Updated February 2, 2024

The terms of use (the “Agreement”) is between you and Cadency. The terms of use in this Agreement constitute legally binding terms between Cadency and you (defined below).  The Agreement governs your access to, and use of, Cadency’s online service for receiving, managing, and paying invoices (the “Service”).

In this Agreement, the terms:

“Cadency”, “we”, “us” and “our” refer to Datasoft Technologies USA Inc., a Delaware, USA corporation whose registered office is 200 Continental Drive, Suite 401 Newark, DE 19713, US and Datasoft Global Technologies Inc., an Ontario corporation with its principal place of business at 2750 14^th Avenue Suite 305, Markham, Ontario, L3R0B6 Canada; and

“you” and “your” refers to an individual accepting this Agreement on their own behalf or the legal entity an individual is accepting this Agreement on behalf of (whether in the form of a corporation, partnership, sole proprietorship, unincorporated association or other entity that carries on business or a related party or affiliate).

By registering to use the Service, or accessing or transacting through the Service, you agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by all terms and conditions in this Agreement you must not use or access the Service. During registration or access, you may be asked to confirm you have read and agree to this Agreement. Notwithstanding the foregoing, Cadency reserves the right to reject any registration or access to Services for any reason. Unless explicitly stated otherwise, any new features or products that change, augment, or enhance the current Service shall be subject to this Agreement. 

1. Changes to This Agreement
   
   Periodically, Cadency may find it necessary to modify or amend specific provisions of this Agreement. The latest version of this Agreement will be dated and published on our website which will be effective immediately or as indicated at the top of the revised Agreement if a later effective date is specified. Should we, at our sole discretion, determine a revision to be substantial, we will notify you through the Service and/or via email to the email address provided by you in our record. If you do not agree to any changes to any terms in this Agreement, you must cancel and immediately stop using the Service.
   
   You are responsible for regularly reviewing Cadency’s website to obtain timely notice of any revisions to this Agreement.

2. Use of the Service
   
   (a) You acknowledge and agree that: (i) you are responsible for the accuracy, quality, and legality of the information you furnish in relation to your use of the Service, (ii) you shall take measures to prevent unauthorized access to or utilization of the Service, promptly notifying us of any such unauthorized access or use, and (iii) your usage of the Service will adhere strictly to the terms specified in this Agreement, any other agreements with Cadency, and comply with all laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to you. To the extent Cadency provides you or allows you to access its Services with usernames, passwords, or other credentials (“Credentials”), you agree to keep such Credentials secure. You agree that Cadency may rely on requests or activity made using the Credentials and that such requests or activity will be deemed authorized by you.
   
   (b) You agree not to use the Service, either in its entirety or in part, for any unlawful or prohibited purpose as outlined in this Agreement. You further commit to refrain from engaging in activities such as modifying, copying, distributing, transmitting, displaying, performing, reproducing, publishing, licensing, creating derivative works from, framing on another web page, using on any other website, transferring, or selling any information, software, lists of users, databases, or other lists, products, or services provided through or obtained from the Service.
   
   You also agree not to use the Service to: (i) participate in unlawful or fraudulent activities or perpetrate hoaxes, phishing schemes, forgery, or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized messages such as junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate content, including material that is unlawful, defamatory, threatening, pornographic, abusive, libelous, or otherwise objectionable; (iv) store or transmit content that contains or is used to initiate a denial of service attack, software viruses, or other harmful computer code; or (v) abuse, harass, stalk, or otherwise violate the legal rights of a third party.

3. Your Transactions
   
   (a) You and your transactions are subject to the privacy policy located at www.cadency.global/privacy-policy/ (“Privacy Policy”). You agree and acknowledge that we may access or disclose information about you, including your content, in order to: (a) comply with the law or respond to lawful requests or legal process; or (b) protect the rights or property of Cadency or our customers, including the enforcement of our agreements or policies governing your use of the Service. The terms of our Privacy Policy are incorporated by reference and form part of this Agreement.
   
