Date last modified: April 30, 2010

Your use of HPCI is subject at all times to these Terms of Use (the “Terms of Use”), as well as the Privacy and Security Policy (the “Privacy Policy”), which together constitute an agreement (the “Agreement”) between you and 2138617 Ontario Inc., dba HostedPCI, (“HPCI”) regarding your use of the payment processing management and hosted security application offered by HPCI.

1. Description of the HPCI Application.

HPCI provides its web-based payment processing management and hosted security application (the “HPCI Application”) as a service, through its website found at www.hostedpci.com. We may update, improve, or extend the HPCI Application from time to time, and it may include online training, user manuals, guides or other written informational material, which we also make available to you from time to time through our website. The term “we” means 2138617 Ontario Inc., which owns and provides the HPCI Application.

2. Accepting the Terms of Use and Establishing an Account.

You accept these Terms of Use and agree to be bound by this Agreement (i) by clicking on the “I accept” box at the time you create a HPCI username and password; (ii) by browsing the information available on our website; or (iii) by beginning to use the HPCI Application, whichever occurs first. The terms “your” and “your” (and related words) mean any person or business entity who accesses the HPCI website or who seeks to use the HPCI Application through our website. If you wish to use the HPCI Application, you must create a unique user account on the subscription page on our website, which you can find from a link on our home page at www.hostedpci.com. If you create an account on behalf of a company or entity, you represent that you are authorized to act on behalf of that company or entity.

3. HPCI Accounts and Payment for Premium Services.

3.1 Establishing a HPCI Account. To create an account, you will select a unique username and password that will be used to access the HPCI Application. Your username and password must be approved by HPCI, and we may refuse to approve a username or password at our sole discretion.

3.2 Free HPCI Account. There is no monthly minimum charge for establishing a HPCI Account with one authorized username and password.

3.3 Selecting HPCI Services. All Authorized Users must be (i) 18 years old or older. Account owners also may select one or more services we offer from time to time for additional fees (the HPCI “Services”), as described on the [Pricing Options] page at www.hostedpci.com. A valid credit card account or bank account for automatic clearing must be provided to HPCI in order to activate any Services.

3.4 Payment for Security Services. There is no fee for creating a user account to access the HPCI Application. HPCI will assess a fee for each active gateway connection profile that has been established for your HPCI account, pursuant to the Services fee schedule on the Pricing Options page at www.hostedpci.com. Services are billed on a monthly cycle, in arrears, based on actual transaction activity. All invoices are due and payable immediately in Canadian Dollars unless in another agreed upon currency, in some cases, via an automatic debit to the account owner’s credit card or bank account on file at the time of the billing cycle, which will occur within three (3) days after the end of a billing cycle. If HPCI does not receive payment within 90 days of the invoice date, your data may be removed and purged permanently. We may change the fees charged for additional Services, by posting the new fees on the Pricing Options page. Any such changes will be applicable to your account as of the next invoice date, which shall be a minimum of thirty (30) days after the effective date of the price change. All charges are final and no refund is issued for services already provided

4. Access to the HPCI Application.

4.1 Access to HPCI Application through Designated URL. We will make the HPCI Application accessible from a URL you have selected through our signup page, in the form of https://***** (the “Application URL”). Your selection of an Application URL is subject to our review and acceptance, and we reserve the right to reject a requested Application URL for any reason, including but not limited to the reason that such requested URL has already been selected or is too similar to an Application URL already selected by another HPCI user. You agree not to access or attempt to access the HPCI Application by any means other than through the Application URL.

4.2 Interruptions of Service. The HPCI Application may be unavailable when we may make periodic upgrades or perform scheduled maintenance. HPCI has the right to update the processes from time to time as required or mandated by the PCI-DSS document and auditor or to announce maintenance windows to keep the HPCI Application up to date with necessary security patches. We will use reasonable efforts to alert Authorized Users to scheduled upgrade or maintenance interruptions, but we make no warranties or guarantees of continuous or uninterrupted service.

