Pungle Services Terms and Conditions
Pungle provides customers with a platform to make payments to customers, suppliers, and business partners (“Services”). Prior to activation of the Pungle Services, Pungle shall establish an account in Customer’s name (“Pungle Account”). You agree to use the Pungle Services for the purposes that they were intended and only in accordance with the terms and conditions in this agreement. This agreement is effective upon the date you agree to it, by electronically indicating acceptance, and continues so long as you use the Service or until terminated by Pungle.
1. Account and Conditions of Use
Only businesses, including sole proprietors, bona fide charitable organizations, and other business entities located in Canada are eligible to apply for a Pungle Account to use the Services described in this Agreement. The Customer agree to use your Pungle Account and the Services for the purposes that they were intended and only in accordance with the terms of this agreement.
The Customer shall be entirely liable for all activities conducted through the Pungle Account. We will consider any access to the Pungle Services through the use of your Pungle Account to be duly authorized by you. All instructions and information communicated to us through your Pungle Account or on your behalf by your employees, agents, or representatives will be binding on you. Pungle is not required to verify the identity of users beyond restricting access credentials. In the event that you wish to revoke the authority for any person to use a Pungle Account, you must notify Pungle either by contacting us through our support channels, available through https://www.pungle.ca.
In order to use the Services, you must register for a Pungle Account using credentials that you select. The Customer represents and warrant that the registration and account-related information provided is accurate and will be kept up-to-date. The Customer and the person registering the Customer for a Pungle Account (your “Representative”) individually affirm that your Representative is authorized to provide the information described in this section on your behalf and to bind you to this Agreement. We may require the Customer or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
In order to activate any Pungle Account, background verifications will be performed for the purposes of complying with rules and regulations of Visa, Mastercard, Interac, licensed bank partners, and Canadian regulators (Rules and Regulations), as may be amended or replaced from time to time, and to limit fraud and manage risk. Such background verifications may include anti-money laundering and know your client information. By completing the account sign-up process, you consent to Pungle’s background verifications for the purposes described above.
3. Compliance with Laws
The Customer must use the Services in a lawful manner, and must obey all laws, rules, regulations and codes of conduct (“Laws”) applicable to your use of the Services. This may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection including CASL, unfair competition, privacy, and false advertising, and any other Laws relevant to the Services.
Where you use the Services to conduct transactions using payment cards, you will comply with the network rules and limitations on use identified in Agreement, including the network rules applicable to acceptance of MasterCard and Visa branded payment cards. These include guidelines, monitoring programs, and activity reporting (including excessive credits, chargebacks, or deposit). Under the network rules, certain activity may subject you to chargebacks, fees, fines, settlement delays, withholdings, audits of your processing activity, or termination of this Agreement.
4. Prohibited Use
The Customer agrees to take all necessary steps to prevent the fraudulent or other misuse of, your Pungle Account and to diligently supervise and monitor the conduct and work of all representatives and employees having access to the Pungle Account and any involvement in the Services. You agree to immediately notify us upon becoming aware of any unauthorized use of your Pungle Account or any other breach of security related to Pungle and to provide all reasonable assistance necessary for Pungle to investigate and correct the problem, if one exists.
5. Authorized Transactions
To enable Pungle to process transaction for you, the Customer authorizes and directs Pungle and its Financial Services Providers to receive and pay funds through the Services on your behalf. The Customer agrees that all transfers that are initiated by the Customer through the Customer’s Pungle Account are duly authorized by the Customer. The Customer will maintain the direct relationship with your customers and is responsible for acquiring appropriate consent to submit transfers through the Pungle Services on their behalf. The Customer acknowledges that authorized Transactions may be subject to a dispute. Pungle is not responsible for or liable to you for authorized and completed transfers that are later the subject of a dispute, or that are submitted without authorization or in error.
