1.1 The Commercial conditions for the use of payment account within Sunpay System (hereinafter referred to as the “Commercial Conditions”, “General Terms” or “GTC”) regulate the mutual rights and obligations of the payment service provider, the company SUN PAY LIMITED, MSB registration number M19568367, legal address: 106-460 DOYLE ROAD, KELOWNA, BC, V1Y0C2, CANADA (hereinafter referred to as the Sunpay). The Clients using payment services provided by Sunpay system (hereinafter referred to as the “Client Account”). The Commercial conditions set out the basic rights and obligations resulting from a contractual relationship established between Sunpay and Clients; and are binding for all the parties involved in this relationship from the date when the Client expresses its intention to enter into a contractual relationship with Sunpay. They also define the basic rights and obligations arising from a contractual relationship between Sunpay and a third person interested in the use of Sunpay system.
2 DEFINITION OF BASIC TERMS
For the purposes of these General terms and the legal relationship between Sunpay and Clients, the following terms will have the meanings given to them below:
Authorization means the process of Clients verification (approval or rejection) at the level of Sunpay;
Authorized Person means a person authorized by the Client, in the manner required by Sunpay and by the applicable security regulations, to dispose of the Payment Account as a person listed in the Specimen signature form or requested by a Client;
Agreement means a legal relationship established between Sunpay and the Client, providing a framework for the provision of payment services. These General Terms form a general part of an Agreement;
Business Day means the day on which Sunpay and other institutions engaged in the money transfer business operate, usually Monday to Friday. The Business Days of banks do not include bank holidays (weekends, public or other holidays, and the days officially declared ‘bank holidays’ in the Canada). Time of commission/execution/acceptance for execution:
SEPA payments until 15:00;
Standard SWIFT payments until 15:00;
Express SWIFT payments until 13:00;
All operations will be executed in a period of 1 to 3 days;
More details can be found in the Price List;
Client means an individual person or legal entity having a contractual relationship with Sunpay, the subject matter of which is providing of payment services;
Client Account is a payment account for the acceptance and management of money and is used to provide payment services;
Communication Channel means the technical connection between the Client and Sunpay, enabling secured Transaction processing;
Confidential Information means any information, facts and data that are used in the Agreement made between Sunpay and the Client, or information, facts and data on matters relating to Sunpay and the Client, which came to the knowledge of the parties during or in connection with the conclusion of the Agreement or compliance with the individual contractual terms and conditions, or information on payment transactions and on the use of funds through payment tools, and any other information relating to the activities of any of the parties having a certain value and capacity to cause benefit or harm to Sunpay /Client, or information that is classified by its provider as confidential or its confidential nature results from its essence or circumstances of which the other party is aware;
Electronic Means of Communication (hereinafter referred to ‘EMC’) mean any electronic means of communication enabling communication with Sunpay in electronic form;
IBAN (International Bank Account Number) means an international bank account number enabling clear identification of the payee and automated payment processing. It consists of a country code, control number (calculated for each client according to a precise algorithm determined from the bank code, account number, and the prefix), bank code, prefix, and the Client’s account number;
Sunpay System means a payment system operated by SUN PAY LIMITED, as a business company with a registered office at 106-460 DOYLE ROAD, KELOWNA, BC, V1Y0C2, CANADA and MSB registration number M19568367;
Notification means notification of an incoming or outgoing payment sent to the Client via the Sunpay System or by e-mail, which is of information nature and doesn´t serve to final settlement;
Payer means an individual person or legal entity transferring funds from his/her/its account, payment card, or in any other manner, to the Client with the account kept at Sunpay. Payer is considered also a natural or legal entity sending funds from his account kept at Sunpay;
Payment Transaction (also referred to as ‘Payment’) means any transfer of funds between individual Payment Accounts (for the purposes of payment transactions, a Payment Account of a third person or any other similar account held by a Payment Service Provider is also deemed to be a Payment Account). Payment transactions are:
1) Internal – made between accounts kept at Sunpay;
2) External – made between an account kept at Sunpay and an account kept at another financial institution.