4.3 Control of Access. You agree to keep confidential and not disclose to any third parties any usernames, passwords and account numbers associated with the HPCI Application. You shall promptly notify us if you learn of a security breach related to your account, or if a username or password associated with your account is compromised in any way.

4.4 No Interference. You will not attempt to gain access to any portion of our systems or networks in any way that is not necessary for you to use the HPCI Application. Thus, by way of example but without limitation:

1. You may not access, attempt to access, or use the account or data of any HPCI account (or any portion of that account or data) if you are not an Authorized User with respect to that account.
2. You may not access or use the HPCI Application from any unauthorized software or network, or attempt to modify or reroute the HPCI Application or combine it with any other software, product, service, or system.
3. You may not provide any of HPCI’s competitors with access of any kind to the HPCI Application.
4. You may not copy, modify, distribute, or publicly display any portion of the HPCI Application or its underlying software.
5. You may not license, rent, lease, sell, transfer, assign, distribute, display, host, outsource, or otherwise commercially exploit or make available the HPCI Application, including on a time-share, service-bureau, or similar basis, to any third party other than an Authorized User.
6. You may not create Internet links to the HPCI Application which include log-in information (including but not limited to usernames, passwords, and secure cookies), or “mirror” or “frame” any part of the HPCI Application without our consent.
7. You may not make any efforts to reverse engineer or reverse compile the HPCI Application or underlying software or otherwise attempt to derive any source code, algorithms, program structure, or other trade-secret information therefrom, or allow any third party to do so, except to the extent such a restriction is expressly prohibited under applicable local law.
8. You may not use any robot, spider, scraper, deep link or similar automated data gathering algorithm, tools, methodology or system to access, copy, monitor, the HPCI Application or the HPCI website without our express written consent.
9. You may not use any engine, software, tool, mechanism, algorithm, agent or device, including but not limited to robots, spiders, intelligent agents, to search or access the HPCI website except for a generally available third-party web browser application including Internet Explorer, Firefox and Safari.
10. You may not post or transmit to any HPCI website any files containing viruses, worms, or other contaminating or destructive elements or otherwise seek to interfere with the operation of the HPCI Application.

5. Permitted Use and Restrictions on Use.

5.1 Permitted Use. You and all your Authorized Users may use the HPCI Application only for the purpose of sales, customer management, ecommerce, reporting and management activities related to your own business, in accordance with all the terms and conditions of this Agreement. You agree that each of your Authorized Users similarly will abide by all restrictions on use set forth in this Section 5 and all other terms and conditions of this Agreement. You may begin using the HPCI Application as soon as we have approved the username, password and Application URL you have selected and you and your Authorized Users may continue using it as long as the HPCI Application may be made available to Authorized Users, subject to the restrictions on use set and all additional terms and conditions of this Agreement.

5.2 No Wrongful Use. You agree to use the HPCI Application only for authorized, legal and ethical purposes, consistent with all applicable laws, regulations, and the rights of others, and only for the permitted use described above. You may not use the HPCI Application in any manner that harms, or is likely to harm, HPCI, Inc., or any of our subscribers, suppliers, affiliates, resellers, or other business partners. Without limiting the foregoing, you are specifically prohibited from using the HPCI Application:

1. To damage, disable, overburden or impair our service (or the networks connected to our service) or to interfere with anyone’s authorized use of the HPCI Application;
2. To engage in or further any fraudulent, deceptive, or otherwise unlawful practices, including but not limited to tax evasion, money laundering or the conduct of any business for which you have not obtained all necessary licenses, permits and other approvals;
3. To engage in any activities that violate or infringe upon the rights of any third party (including but not limited to intellectual property rights, publicity rights and privacy rights);
4. To promote or support violent or threatening actions; illegal or harmful activities, substances, goods or services; or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
5. To transmit any bulk unsolicited commercial communications;
6. To engage in communications with any obscene, offensive, defamatory, slanderous, libelous or hateful material or themes;
7. In circumstances where system unavailability, errors, or other anomalies could result in property damage, bodily injury or death.