   Cadency facilitates invoicing and transaction payments by directing customers of merchants to the payment method chosen by the merchant through Cadency’s user interface or APIs. The merchant is responsible for keeping customer related data up to date and Cadency will have no liability to merchants or customers of merchants for any issues arising as a result of merchants’ failure to do so.
   
   For greater certainty, you acknowledge and agree that Cadency is neither a payment gateway provider nor a bank, and Cadency will not hold any funds on behalf of merchants or merchant’s customers. CADENCY AND CADENCY’S RELATED PARTIES ARE NOT LIABLE TO YOU FOR ANY AMOUNTS DUE TO YOU IN RELATION TO ANY TRANSACTION CONDUCTED THROUGH THE PAYMENT GATEWAY.
   
   (b) Your merchant may set up AutoPay on your behalf. Your continued use of the Service using autopay shall constitute your agreement to the autopay arrangements made on your behalf, and you may cancel your enrolment in autopay at any time. However, if one payment to a merchant (but no more) has been processed and you deny having authorized that merchant to register you for autopay to that merchant, we will reverse the payment by charging it back to the merchant and the corresponding invoice will continue as unpaid.

4. Consent to Electronic Communications and Solicitation
   
   (a) Upon registering to use the Service or accessing the Service, you acknowledge that we may communicate with you through Electronic Communication concerning the Service, encompassing, but not limited to: (i) notifications regarding your use of the Service, including any notifications pertaining to usage violations; (ii) updates; and (iii) promotional information and materials concerning Cadency’s products and services, delivered via electronic mail. You have the option to decline receiving promotional electronic mail from us by following the opt-out instructions provided in the message.
   
   The term “Electronic Channel” refers to any telecommunication or electronic transmission method utilized in connection with our Services, including but not limited to computer, internet, network, telephone, mobile phone, smart phone, SWIFT, email, facsimile, or bank wire. “Electronic Communication” encompasses any statement, information, disclosure, notice, request, agreement, consent, or other communication transmitted, received, or accepted through an Electronic Channel.
   
   (b) Any Electronic Communication that we receive from you, or in your name, or purporting to be from you or in your name or any other person on your behalf in connection with our Services, will be considered duly authorized by and enforceable against you. Cadency will be authorized to rely and act on any such Electronic Communication.

5. Third Party Content
   
   The Service may integrate or incorporate content and information from third-party providers and/or provide links to their websites (“Third Party Content“). Cadency does not have control over such content, and Cadency assumes no responsibility for it, including, but not limited to, any links within the content or any changes or updates to the content. The inclusion of Third Party Content is offered solely as a convenience by Cadency, and it does not imply endorsement by Cadency of such content or the affiliated party. When utilizing third-party services, content, software, or sites, you may be subject to additional and/or different terms, conditions, and privacy policies.
   
   While Cadency reserves the right to remove content that, in its judgment, fails to meet its standards, Cadency is not liable for any failure or delay in removing such material. Cadency is not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or issues with any such third party’s background, insurance, credit, or licensing, or (iii) the quality of services provided by any such third party or any other legal liability arising from or related to the performance of such services. If a dispute arises with any third party, you release Cadency (along with its affiliates, merchants, agents, and employees) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising from or in any way connected to such disputes.

6. Intellectual Property
   
   “Cadency” and all associated logos, marks, and trade names related to the Service are either trademarks or registered trademarks of Cadency, its subsidiaries, and affiliates. The Service, including related software and source code, along with all content (excluding your data and information), constitutes the exclusive property of Cadency, its subsidiaries, affiliates, and licensors, and is safeguarded by United States, Canadian, and international copyright and other intellectual property laws. Any sale, rental, leasing, copying, alteration, reproduction, redistribution, reverse engineering, modification, decompilation, or derivation of the source code or architecture, and the creation of derivative works from or usage of the Service or any content, is prohibited. All rights not explicitly granted under this Agreement are reserved. Unauthorized reproduction, modification, or redistribution of the software is expressly prohibited and may result in severe civil and criminal penalties.
   