Payment Account means an account opened by Sunpay for a Client for purposes related to the provision of payment services. A Payment Account enables the Client to carry out any payment transaction that is allowed by Sunpay within the scope of its payment services;
Payment Service Provider means (i) a bank or a branch of a foreign bank; (ii) a payment institution or electronic money institution established under the Act, or a branch of a payment institution or electronic money institution; (iii) other similar financial institution providing Payment Services;
Phone Identificator (Phonepass) password serving for verification of Client’s phone. The Client can verify his telephone number and get Phonepass through the Sunpay system in his personal account;
Politically Exposed Person is defined by the Financial Action Task Force (FATF) as an individual who is or has been entrusted with a prominent public function. Due to their position and influence, it is recognized that many PEPs are in positions that potentially can be abused for the purpose of committing money laundering (ML) offences and related predicate offences, including corruption and bribery, as well as conducting activity related to terrorist financing (TF);
Price List means an overview of the services and activities offered by Sunpay to Clients, including the fees charged for the use of these services and for the performance of various operations;
Provider is the company SUN PAY LIMITED, IN M19568367, legal address 106-460 DOYLE ROAD, KELOWNA, BC, V1Y0C2, CANADA, which was registered in the Register of the payment service providers as a money services business (MSB) in the Government of Canada and Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and is the operator of payment System Sunpay. The Payment System Sunpay, hereinafter referred to as “Sunpay”, as well as the “System”. The access to the System and the client account is provided with a computer interface (hereinafter referred to as the “web interface”);
Refund means refund of processed payment by the Client. Sunpay can provide Refund upon Client´s request;
Ultimate Beneficial owner (UBO) refers to the natural person(s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. It also includes those persons who exercise ultimate effective control over a legal person or arrangement. Reference to “ultimately owns or controls” and “ultimate effective control” refer to situations in which ownership/control is exercised through a chain of ownership or by means of control other than direct control. This definition should also apply to beneficial owner or a beneficiary under a life or other investment-linked insurance policy;
Website (the “Site”) located at sunpay.ca.
3 ESTABLISHMENT, CHANGE AND TERMINATION OF A CONTRACTUAL RELATIONSHIP
3.1 Establishment of a Contractual Relationship
3.1.1 The contractual conditions are the terms and conditions stipulated by an Agreement as a legally binding act between Sunpay and the Client, concluded in accordance with the General Terms, the Price List, and/or other applicable documents in effective wording.
3.1.2 An Agreement between the Client and Sunpay can be concluded for definite period or indefinite period in the following forms:
a) Personal meeting in the office of the Sunpay and signing of the required forms;
b) Online boarding with further signing of the required forms and certification of signature samples.
3.1.3 Online boarding refers to online registration of the applicant via form Sunpay that can be found on the website sunpay.ca. Applicant will fill in KYC form and agree with all terms of future contract relation. After proper completion of registration, the Client receives the data needed to access his client account. For more information and details about KYC process please visit sunpay.ca.
3.1.4 All the information pertaining to registration, including a form for registration and detailed instructions on the use of the services available at sunpay.ca. The form for registration as well as the entire system is properly protected from unwanted interference by third parties.
3.1.5 The Sunpay has the right to dispose of the data provided by the Client only in a manner that complies with the relevant provisions of Act on Protection of Personal Data and on Amendments to Certain Laws, as amended. The Client provides such data, thus expressing his consent to its treatment in such amounts and for such purposes which correspond to the generally binding legal regulations.
3.1.6 The Sunpay will send to the Client by e-mail to the address, specified by the Client in the registration form, the proof of registration and PID.
3.1.7 The Sunpay can send to the Client by SMS to the phone number, specified by the Client in the registration form, verification codes for 2FA authorization.
3.1.8 The Sunpay may apply to the Client with the requirement to amend or supplement the information specified at the registration and vice versa.
3.1.9 A contractual relationship is established by:
a) Filling and signing of the relevant forms by Sunpay and the Client;
b) Acceptance of the Client´s application by Sunpay pursuant to 3.1.3.
