Terms of service
BENJI PAYS
TERMS OF SERVICE
Last Updated: May 22, 2024
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST CEASE ALL ACCESS AND USE OF ANY OF THE SERVICES IMMEDIATELY.
Welcome to the Benji Pays Terms of Service (the “Agreement”). This Agreement is between Benji Pays Solutions Inc. (“Benji Pays”, “us”, “we” or “our”), the owner and operator of https://benjipays.com/ (the “Site”) and our payment management platform accessible thereon (the “Platform”), and you (“you”, “your” or “user”), a user of the Site and/or the Platform (together, the “Services”). This Agreement governs your access and use of the Services as:
(a) a visitor to the Site;
(b) a business that has connected its accounting software, CRM system, ERP system and/or other software system (the “Merchant System”) to the Platform (a “Merchant”);
(c) a customer or client of a Merchant (the “End Customer”), who may receive access to certain links to manage its accounts with the Merchant through the Platform (the “Access Links”), including:
(i) a link to provide payment details;
(ii) a link to pay a Merchant invoice; and/or
(iii) a link to log-in to a Merchant’s customer portal on the Platform (the “Customer Portal”);
(d) an employee, contractor, representative or agent of a Merchant or End Customer that accesses or uses the Platform, subject to the terms and conditions of this Agreement (an “Authorized User”).
For certainty, you accept this Agreement on behalf of yourself as an individual user, and/or on behalf of a Merchant or End Customer that you represent, as the case may be. Without limiting anything in this Agreement, if you connect a Merchant System to the Platform (a “Connecting Event”), or if you accept an Access Link (an “Acceptance Event”), then: (A) in the case of the Connecting Event, you will be deemed to be the authorized representative of the Merchant to whom such Merchant System is linked, and in the case of an Acceptance Event, you will be deemed to be the authorized representative of the End Customer to whom such Access Link was sent; and (B) you represent and warrant to Benji Pays that you have the right, power and authority, and hold all necessary authorizations from such Merchant or End Customer to: (I) in the case of a Merchant, connect its Merchant System to the Platform; (II) in the case of an End Customer, accept and use the Access Link and the Platform features and functions accessible thereby; (III) accept this Agreement on behalf of such Merchant or End Customer, as applicable; and (IV) bind the Merchant or End Customer to this Agreement, as applicable. In any event, and without limiting anything in this Agreement (such as a deemed acceptance by any other method of access or use of the Services), Merchants will be deemed to have accepted this Agreement upon a Connecting Event, and End Customers will be deemed to have accepted this Agreement upon an Acceptance Event.
This Agreement incorporates by reference the Privacy Policy posted by us on our Site, and any other policies posted by us on our Site from time to time and expressly referencing this Agreement (together, the “Policies”). If you are bound by a written and signed service agreement with Benji Pays (the “Signed Agreement”), then this Agreement will apply to your access and use of the Services only to the extent that such access and use is not already governed by the Signed Agreement.
1. Amendments to this Agreement
Benji Pays may amend this Agreement without notice or consent at any time and from time to time by posting the amended Agreement on the Site. You can determine when this Agreement was last amended by referring to the “Last Updated” reference expressly provided above. Your continued access or use of our Services constitutes your acceptance of the amended Agreement.
2. Service Modifications
Benji Pays reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Benji Pays will not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
3. User Account
(a) Account Creation.
(i) Merchants must create a user account in order to access and use the Platform (an “Account”). Merchants may permit their Authorized Users to access and use the Platform subject to: (i) this Agreement; and (ii) any maximum number of Authorized Users specified at the time of purchase of your subscription plan (the “Subscription Plan”).
(ii) End Customers are not required to create an Account. End Customers can access and use the Platform through the Access Links provided to them and their Authorized Users.
(iii) Without limiting anything in this Agreement, Merchants and End Customers will at all times be responsible for all acts and omissions of their Authorized Users in connection with the Platform and their Accounts, as the case may be. However, for certainty, the foregoing will not in any way limit each Authorized User’s responsibility to comply with this Agreement on their own behalf.
(b) Confidentiality & Updates. You agree to keep your Account information, including your Account password and login (the “Account Information”), confidential. You also agree to keep your Account Information current, and you will promptly notify us of any changes thereto.