   Cadency’s software, including its structure, sequence, organization, and source code, is deemed a trade secret of Cadency, its affiliates, or its merchants and is protected by trade secret laws. Without prior permission from Cadency, you agree not to display or use in any manner any of Cadency’s trademarks, whether registered or not.

7. Grant of Access.
   
   Subject to your compliance with obligations under this Agreement and any other agreements, Cadency grants you a limited, non-exclusive, non-transferrable (except as permitted under Section 14 (Assignment)), right to access and use the Service during your applicable term, solely for your internal business purposes (“Permitted Purpose”). You may permit certain parties to access and use the Service for the Permitted Purpose in accordance with the Agreement and any other Cadency agreements.

8. Limitation of Liability and Disclaimer of Warranties
   
   (a) In no event shall Cadency’s total liability to you or any third party, arising out of or related to this Agreement, exceed a maximum of one hundred dollars ($100.00), irrespective of whether any action or claim is based on warranty, contract, tort, or any other legal theory.
   
   (b) Under no circumstances shall Cadency be liable to you or any third party for any consequential, indirect, special, incidental, reliance, or exemplary damages arising out of or related to this agreement or the service, whether foreseeable or unforeseeable. This includes damages based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or any other cause of action. Such damages may encompass, but are not limited to, loss of data, goodwill, profits, investments, use of money, or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets; or labor claims, even if Cadency has been advised of the possibility of such damages.

9. Indemnification
   
   You agree to indemnify, defend, and hold harmless Cadency, its employees, members, directors, managers, officers, or agents from and against any loss, liability, damage, penalty, or expense (including attorneys’ fees, expert witness fees, and the cost of defense) that may be suffered or incurred as a result of (i) any claim by you for reimbursement of a pre-authorized debit initiated through Cadency pursuant to an AutoPay arrangement made by a merchant and you, (ii) any failure by you or any of your employees, agents, or subcontractors to comply with the terms of this Agreement; (iii) any warranty or representation made by you being false or misleading; (iv) any representation or warranty made by you or any of your employees, agents, or subcontractors to any third person other than as specifically authorized by this Agreement, (v) negligence on your part or on the part of any of your employees, agents, or subcontractors, or (vi) any alleged or actual violations by you or any of your employees, agents, or subcontractors of any payment card association rules, governmental laws, regulations, or rules.

10. Updates to the Service
    
    Cadency retains the right, at any time and periodically, to modify or discontinue, either temporarily or permanently, the Service or any part thereof, with or without prior notice. You agree that Cadency shall not be held liable to you or any third party for any modifications, suspension, or discontinuance of the Service.

11. Termination and Cancellation
    
    (a) In the event of a termination or cancellations of Services, you are responsible for any pending invoices, payment plans, configured recurring invoices and any in-progress payments or your obligation to collect on or pay outstanding invoices from any merchant or customer.
    
    (b) You acknowledge that your exclusive right and remedy, should you object to: (1) any provision of this Agreement or Cadency’s implementation or enforcement of such provision; (2) any policy or practice of Cadency, including Cadency’s Privacy Policy, or Cadency’s implementation or enforcement of these policies; (3) the content accessible through the Service or any alteration in the provided content; or (4) the amount or nature of fees, surcharges, applicable taxes, billing methods, or any modifications to the fees, applicable taxes, surcharges, or billing methods, is your right to cancel your use of the Service.

12. Remedies
    
    Except as set out in section 11(b), the rights, remedies, and powers provided to a party under this Agreement are cumulative and in addition to, and are not exclusive of or in substitution for, any rights, remedies, and powers otherwise available to that party.