3.2 Changes in a Contractual Relationship
3.2.1. The subject matter of an Agreement can be narrowed only upon expiry of a notice period, which is specified for each type of a payment service, unless these General Terms stipulate otherwise.
3.2.2. The Client will be obliged to notify Sunpay without delay of any change in its registered office address, change in the list of persons authorized to act on its behalf, or event that may affect the discharge of obligations towards Sunpay (initiation of bankruptcy, restructuring, foreclosure, liquidation, or criminal proceedings, etc.).
3.2.3. Sunpay will not be liable for any damage incurred by the Client as a result of a failure to report a change in time under the previous clause.
3.3 Termination of a Contractual Relationship
3.3.1. A contractual relationship between Sunpay and a Client may be terminated in the following ways:
a) by contract between the parties;
b) upon expiration of the period for which the Agreement was concluded;
c) by withdrawal from the Agreement for legally justified reasons;
d) if Sunpay or the Client (legal person) is dissolved without a legal successor or the Client (a natural person) dies;
e) upon expiry of Sunpay license to provide payment services;
f) by termination notice given by one of the parties for any of the reasons specified below.
3.3.2. The Client and Sunpay will be entitled to terminate an Agreement concluded for an indefinite period at any time, unilaterally, without specifying the reasons. The termination notice will start to lapse from the first day of the month following the delivery of a written notice. In general, the notice period will be one (1) month in the case of a notice given by the Client. The notice will be delivered exclusively by mail or Website.
3.3.3. Sunpay will be entitled to terminate any Agreement with the Client with effect from the date of delivery of a termination notice to the Client if:
a) no transaction is made on the Payment Account by the Client over a period of six (6) months;
b) the Client breaches the Agreement or acts in contradiction with the General terms, and fails to provide remedy within the time limit specified by Sunpay;
c) Sunpay has a justified suspicion that the Client or a person authorized to act on the Client’s behalf behaves in contradiction with the generally binding legal regulations, good morals, principles of fair business, AML policy, or the Client’s position has changed substantially so that the Client can no longer guarantee compliance with the contractual conditions;
d) if the Client’s Payment Account shows a negative balance;
e) if the Client has unpaid liabilities towards Sunpay (the right to recover these liabilities will remain unaffected);
f) such events occur on the Client’s side that may affect the discharge of liabilities towards Sunpay (initiation of a bankruptcy, restructuring, foreclosure, liquidation, or criminal proceedings, etc.);
g) any of the Card Companies, the Canada Police Corps, The Government of Canada or Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) instructs or advises Sunpay to end cooperation with the Client;
h) if the information provided by the Client and used in the Agreement proves to be untrue, incomplete, inaccurate, and incomprehensible.
3.3.4. The Client will be entitled to terminate any Agreement with Sunpay in writing with effect from the date of delivery of termination notice to Sunpay if:
a) Sunpay repeatedly and grossly violates these General terms or the Agreement;
b) Sunpay loses its authorization to provide payment services;
c) Such events occur on the side of Sunpay that may affect the discharge of liabilities towards Client’s (initiation of a bankruptcy, restructuring, foreclosure, liquidation, or criminal proceedings, etc.).
3.3.5. If a contractual relationship terminates, the Client will determine where the balance from the Client’s Payment Account is to be transferred. The balance can be transferred only to a bank account in other bank within Canada or EU kept with the Client´s name, based on the request for balance transfer to other account. Sunpay has the right to charge all fees for the Payment in accordance with the price list.
3.3.6. If the Client fails to determine how the balance should be treated after the termination of contractual relationship, Sunpay will retain this balance until the claim to the funds becomes statute-barred, without paying interest on the funds.
3.3.7. If there are reasons for terminating the Agreement immediately, Sunpay will be entitled to suspend the service.
3.3.8. With the termination of an Agreement, the Client’s accounts maintained by Sunpay for that particular Agreement will be cancelled, too. In case of amendment to the Agreement, only the rights for services and obligations directly associated with the amendment will be suspended. If the owner holds more payment accounts, particular accounts can be cancelled separately each also upon the notice by Sunpay or by the owners, provided that the remaining accounts remain active.