6. Disclaimer of Warranties; Limitation of Liabilities.

6.1 Disclaimer of Warranties. THE HPCI APPLICATION IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HPCI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HPCI EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE HPCI APPLICATION WILL BE FREE FROM ERRORS, DELAYS OR INTERRUPTIONS, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE HPCI APPLICATION WILL MEET YOUR REQUIREMENTS. WE MAY UPDATE, IMPROVE, OR OTHERWISE MODIFY THE HPCI APPLICATION (OR ANY OF ITS INDIVIDUAL FEATURES OR FUNCTIONALITIES) AT ANY TIME AS WE SEE FIT IN OUR SOLE DISCRETION. HPCI IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL WHATSOEVER.

6.2 Disclaimer of Warranties or Representation Regarding Legal or Accounting Compliance and Similar Matters. HPCI AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES. IF LEGAL OR ACCOUNTING ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, YOU SHOULD SEEK THE SERVICES OF A COMPETENT PROFESSIONAL. WE EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE HPCI APPLICATION WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS OR WILL OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LOCAL, STATE, FEDERAL, NATIONAL OR INTERNATIONAL LAWS OR REGULATIONS (COLLECTIVELY, “APPLICABLE LAWS”). YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE HPCI APPLICATION IS IN ACCORDANCE WITH APPLICABLE LAWS. IT IS YOUR RESPONSIBILITY TO BE AND REMAIN INFORMED REGARDING ALL APPLICABLE LAWS AND ACCOUNTING AND OTHER PRACTICES THAT AFFECT YOUR BUSINESS.

6.3 Disclaimer of Warranty of Continuous Operation. You acknowledge that the HPCI Application may be inaccessible, unavailable or inoperable from time to time for any reason whatsoever, including but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that HPCI may undertake from time to time; or (iii) causes beyond the control of HPCI or that are not reasonably foreseeable by HPCI, including without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation or inaccessibility of websites or interfaces, network congestion, or other failures. You further acknowledge and agree that (i) We have no control over the availability of the HPCI Application on a continuous or uninterrupted basis; (ii) We are not responsible for the functionality of any third-party website, interface, or link; (iii) The terms of this Agreement are subject to the limitations of our hardware, software and bandwidth; and (iv) Our failure to make the HPCI Application available because of technical difficulties or for any reason out of our control does not amount to a failure to meet the obligations or result in a breach by HPCI of this Agreement, and you expressly waive all right to dispute such failure.

6.4 No Responsibility for User Communications. We have no obligation to monitor or police communications or data transmitted through the HPCI Application and we will not be responsible for the content of any such communications or transmissions. You are responsible for the content of any communications and data that you transmit, upload or post through the HPCI Application.

6.5 Limitation on Disclaimer of Warranties. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

6.6 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL HPCI BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOSSES, COSTS OR EXPENSES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INTERRUPTION OF BUSINESS (EVEN IF HPCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL THE TOTAL OBLIGATIONS OR LIABILITY OF HPCI HEREUNDER EXCEED $500. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST HPCI MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
7. Additional Authorized User Responsibilities.

7.1 Internet Connectivity. [In order to use the HPCI Application you will need Internet connectivity, a web browser and a security socket layer (SSL) certificate for at least 128 bit encryption. The HPCI Application currently is configured for use on any one of these browsers; Internet Explorer, Firefox, Chrome or Safari. You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the HPCI Application, including, without limitation, any and all costs, fees, expenses and taxes of any kind relating to the foregoing.]

7.2 Accuracy of Registration Data, Cooperation, Assistance. You understand that our ability to provide the HPCI Application depends in part on the information and cooperation that we receive from you. Accordingly, you agree promptly to update Registration Data as necessary to keep it accurate, current and complete at all times. In addition, you agree to provide us with such information and cooperation as we may reasonably require in performing our duties under this Agreement.

