agreement in connection with a change of control, merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers or receives the services contemplated by this Agreement, so long as: (A) the assignee is not a competitor of PayShepherd or Customer, as applicable; (B) the assignee is bound by the terms of this Agreement; and (C) all undisputed past due Fees or any refunds or credits owed are paid in full (a “Permitted Assignment”).  As used in Section 16(b), a competitor for PayShepherd or Customer is any entity that may be reasonably construed as offering competitive functionality or services to those offered by the relevant Party. In the event of a Permitted Assignment, the assigning Party will provide notice of such assignment to the other Party with relevant documentation and sufficient evidence of the assignment.  In this case, under such Permitted Assignment, such assignee will have and may exercise all the rights, and will assume all of the obligations, of the assignor under this Agreement, except that the assignment will not release the assignee from liability for assignee’s obligations under this Agreement prior to such assignment. Any attempt by a Party to assign its rights or obligations under this Agreement, other than as permitted by this Section, will be void and of no effect. Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

    3. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, PayShepherd may: (i) seek remedies to collect unpaid Fees from Customer; and (ii) seek remedies with respect to a violation of PayShepherd’s Intellectual Property Rights or Section 11(Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 

    4. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.

    5. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the PayShepherd Solution (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections  2(b), 6(b), 6(c), 10, 12(a),12(c), or (d). In the event of any failure or delay caused by a Force Majeure event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure event.

    6. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

    7. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

    8. Customer Lists. PayShepherd may identify Customer by name and logo as a PayShepherd’s customer on PayShepherd's website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

    9. Independent Contractors. PayShepherd’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

    10. Entire Agreement. This Agreement (including all Order Forms), constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, including those appearing in or mentioned in the Order Form as the case may be, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the PayShepherd Solution or the Services; and (ii) do not override or form a part of this Agreement (including any Order Forms).

    11. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.

    12. Further Assurances. Each Party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

    13. Third Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto other than PayShepherd’s licensors and the Indemnitee or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement.

    14. Counterparts. This Agreement may be validly executed by facsimile or electronic transmission and in counterparts, which taken together will constitute one and the same agreement and each of which will constitute an original.