4 PAYMENT SYSTEM SERVICES
4.1 Payment Account
4.1.1. Establishment, Maintenance, and Disposition of a Payment Account
For the purposes of Payment System services, Sunpay will establish and maintain one or more Payment Accounts for the Client, registered for the Client’s name and surname/business name. Each Payment Account will have a number assigned, which is unique within Sunpay. Sunpay will be entitled to determine the minimum balance to be maintained on a Payment Account.
4.1.2. Interest Rates on Funds Held on Client Accounts
The funds held on Payment Accounts with Sunpay will bear no interest.
126.96.36.199. Sunpay will charge fees related to its standard services according to the Agreement and the Price List. Sunpay will charge individual fees to the Client for non-standard services not defined herein and/or in the Price List and the Client will be informed thereon before using such services.
188.8.131.52. For the purpose of fee collection, Sunpay will be entitled to clear such liabilities against the funds that are held on Payment Accounts in any time, including financial settlement for the card transactions processed.
184.108.40.206. If the Client’s account is denominated in a currency other than that in which Sunpay collects the fees, the relevant fee will be collected in the currency in which the account is denominated, following conversion at the rate set by Sunpay.
4.1.4. Provision of Information on Payments and Payment Account Balances
220.127.116.11. The Client has access to information on transactions and balances on its accounts in electronic form, i.e. through the Website service.
18.104.22.168. Sunpay will supply statements of accounts in paper form and on physical media at the Client’s request, after the fee is paid according to the current Price List.
4.1.5. Blocking of Funds
Sunpay will be entitled to block disposal of the funds held on the Client’s Payment Account, evtl. financial settlement with the Client based on the obligations resulting from applicable generally binding legal regulations or decision of authorized bodies for the necessary period in the following cases:
a) Sunpay has a suspicion that the funds held on the Client’s Payment Account are intended for the commitment of a crime, resulted from the crime or participation thereon;
b) if there is a suspicion that an unauthorized Payment Transaction was carried out through the Client’s Payment Account;
c) the Client is in delay in discharging its obligations under the Agreement;
d) bankruptcy is declared in respect of the Client’s assets, restructuring is initiated, the bankruptcy petition is cancelled owing to the lack of funds for the remuneration of the trustee in bankruptcy, the Client enters into liquidation, or the risk of insolvency on the Client’s side excessively increases within a short period;
e) for the purposes of corrective accounting and settlement;
f) if case of excessive number of chargebacks received from Payment Card holders in connection with the Client’s actions;
g) if criminal proceedings are initiated against the Client or its employees in the matter of fraudulent acts; or if actions of the Client fail to comply with the Card Companies´ rules and such conduct may cause Sunpay a damage;
h) if the client, in the opinion of Sunpay, violated the provisions of the AML policy or did not provide (in whole or in part) the requested documents.
4.2 Payment Transactions
4.2.1. General Provisions
22.214.171.124. Under the Agreement, Sunpay generally processes Payment Transactions for the Client in non-cash form and exclusively in electronic form.
126.96.36.199. The Client can make payments using Transfer Orders through the Website service or in another manner supported by Sunpay. Sunpay assumes no responsibility for the processing of incorrect data provided by the Client and is entitled to charge fees according to the Price List.
188.8.131.52. Sunpay will process Transfer Orders given by the Client without undue delay, within the Cut-off Time, provided that at the moment of maturity there are enough funds (sufficient financial coverage) on the Client’s Payment Account, from which the payment is to be debited. For the purposes of Transfer Orders, ‘sufficient financial coverage’ means an amount of funds on the Client’s Payment Account, which equals to at least the amount of the Transfer Order given by the Client, including the applicable fees related to the Transfer Order according to the Price List. If there is no sufficient financial coverage, Sunpay will not execute the Transfer Order.