(c) Merchant System. Subject to this Agreement, Merchants may connect their Merchant System to the Platform. Benji Pays will not be responsible for any incompatibility or inability to establish a connection between the Merchant System and the Platform. Certain software may not be compatible with the Platform without additional third-party installations, and you are responsible for obtaining same. Benji Pays is not responsible for third-party software, hardware or the installations of any sort. When connecting the Merchant System to the Platform, you authorize us to retrieve information about you and your business from the providers of such Merchant System, including QuickBooks and Xero, and you authorize and direct those third parties to compile and provide to us the information we request.
(d) Connecting Equipment. Users are solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, to access, or to otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Connecting Equipment”). For certainty, Benji Pays will in no event be responsible for the quality or function of any Connecting Equipment, even after such Connecting Equipment has been connected to the Platform, or otherwise. Users will also be responsible for maintaining the security of the Connecting Equipment, your Account, your passwords (including your Account password), and for all uses of your Account or the Connecting Equipment with or without your knowledge or consent.
4. Platform Use
(a) If you are a Merchant, you understand and agree that:
(i) Benji Pays is not a provider of credit card processing merchant accounts. Benji Pays processes transactions on your behalf through your existing merchant account by way of our Platform’s automated system. In order to use the Platform, you must have an existing merchant account with a supported merchant provider, and you must continue to pay processing fees to your merchant account provider as per your agreement with them. You consent to Benji Pays processing credit card payments on your behalf through your payment provider with the credentials that you have provided to us.
(ii) The fees charged by Benji Pays are for the automated service of processing transactions on your behalf and not a replacement for any merchant account fees that you incur from your merchant account provider. You further understand and agree that you will continue to pay fees to your merchant account provider and are fully responsible for those fees. Benji Pays is in no way responsible or liable for any incurred fees from your merchant account provider.
(b) In accessing or using the Services, users must not:
(i) use the Services outside of their ordinary intended use, as determined by us in our sole discretion from time to time;
(ii) use any automated software program (bots), spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to create Accounts or otherwise access and use our Services for any purpose, except with our prior written consent;
(iii) breach or circumvent any laws or any third-party rights;
(iv) use our Services if you are not able to form legally binding contracts (i.e., lacking legal capacity with respect to age, mental capacity or other factor), or are temporarily or indefinitely suspended from using our Services;
(v) transfer your Account to another party without our prior written consent;
(vi) distribute viruses or any other technologies that may harm the Services;
(vii) interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
(viii) infringe the copyright, trademark, patent, publicity, moral, database and/or other intellectual property rights (collectively “Intellectual Property Rights”) that belong to or are licensed to Benji Pays. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Benji Pays or third parties;
(ix) infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services;
(x) circumvent any technical measures we use to provide the Services or take any action to violate, interfere with or undermine the security or system integrity of the Services;
(xi) reproduce, copy, modify, adapt, exploit for commercial purposes, license, sublicense, distribute, transmit, translate, or create derivative works of, the Services or the content therein or any part thereof except with the prior written consent of Benji Pays or in the ordinary and prescribed use of the Services; or
(xii) take any action that would damage, harm, or diminish Benji Pay’s reputation, goodwill, or public image.
If we determine, in our sole discretion, that you are abusing the Services or failing to comply with the terms of this Agreement, we may, without limiting any other available remedies herein or under applicable law, limit, suspend or terminate your Account and access to our Services, and take technical and/or legal steps to prevent you from using our Services.
5. Fees and Billing
As a new Merchant:
(a) You are billed and you agree to pay: (i) a base monthly amount, in advance of the then-current month, on the 1st day of such month; or (ii) a base annual amount in advance for the year. On the 1st day of each month (including for those Merchants who are billed annually), any overages on your Account will also be billed to you based on the applicable overage pricing per transaction.
(b) Your invoice will be charged to the credit card or other payment method that you have provided on the 1st of the month. If your card or payment method is declined, you will be notified by email and by notifications on the Site when you log-in to your Account that you need to update your payment information. In such case, we will continue providing services for up to seven (7) days. If after seven (7) days your card or payment method is still not able to be successfully charged, then we will suspend your payment processing until such time that you update your billing information.
(c) Our pricing and the structure of our monthly and annual plans may be changed at any time upon providing you with thirty (30) days’ notice by email to the email address used to register your Benji Pays Account. All fees are exclusive of taxes and are subject to taxes imposed by tax authorities.