Without prejudice to the foregoing, should there be a failure of or error, omission, defect, deficiency, delay causing downtime, or inability of a subscriber to access the Services for any length of time, including as a result of the permanent termination of service, the subscriber acknowledges and agrees that, except as otherwise set out herein, its only remedy for any error, omission, defect, deficiency, delay or other failure of Pungle or the Services whatsoever is to discontinue using your Pungle Account and the Services.
- Software and Information
2. Intellectual Property Rights
Pungle or its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the APIs, Services, Dashboard, and Documentation (collectively, “Pungle IP”) or any copies thereof. Pungle IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and Pungle reserves all rights in Pungle IP not expressly granted to you in this Agreement.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our APIs, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Pungle has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
3. Data Usage and Confidentiality
You own all of your business’s private data, content and all information which you enter and use in connection with the Services, including your customer data (the “Data”). We do not claim any rights, proprietary or otherwise over any of the Data or information which you may use or disclose in connection with the Service and Pungle. Notwithstanding the above, there may be circumstances in which we may be required to disclose Data, including; for the purposes of fraud prevention and law enforcement; to comply with any legal, governmental or regulatory requirement; to comply with a court order.
Pungle provides Data to third-party service providers, including Financial Services Providers and their affiliates, to allow us to provide Services to you and other users and to complete transactions on your behalf. You understand and consent to Pungle’s use of Data for the purposes. Pungle may also use Data that is anonymized and aggregated with other customers’ transaction data for internal purposes and to provide you, other customers, and third parties with analytic products and services.
4. Cardholder Data
We are responsible for the security of Cardholder Data that is collected, transmitted, stored, or processed by Us on Your behalf. “Cardholder Data” is defined as being the cardholder’s primary account number, and where a full unmasked card number is present, any of the cardholder name, expiration date, and/or service code. Pungle has developed strict security features to protect Cardholder Data, and as such it is required that this data only be used in anticipated ways and stored in appropriate places.
You acknowledge and agree that you are prohibited from entering cardholder data into any form or data entry fields in Pungle, except into those fields intended solely for that purpose (i.e. where Pungle explicitly requests such data be entered into such fields). For clarity, it is not permissible to store cardholder data in fields with labels such as ‘memo’ or ‘note’. Similarly, excluding payment forms, you must never enter CVV2 data into any fields in Pungle. You assume all responsibility for any cardholder data entered into Pungle in violation of this Agreement.
5. Security and Fraud Controls
Pungle may provide or suggest security procedures and controls intended to reduce the risk to you of fraud (“Security Controls”). You agree to review the Security Controls and the Documentation that we provide to you, and to select the Security Controls that meet your business requirements. If you believe that the Security Controls we provide are insufficient, then you agree to separately implement additional controls that meet your requirements.
6. Service Providers
Pungle may use service providers, including our affiliates, in order to facilitate all or any portion of the services available through Pungle, including by way of example, a payment network, a payment processor or website hosting company. You consent to the use of third party Service Providers where required to complete the Services under this Agreement, and you authorize Pungle to disclose to such service provider, subject to appropriate confidentiality and safeguarding arrangements, any information necessary to provide facilitate the provision of Pungle’s services.
While using the Pungle Services, we may also collect information from you about someone else. If you provide us with personal information about someone else, you are obligated to ensure that you are authorized to disclose that information to us, and that we, without further action, may collect, use, and disclose that information for the purposes described in this policy. Pungle may require you to assist with any requests by the individual to access or update their information, and you agree to do so.
- Fees and Accounts
1. Fees and Revision
Pungle will provide the Services to you at the rates and for the fees (“Fees”) agreed to by you during the subscription process. These Fees may change from time-to-time including changes to your subscription requested by you. The current pricing package and Fees applicable to your account can be found on the website, once you have logged-in to your account, under Your Subscription. The Fees include charges for Transactions (such as processing a disbursement) and for other events connected with your Pungle Account (such as handling a disputed charge).