7.3 Username and Password Control; Notification. Our ability to provide the HPCI Application to you depends on the integrity and your proper use of your account. Accordingly, you agree that: (i) you will not allow access to or use of the HPCI Application (or any portion thereof) by anyone other than Authorized Users or for any purpose prohibited under this Agreement; (ii) you will ensure that all Authorized Users comply with the terms and conditions of this Agreement; and (iii) you will be responsible for any violation of this Agreement by any Authorized User, and for any unauthorized use of the usernames, passwords, or other security credentials associated with your account. You further agree to notify us promptly if you become aware of any loss or theft or unauthorized use of any of your passwords, usernames, and/or account number, or of any other suspected or alleged violation of this Agreement, and you will cooperate with us in any investigation or enforcement efforts. In addition, you agree to maintain current and accurate information regarding the identity of each Authorized User (and their corresponding username and password), and you agree to make that information available to us upon request for purposes of enabling us to provide the HPCI Application and to enforce the terms of this Agreement. Without limiting any of our other rights and remedies, we may suspend or terminate any Authorized User’s access to the HPCI Application upon notice to you in the event we determine that the Authorized User has violated the terms of this Agreement. We will communicate with you by email to the email address you provide. It is your responsibility to update or modify that email address as may be needed so that communications may be sent to you.
8. Ownership Rights.

8.1 Your User Data. When you use the HPCI Application, you will be providing us with information, accounts, data, and other information and materials pertaining to your business, including PAN numbers (referred to here as your “User Data”). We acknowledge that your User Data belongs to you and that we are holding it in trust. When you submit any User Data to HPCI, you represent that you have all necessary rights in and to that User Data and you hereby grant us a license to use your User Data, solely for the purpose of making the HPCI Application available to you and your Authorized Users. When the Service is cancelled, all User Data will be delivered to the you via secure delivery to the person assigned by two officers or directors of your business. Your business must be PCI-DSS compliant before you can accept the User Data, including, specifically, the PAN numbers. A photo identity and PCI compliance documentation will be required for the person accepting the delivery on behalf of your business. Any applicable charges for the courier and delivery will be paid by you in advance.
8.2 HPCI Ownership and Intellectual Property Rights.

1. The HPCI Application, the software and other resources used to provide the HPCI Application (and all copies of such software or other resources), and all associated intellectual property rights belong exclusively to HPCI, Inc. and its licensors (the “HPCI Property”). Nothing in this Agreement gives you any rights with respect to the HPCI Property except for the access and usage rights expressly granted above.
2. Except as permitted by this Agreement, neither the HPCI Property nor any materials, assistance, instructions, or information that we provide in relation to any HPCI Property (whether provided verbally, in writing, electronically or otherwise), may be copied, reproduced, modified, distributed, republished, displayed, posted, or transmitted in any form or by any means, in whole or in part, nor may you make any efforts to derive any source code, algorithms, program structure, or other trade-secret information therefrom, or allow any third party to do so, except to the extent such a restriction is expressly prohibited under applicable law.
3. Nothing in this Agreement limits any rights that we may have under any trade secret, copyright, patent or other laws. Without limiting the foregoing, we will have the right to specific performance with respect to your obligations under this Section 7.

9. License to Use Feedback-related Content.

We may provide you with a mechanism to provide feedback, suggestions, and ideas about our products and services (“Feedback”). You agree that we may, in our sole discretion, use the Feedback you provide us in any way, including in future modifications of the HPCI Application and in any multimedia works and/or advertising and promotional materials relating thereto. When you submit any Feedback to HPCI you may not post or transmit any message that is defamatory or libelous, or which discloses private or confidential information of any third party. You may not post or transmit any message or information that is obscene, pornographic, harassing, hateful, threatening, abusive, racially or ethnically offensive, or that encourages conduct that would be a criminal offense or other confidential or proprietary information of third parties that you do not have authorization to post or transmit. You hereby grant us a perpetual worldwide fully transferable non-revocable royalty-free license to use, reproduce, modify, create derivate works from, distribute, display and commercialize any materials, information and ideas you provide to us in the Feedback. We agree not to disclose your identity as the source of the Feedback other than to our employees, consultants, and advisors who are bound by confidentiality obligations, unless we have your permission to disclose it.
10. Privacy and Security.