184.108.40.206. Sunpay will be entitled to reject the Transfer Order where there is a justified suspicion that its execution would be inconsistent with the generally binding legal regulations, AML policy, internal policy or good morals, or if the Transfer Order is unclear, incomprehensible or uncertain; in such cases, Sunpay will inform the Client without delay.
220.127.116.11. Sunpay will be entitled not to credit funds to the Client’s Payment Account or not to transfer funds from the Client’s Payment Account, if the data about the Payer are not clear, comprehensible, and specific enough.
18.104.22.168. Sunpay will be entitled not to credit funds to the Client’s Payment Account or not to transfer funds from the Client’s Payment Account if the transaction contradicts the legal regulations, mainly if there is a suspicion that the relevant Payment Transaction is associated with money laundering, terrorism financing, or other criminal activity.
22.214.171.124. Sunpay will be entitled to receive funds that are transferred to the Client’s Payment Account and to credit these funds to the Client’s Account. The Client agrees that, if, after the cancellation of its Payment Account and/or the termination of the legal relationship between Sunpay and the Client, any funds are transferred to its cancelled Payment Account, Sunpay will be entitled to credit such funds to another Payment Account of the Client, if such account exists, or Sunpay will return the transferred funds to the Payer, after deducting the fees applicable to such Payment Transactions according to the current Price List.
126.96.36.199. If the Transfer Order contains information or instructions, based on which the Payment Transaction cannot be carried out or the instructions given by the Client cannot be observed or, for other reasons, the payment cannot be processed, Sunpay will credit the payment back to the Client’s Payment Account or it will call upon the Client to be given new instructions or to clarify them.
188.8.131.52. If the Client’s Transfer Order contains incorrect data (bank details or other) as a result of which the Payee’s Payment Service Provider returns the funds transferred, Sunpay will credit these funds back to the Client’s Payment Account after deducting the applicable payment-related fees.
184.108.40.206. Incoming payments received by Sunpay for the benefit of the Client will be credited to the Client’s Payment Account by the end of the following Business Day on which they were received.
220.127.116.11. Sunpay reserves the right not to credit the funds received to the Client’s Payment Account where there is a justified suspicion that the relevant Payment Transaction should not be completed for the benefit of the Client. In such case Sunpay undertakes to contact the Client immediately to inform him/her/it of this fact, and to require proof that the incoming payment is justified.
4.2.2. Internal and External Payment Transactions
18.104.22.168. The Client can place a Transfer Order for Internal Payment Transaction at any time, even on non-banking day. Internal Payment Transactions will be processed automatically upon placing, without unnecessary delay. Debiting of funds from the Payer’s Payment Account and their crediting to the Payee’s Payment Account will be interpreted as Internal Payment Transaction processing.
22.214.171.124. External Payment Transactions made on the basis of the Client’s Transfer Order given on the Business Day before the Cut-off Time will be processed on the day when the order is given. Payments made after the Cut-off Time will be processed on the Business Day following the date of the order. Processing means the execution of funds transfer order by Sunpay.
4.2.3. Corrective Settlement of Payments
126.96.36.199. Sunpay will be responsible for the correct settlement of Payment Transactions if the Client meets all conditions stipulated for the execution of Transfer Orders and the performance of Payment Transactions.
188.8.131.52. If it becomes apparent during the performance of Payment Transactions that a Payment Transaction was incorrectly settled, Sunpay will carry out corrective settlement on its own initiative, on another Payment Service Provider’ initiative, or on the Client’s initiative, without undue delay, as soon as such fact has come to its knowledge. The Client will not be entitled to indemnification or any other compensation.
184.108.40.206. If Sunpay credits an incoming payment to the Client’s account and is later contacted by the Payer’s Payment Service Provider with a request for the return of the funds, Sunpay will contact the Client in this regard. If the Client agrees to return the funds, the funds will be deducted in full amount from the Client’s Payment Account. If the Client does not agree to return the funds, the Payer’s Payment Service Provider will be contacted and informed that the request has been rejected. The Client’s identification data will be sent to the Payer’s Payment Service Provider.