(d) Interest will accrue on overdue amounts at a rate of 1.5 percent per month (18 percent per annum), compounded annually. You agree to pay all costs and expenses of Benji Pays in connection with collection of overdue amounts, including reasonable legal fees on a solicitor-client basis.
(e) Refunds are determined on a case-by-case basis at our sole discretion. If you are not satisfied with our Platform, please contact us within thirty (30) days of your invoice to request a refund review. Requests made past the thirty (30) days of an invoice will not be approved.
6. User Disputes
Benji Pays does not guarantee any results from the use of the Platform, and Benji Pays will not be responsible for the late payment or non-payment of any Merchant invoices by End Customers. In the event of any dispute among Merchants and End Customers, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from any claims, demands and damages (actual and otherwise) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. To the maximum extent permitted by law, in entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favour at the time of agreeing to this release.
7. User Information
You represent and warrant that, for all information that you provide or make available to the Services, directly or indirectly, including, as may be applicable, Account Information (together, the “User Information”):
(a) you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement;
(b) all such User Information is accurate and complete; and
(c) the use of any such User Information by us, or others in contract with us, for the purposes of providing the Services does not and will not infringe any Intellectual Property Rights, privacy rights or contractual rights of any third party.
For certainty, and without limiting the foregoing, as a Merchant, you acknowledge and agree that:
(i) you are authorized to provide the necessary access information to Benji Pays so that we may process transactions on your behalf through your existing merchant account;
(ii) you consent to Benji Pays accessing your Merchant System on your behalf in order to obtain records, including invoices, customer information, payment information and your chart of account, in connection with the provision of the Services; and
(iii) you consent to Benji Pays contacting your End Customers in connection with our provision of the Services.
8. Our Content
The content contained on the Services, including the text, graphics, images, audio, video and other material, as well as the taglines and look-and-feel (collectively, the “Content”), is protected by copyright, trademark and other such intellectual property laws in Canada, the United States and foreign countries, and is owned or controlled by Benji Pays or by third parties that have licensed their Content to Benji Pays. Unauthorized use of the Content by you may violate copyright, trademark, and other intellectual property laws.
The trademarks, logos and service marks (the “Marks”) displayed on the Services, and which may be included with the Content, are owned by Benji Pays or third-party licensors. Except as otherwise expressly provided by Benji Pays in writing, you are prohibited from using such Marks without prior written permission from Benji Pays or such applicable third party in each instance.
For certainty, Benji Pays retains all right, title and interest in and to the Content and the Marks.
9. Disclaimers and Liability Limitation
THE SERVICES, WHICH FOR CERTAINTY INCLUDE THE SITE, THE PLATFORM, THE CUSTOMER PORTAL, AND ALL OTHER FEATURES AND FUNCTIONS OF THE PLATFORM, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT DEFECT, ERRORS, INTERRUPTION, OR DOWNTIME. BY USING OUR SERVICES, YOU AGREE THAT BENJI PAYS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES, AND ASSIGNS ARE NOT LIABLE FOR ANY LOSS, HARM, DAMAGE, COST, OR INJURY SUFFERED (INCLUDING ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) IN CONNECTION WITH YOUR ACCESSING, USING, OR THE INABILITY TO ACCESS, OR USE, THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU AGREE THAT BENJI PAYS IS NOT RESPONSIBLE OR LIABLE FOR YOUR ACTIONS OR JUDGMENTS IN CONNECTION WITH SAME. BENJI PAYS IS NOT RESPONSIBLE FOR THE ACTIONS OR OMISSIONS OF THIRD PARTIES.
IN ADDITION, WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE (INCLUDING OUR AFFILIATES, AND OUR AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD US RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OTHER INTANGIBLE LOSSES, OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) ARISING OR RESULTING DIRECTLY OR INDIRECTLY FROM:
(a) THE INFORMATION THAT YOU PROVIDE (DIRECTLY OR INDIRECTLY) WHEN USING THE SERVICES; OR
(b) THE THIRD-PARTY MATERIALS THAT YOU ACCESS OR USE (DIRECTLY OR INDIRECTLY) IN CONNECTION WITH THE SERVICES.