We reserve the right to revise our Fees at any time, provided that, with respect to increases in or the introduction of new Fees related to business transfers, such increase in or new Fees will be subject to a ninety (90) day notice period to you. For greater certainty, notification is not required for fee changes made in accordance with pre-determined fee schedules.
2. Funding Account
To use this service, you must provide Pungle with a valid bank account for funding and settlement (“Funding Account”) for each currency for which you request settlement, based on our list of available settlement currencies. All transfers executed on behalf of your business using the Pungle Account will be funded or settled using your Funding Account. Any Fees, Fines, and amounts owed to us for any reason will also be settled using your Funding Account. You affirm that you are authorized to initiate Transfers to and from the Funding Account. Your use of the Payment Services is subject to additional terms that apply between you and one or more of Pungle, a Pungle affiliate, or a Financial Services Provider. In addition, unique terms and conditions may also apply to specific payment methods or networks.
3. Funding, Settlement
You agree to appoint Pungle (or a Financial Services Provider designated by Pungle) as your agent to send transfers to recipients on your behalf. You understand and agree that we will only pay recipients with (i) funds that are available for transfer; or (ii) under settlement terms specifically agreed in writing by Pungle in a separate schedule to this Agreement (Schedule B – Settlement Terms). In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds (each a “Reserve”). We may impose a Reserve on you for any reason if we determine that the risk of loss associated with your Pungle Account is higher than normal. In addition, you agree that you are solely responsible for determining the accuracy and completeness of any instructions you provide us for a Transfer to a Recipient Account.
4. Pre-Authorized Debits (PADs)
You authorize us and our respective vendors and agents to initiate debit and credit entries to the Funding Account, or any other account maintained by you at any institution that is a member of the Canadian Payments Association, in accordance with this Agreement. You agree that any withdrawal by us and our vendors and agents in accordance with this Agreement are pre-authorized debits (“PAD”s) for business purposes, as defined under Rule H1 of Payments Canada. You hereby waive the right to receive advance notice from us and our vendors and agents of any and all such debits. This authorization will remain in effect after termination of this Agreement and until all of your obligations to us have been paid in full. If you change the Funding Account, this PAD authorization will apply to the new account and you shall provide us in writing such information regarding the new account as we deem necessary.
5. Reconciliation and Error Notification
Pungle will make information available through the platform outlining transfers processed on your behalf, the fees charged, any debits or credits to/from your bank account, and any interest charges in connection with Pungle’s services (the “ Account Statements”). You agree to review and verify the Account Statements and notify Pungle in writing of any errors, irregularities or omissions within thirty (30) days of the availability of the Account Statement through Pungle. At the end of the thirty (30) day period, it will be conclusively settled between you and Pungle that the information contained in the Account Statement is accurate, that all transfers, fees, debit and credits, and interest charged, as set out in the Account Statements are properly chargeable, and that you will not be entitled to be credited with any amount not credited in the Account Statement. Notwithstanding the foregoing, Pungle has the right at any time to make adjustments for any amounts improperly credited and any alleged errors, irregularities or omissions outlined in the Account Statement or to charge back items for which payment has not been received.
You are obligated to pay all taxes, fees and other charges (“Taxes”) imposed by any governmental authority, including without limitation any value added tax, goods and services tax, provincial sales tax and/or harmonized sales tax on the Services provided under this Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other evidence of tax exemption that is satisfactory to us.
7. Penalties and Fines
In addition to the Fees, you are also responsible for any penalties or fines imposed on you or Pungle by any bank, money services business, payment network, financial institution, or other financial intermediary (each a “Financial Services Provider”) resulting from your use of Payment Services in a manner not permitted by this Agreement or a Financial Services Provider’s rules and regulations.
- Other Applicable Legal Terms
“Pungle” is a trademark of Pungle Inc. Other marks, graphics, typefaces, trademarks and logos appearing on Pungle are trademarks or trade dress of Pungle Inc. or its licensors. All other trademarks appearing on Pungle are the property of their respective owners. Our trademarks and trade dress may not be used in any manner for any purpose without our express written consent.