220.127.116.11. Sunpay will return the funds credited to the Client’s Payment Account to the Payer’s Payment Service Provider or to another institution/authority if it is required to do so under the enforceable decision of a court, state authority, public administration authority, or under the applicable legal regulations. Exchange rate differences, if any, will be borne by the person who is responsible for the incorrect Transfer Order or for incorrect settlement.
18.104.22.168. If, owing to fault on its part, the Client sends funds to the wrong account or identifies a payment incorrectly, the Client will have no entitlement to corrective settlement, neither to damages nor other compensation from Sunpay.
4.2.4. Responsibilities of Payment Service Providers
22.214.171.124. Sunpay will be responsible for the crediting of payments to the Payee’s account and for transferring payments from the Payee’s account.
126.96.36.199. If an incoming or outgoing Payment Transaction is incorrectly processed by Sunpay, Sunpay will correct the Transaction in accordance with the contractual conditions and statutory requirements. The Client will not be entitled to claim damages for such incorrectly processed Transaction.
4.3. Electronic Payment Services
4.3.1. Authentication, Authorization, and Identification of Persons
188.8.131.52. Authentication Data are automatically generated upon establishment of access to Payment Account. Authentication Data will refer to:
a) PID – a static alphanumeric string sent to the owner to his e-mail. PID validity will be unlimited.
b) Password – a static alphanumeric string exclusively determined by the owner. Sunpay will not have access to the password, nor will they request it from the owner at any time. Password will be valid for one calendar year from its last change.
c) Code word – a static alphanumeric string exclusively determined by the owner. Sunpay will use this word to recover the Client’s Password or Authentication.
184.108.40.206. In order to subject payments and currency exchange operations, the Sunpay system sends a confirmation code to the Client (by SMS or by e-mail);
220.127.116.11. Any acts performed using Authentication Data will be, without exception, deemed to be acts performed by the persons to whom these data were allocated and the Payment will be considered properly authorized.
18.104.22.168. If the Authentication Data are incorrectly entered several times, Sunpay will be entitled to block these Authentication Data. After thorough verification, the Client will be entitled to receive new Authentication Data on request.
22.214.171.124. If an account is cancelled, Authentication Data enabling access to that particular account will be cancelled, too.
126.96.36.199. If the Client suspects that Authentication Data have been misused, it will be obliged to report the case to Sunpay without delay.
188.8.131.52. The validity period of Authentication Data is not limited, but may be cancelled or changed by Sunpay at any time, of which the Client will be informed in due time.
184.108.40.206. Sunpay will be entitled to change the specifications, method of activation, expiration, and replacement with Authentication Data of another type, and the limits and other restrictions applying to the use of Authentication Data. The Client will be obliged to observe the security instructions/guidelines and regulations pertaining to the execution of Transfer Orders and to communication via Website.
4.3.2. Authorized Persons
220.127.116.11. Sunpay will not be liable for any damage caused to the Client by the Authorized Person’s acts / use of Authentication Data by the Authorized Person.
18.104.22.168. Responsibility for the use of Authentication Data will be borne by the person to whom Authentication Data were allocated, i.e. the Authorized Person. The Authorized Person’s responsibility towards Sunpay for the use or misuse of Authentication Data will be governed by the provisions of these General terms pertaining to liability for damage. Sunpay will provide Authentication Data to the Authorized Person only. If the Client wishes to provide Authentication Data to a person who is not the Authorized Person, the person concerned is to be authorized and the establishment of a right to dispose of the Payment Account and the funds held on that Account.
4.3.3. Cancellation and Expiration of Authentication Data
22.214.171.124. A request to block Authentication Data may be submitted by the Authorized Person or by the Client.
126.96.36.199. Authentication Data will be automatically deleted upon termination of contract relation with Sunpay.
5 INSTANT BANK TRANSFERS (SUNPAY PAYMENT SYSTEM)
5.1 The System Sunpay provides the most streamlined process of acquisition, implementation and performance of certain transactions in the system. The Client has the right to use the System Sunpay only for payment services and only in case of valid and properly concluded cooperation agreements with business partners who are the real providers of goods and services paid through the System Sunpay.