13. General
    
    (a) Notice
    
    All notices issued under this Agreement must be in written form and delivered either through hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices addressed to Cadency should be sent to: Datasoft Group, Attn Legal, 2750 14th Avenue Suite 305, Markham, Ontario, L3R0B6, Canada, with a copy (which shall not constitute legal notice) sent via email to: [email protected]. Notice to Cadency will be considered effective upon receipt.
    
    Cadency may issue effective notice under this Agreement through any of the following methods: (a) via mail to the address specified in any application or registration submitted to Cadency; (b) electronically, through Services, electronically available statement(s), or any other means of electronic communication maintained by Cadency that you may access, or by electronically posting online; or (c) electronically, via any email address designated by you. By accepting this Agreement, you explicitly consent to receiving documents and notices electronically and agree to maintain access to the Internet for the duration of this Agreement.
    
    (b) Conflict of terms
    
    If there is any inconsistency between the terms of this Agreement and those in any Master Services Agreement or in any document entered into or delivered under this Agreement, the terms of this Agreement will prevail.
    
    (c) No partnership.
    
    The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
    
    (d) Severability
    
    Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, the remainder of this Agreement will remain in full force and effect.
    
    (e) Waiver
    
    No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
    
    (f) Force Majeure
    
    “Force Majeure” refers to any act, occurrence, condition, or event beyond a party’s control that significantly impacts the performance of that party’s obligations under this Agreement and could not reasonably have been anticipated or prevented. Such events include, but are not limited to, fires, power or equipment failures, labor disputes, civil unrest, non-performance of our vendors or merchants, and acts of God, excluding general economic conditions. Neither party is liable for damages resulting from a delay or the failure to fulfill any of its obligations under this Agreement when the delay or failure is caused by Force Majeure. If a party asserts that any of its obligations are suspended due to Force Majeure, that party must promptly notify the other party, providing all necessary details. The party must issue a similar notice as soon as reasonably practicable once Force Majeure has concluded.
    
    (g) Survival
    
    The provisions of this Agreement which, by their nature extend beyond termination of the Agreement, will survive including, but not limited to, any exclusion or limitation of Cadency’s (including the Cadency’s related parties and any providers of Third-Party Content) liability specified in this Agreement and any indemnification by you.
    
    (h) Construction
    
    No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein.
    
    (i) Assignment
    
    Either party shall be permitted to assign this Agreement to an affiliate or to a purchaser of all or substantially all the shares or assets of the party upon written notice to the other party.
    
    (j) Headings
    
    The headings employed in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions are for organizational purposes only and do not impact its interpretation. Unless the context necessitates otherwise, words denoting the singular number encompass the plural, and vice versa; words indicating gender include all genders.
    
    (k) Enurement
    
    This Agreement ensures to the benefit of and binds the parties and their respective successors and permitted assigns.

15. Governing Law; Waiver of Jury Trial; Language
    
    (a) When Delaware law governs.
    
    (i) If your business offices are in the United States of America, the laws of the State of Delaware and the federal laws of the United States applicable in Delaware, excluding any rule or principle of conflicts of law that may provide otherwise, govern this Agreement.
    (ii) When Delaware law governs, any action or proceeding relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes Delaware.
    (iii) You and Cadency may otherwise have had a right or opportunity to litigate claims through a court before a judge or a jury, and/or to participate or be represented in litigation filed in court by others (including class actions), but except as otherwise provided above, those rights, including any right to a jury trial, are waived.
    
    (b) When Ontario law governs.
    
    (i) If your business offices are in Canada, the laws of Ontario and the laws of Canada applicable in that province, excluding any rule or principle of conflicts of law that may provide otherwise, govern this Agreement.
    (ii) When Ontario law governs, the parties irrevocably attorn to the jurisdiction of the courts of Ontario, which will have non-exclusive jurisdiction over any matter arising out of this Agreement.
    
    (c) Language
    
    It is the express wish of the parties that this agreement and any related documents be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.