3. No Warranty
ANY SERVICES DESCRIBED IN THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUNGLE INC. (a) IS NOT RESPONSIBLE FOR YOUR FAILURE TO PERFORM OBLIGATIONS UNDER THIS AGREEMENT AND (b) DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, OR ANY THIRD PARTY.
4. Limitation of Liability
You agree to release, defend, and indemnify Pungle Inc., its affiliates, directors, officers, employees, agents, suppliers and licensors from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including reasonable legal and accounting fees), resulting from your use of Pungle or anyone using Pungle through your account, or any alleged violation by you or anyone using Pungle through your account of this Agreement.
5. Consent to Electronic Disclosure and Notification
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Pungle Account and your use of the Service. We will provide these Communications to you by emailing them to you at the primary email address listed in your Pungle Account registration, by emailing you a link how to access them on a website, or by posting them on the Website. Communications are considered received by you within 24 hours of the time they are emailed to you or posted to our Website. Communications include but are not limited to:
- transaction receipts or confirmations;
- funding and settlement instructions and confirmations;
- communication in relation to delinquent accounts (which may also be by phone, and may be made by Pungle Financial or by anyone on its behalf, including a third party collection agent);
6. Termination of Service
This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Pungle. You may terminate this Agreement by closing your Pungle Account at any time by requesting to close your Pungle Account and ceasing to use the Services. If you use the Services again or register for another Pungle Account, you are consenting to this Agreement. We may terminate this Agreement or close your Pungle Account at any time for any reason by providing you Notice. We may suspend your Pungle Account and your ability to access funds in your Pungle Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Pungle Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; or (iii) any Law or Financial Services Provider requires us to do so.
7. Effects of Termination
Upon termination you understand and agree that (i) all licences granted to you by Pungle under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers within 10 days of termination; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.
8. No Agency
Neither party to this Agreement is an employee, agent, servant, representative, partner, or joint venturer of the other. Neither party has the right or ability to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other party without the other party’s express written consent.
You cannot assign this Agreement without Pungle’s prior written consent. Any purported assignment in violation of this clause shall be deemed null and void.
10. Force Majeure
Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Reversals, or Returns under this Agreement.
11. Governing Law and Dispute Resolution
This Agreement is governed by, and is to be interpreted, construed and enforced in accordance with, the laws of Ontario and the laws of Canada applicable in Ontario, excluding any rule or principle of conflicts of law that may provide otherwise.
You waive all rights to a trial by jury in connection with any legal proceeding or dispute against us. You further agree that any dispute or proceeding which you may bring against us shall be conducted on an individual basis and not a class-wide basis and that any such proceeding or dispute shall not be consolidated with any other dispute or proceeding which might arise between us and any other user.
In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed, and the balance of the Agreement shall continue in full force and effect.
No waiver of any provision or of any breach of this Agreement shall constitute a waiver of any other provisions or any other or further breach, and no such waiver shall be effective unless made in writing and signed by an authorized representative of the party to be charged with such a waiver.
The following provisions of this Agreement shall survive expiration or termination of this Agreement: 1.1 Account and Conditions of Use; 1.3 Compliance with Laws; 1.4 Prohibited Use; 1.6 Recourse; 2.2 Intellectual Property Rights; 2.3 Data Usage and Confidentiality; 2.4 Cardholder Data; 2.7 Privacy; 3.5 Reconciliation and Error Notification; 3.6 Taxes; 3.7 Penalties and Fines; 4.2 Trademarks; 4.3 No Warranty; 4.4 Limitation of Liability; 4.7 Effects of Termination; 4.8 No Agency; 4.10 Force Majeure; 4.11 Governing Law and Dispute Resolution; 4.12 Severability; 4.14 Survivability.