WITHOUT LIMITING ANY OF THE FOREGOING, AND IN ANY EVENT, BENJI PAY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED TWO (2) TIMES THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SERVICES IN THE TWO (2) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMISSABLE UNDER APPLICABLE LAW.
10. Third-Party Materials
The Services may contain links to third party websites, applications, products or services (together, the “Third-Party Materials”) that are not owned, maintained or operated by Benji Pays. In addition, Merchants may connect certain Third-Party Materials, such as Merchant Systems, to the Platform. In any event, Benji Pays is not responsible for such Third-Party Materials and does not make any representations, warranties or guarantees regarding Third-Party Materials whatsoever. For certainty, Benji Pays disclaims any liability associated with your access to, use of, download of, or reliance on, such Third-Party Materials. Your access, use and/or download of any such Third-Party Materials is at your sole risk.
11. Term and Termination
This Agreement takes effect on your first access or use of the Services and continues until (a) your Subscription Plan terminates, as applicable, or (b) your use of the Services ceases, whichever is later. Merchants may permanently discontinue our Services at any time by disabling the “Auto Processing” in your settings in your Account, disconnecting your Merchant System from the Platform, and contacting us at our support email to request that your Account be closed.
The provisions of this Agreement which by their nature are intended to survive any termination of this Agreement will survive any such termination, including: Section 5 (Fees and Billing), Section 6 (User Disputes), Section 7 (User Information), Section 9 (Disclaimer and Liability Limitation), Section 10 (Third-Party Materials), Section 12 (Indemnity), Section 13 (Reliance) and Section 14 (General).
12. Indemnity
You agree to defend, indemnify, and hold harmless Benji Pays and its affiliates, and each of their officers, directors, employees and agents, from and against any and all claims, actions, demands or losses, including reasonable legal and accounting fees, arising from or in any way relating to your breach of or noncompliance with of this Agreement.
13. Reliance
You understand and agree that Benji Pays is making the Services available to you in reliance upon the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein and that the same form an essential basis of the contract between you and Benji Pays. You agree that the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination of this Agreement.
14. General
(a) Entire Agreement. This Agreement, which incorporates the Policies, and any Signed Agreement as may be in effect from time to time, constitute the entire agreement between you and Benji Pays with respect to the subject matter contained herein and there are no other terms, conditions, representations, warranties, or collateral agreements, express or implied. To the extent of any conflict, the following order of precedence will apply in descending order: (i) the Signed Agreement; (ii) this Agreement; and (iii) the Policies.
(b) Force Majeure. Any delay or non-performance by Benji Pays of any duties or obligations hereunder will not be considered a breach of this Agreement if such delay or non-performance is caused by circumstances beyond our control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, war, acts of terror, strikes or other labor problems (other than those involving our employees), failures of common carriers (including Internet service providers), or denial of service attacks.
(c) Assignment. Benji Pays may assign this Agreement and all your consents contained herein, in whole, or in part, at any time, with or without notice to you. You may not assign your rights or delegate your duties under this Agreement, either in whole or in part, without Benji Pay’s prior written consent in each instance. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs and permitted assigns.
(d) Non-Waiver. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. Waivers will not be effective unless in writing and duly authorized by an officer of Benji Pays.
(e) Severability. In the event that a court of competent jurisdiction determines that any provision(s) of this Agreement (or parts thereof) are invalid or unenforceable (the “Impugned Provisions”): (i) the Impugned Provisions will not affect the validity or enforceability of any other provisions of this Agreement, which will remain in full force and effect; and (ii) to the maximum extent permitted by applicable law, the Impugned Provisions will be deemed to be amended such that they accomplish their original intent as closely as possible while remaining compliant with applicable law.
(f) Interpretation. This Agreement was written in the English language. If this Agreement is translated into another language, the English language text will in any event prevail. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing gender include all genders. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.
(g) Governing Law. This Agreement is governed and interpreted pursuant to the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to principles of conflicts of law that would impose the law of another jurisdiction. You agree to submit to the exclusive jurisdiction of the courts located within the Province of British Columbia, Canada. The foregoing will not limit Benji Pay’s right to enforce this Agreement in any other jurisdiction if reasonably necessary or advisable in our sole discretion.
(h) Trial Waiver. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE TO WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY, OR COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST US RELATED TO THE SERVICES AND/OR THIS AGREEMENT.