Please review the HPCI Privacy and Security Policy, which can be found at www.hostedpci.com and which is incorporated into this Agreement by this reference. We will respect the privacy and confidentiality of your User Data, as described in our Privacy and Security Policy. We also understand the importance of protecting the security of your User Data and agree to the practices set forth in the Privacy and Security Policy regarding data security.

Our Privacy and Security Policy may be amended from time to time and posted in its amended form to our website. You will be deemed to agree to and accept the terms and conditions of this policy as last amended and you acknowledge that it is your responsibility to stay informed of changes to, our Privacy Policy and Security Policy.
11. Indemnification.

You will defend, indemnify and hold harmless HPCI, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with (a) any breach by you of this Agreement or (b) any third-party claim that (i) a third party has suffered injury, damage or loss resulting from your or an Authorized User’s use of the HPCI Application; or (ii) you or any Authorized User have used the HPCI Application (or have allowed any other person to use the HPCI Application) in a manner that violates any term or condition of this Agreement. We will provide you with prompt written notice of any such claim, and we will cooperate with you and provide you with all reasonably available information and assistance, at your expense, in the defense and settlement of such claim.

12. Termination.

12.1 Termination by You. You agree to be bound by these terms and conditions until you close your account with HPCI or until we terminate your account. You may cancel your account upon providing us with one month’s prior written notice. Once your HPCI account has been canceled, we will delete all of your User Data unless other arrangements have been made for storing the User Data for you, [as described under “terminating your account”.]

12.2 Downgrading your account. You may cancel a Service at any time, by following the instructions found under the heading “terminating Services” after you sign into the HPCI Application. Changes to billing will be reflected as of the next complete billing cycle; we will not prorate Services for partial monthly periods. We may temporarily suspend or and we may terminate all Services associated with your account, if any invoice remains unpaid for more than 30 days.

12.3 Termination by HPCI. We may terminate your account at any time without notice if: (a) you have breached any provision of this Agreement or, (b) if we believe in our sole discretion that we are required by law to terminate your account. We may terminate your account at any time in our own discretion on 30 days’ written notice to you.
13. Modifications.

We may modify these Terms of Use from time to time. We will notify you of all changes to these Terms of Use through a notice posted to the HPCI website. We will also post on these Terms of Use the date on which they were last modified. You will be deemed to have agreed to the Terms of Use as last modified and to be bound by them when you use the HPCI Application after those modifications were posted.
14. Miscellaneous.

14.1 Governing Law, Jurisdiction and Venue. This Agreement will be construed in accordance with and governed by the laws of the Province of Ontario, without regard to its choice of law or conflicts of law provisions. The exclusive forum for any actions related to this Agreement will be in the Ontario courts, and, to the extent that federal courts have exclusive jurisdiction, in the Canadian federal courts, except that, if HPCI is seeking injunctive relief with respect to preventing imminent harm HPCI may do so in any court with jurisdiction over the parties. The parties agree to such venue and jurisdiction.

14.2 Entire Agreement; Modification. This Agreement contains the entire understanding and agreement of the parties hereto and supersedes any agreements, either oral or written. HPCI shall have the right to change, modify or amend any or all of the terms and conditions contained in this Agreement, in whole or in part, at any time, on written notice to of such changes or modification, which notice may be provided by posting the modifications to the HPCI website and sending you an email alerting you that there has been a change.

14.3 Notice. All notices, demands and other communications provided for or permitted under this Agreement shall be made by email to HPCI, and by email to you at the email address you designated when you created your HPCI account or at such other email address as you may designate by subsequent email notice to us.

14.4 Assignment. You may not assign any rights or obligations under this Agreement without the prior written consent of HPCI. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. HPCI and any of its subsequent assignees or successors may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party.

14.5 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

14.6 Survival; Severability. All covenants, representations, warranties and agreements made in these Terms of Use shall survive and remain in effect after the termination of this Agreement. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without said provision; provided that no such severability will be effective if it materially changes the economic benefit of this Agreement to either party.