5.2 Any Transaction processed within Sunpay services are considered to be the Payment Transactions.
5.3 Sunpay may unilaterally change the scope and form of services provided within Sunpay.
5.4 The Client will be responsible for damage incurred to Sunpay as a result of fraudulent acting, incorrect use or misuse of Sunpay service, including damages caused by subjects who the Client allowed or didn´t restrict to access the service or Communication Channel.
6.1 Any communication between Sunpay and the Client will take place primarily through the Website, which is designed for the exchange of information between Sunpay and the Client. Disclosure of any information by Sunpay via the Website means that the relevant information is duly delivered to the Client and is effective. The contracting parties will be entitled to use other additional forms of communication, too.
6.2 Communication between Sunpay and the Client is possible in the following forms:
d) Mail (post).
6.2.1. In case of communication via Website, e-mail message is considered delivered on the following Business Day.
6.2.2. E-mail communication is possible to addresses email@example.com or on the website: sunpay.ca. Such communication is used only in regard to matters that are classified by Sunpay as safe. E-mail message is considered delivered on the following Business Day.
6.2.3. In case of communication through the post, letters are delivered to the other party’s address, which is given in the Agreement as amended. Letters are considered delivered on the third day after delivery of the notice saying that the letter cannot be delivered to the other party or that the letter was rejected or was not collected by the other party within the collection period, even if the addressee has no knowledge of the mail.
6.2.4. Sunpay will not be responsible for any mistake, inaccuracy or technical defect that is not caused by Sunpay.
6.2.5. The Client agrees that Sunpay will record, even without prior notice, any ongoing communication between Sunpay and the Client using any available technical means, and will archive all the records, as well as the copies of any information and documents that Sunpay will receive from the Client and third parties. The Client agrees that Sunpay may at any time use this information for the purposes stated in the contractual conditions or for ensuring compliance with the contractual conditions.
7 PERSONAL AND IDENTIFICATION DATA OF THE CLIENT
7.1 Under the Act, Sunpay will be obliged to identify its Clients throughout the life of the Agreement. Hence, the Client will, at the request of Sunpay, provide any document that Sunpay considers necessary for the accurate identification of its Clients under the applicable generally binding regulations. These documents may include, inter alia, the identification data of persons acting on behalf of the Client.
7.2 For the purpose of identifying payments under the Act, the Client will give Sunpay its consent for being contacted with a request to explain certain transactions on its account if these transactions are considered risky or unusual by Sunpay. The Client’s refusal to provide such information or the provision of insufficient information will be deemed to be a gross violation of these General terms.
7.3 The Client undertakes to provide Sunpay with any important and relevant information on its economic and legal standing or other important information concerning the Client (in particular information that a bankruptcy petition or restructuring proposal was filed, that bankruptcy or foreclosure proceedings were initiated, the Client is unable to pay its payables or is insolvent, the Client is in liquidation, a petition to dissolve the Client was filed, the Client’s amalgamation, merger or demerger was decided, the Client was deprived of or limited in its legal capacity, etc.) as soon as the such information comes to the Client’s knowledge even if the information is not yet effective.
7.4 When concluding the Agreement as well as during the period when the Agreement is in effect, the Client will be obliged to provide to Sunpay information in writing whether the end beneficiaries or persons acting on his behalf cannot be regarded as Politically Exposed Persons pursuant to the Act on Protection Against Legalizing Income from Criminal Activity and Against Terrorism Funding.
8 OFFSETTING RECEIVABLES
8.1 In relation to the Client, Sunpay will be entitled to offset any of its receivables from the Client against any of the Client’s receivables from Sunpay of the same type at any time without prior notice, regardless of whether they are due, statute-barred, contingent or non-contingent, regardless of the legal relationship they arise from and the time when they arise, as well as the receivables of Sunpay that cannot be claimed before a court.
8.2 In order to offset the receivables specified in the previous paragraph, Sunpay will also be entitled to use the funds held on the Client’s accounts regardless of whether the receivables arise in connection with the maintenance of the account or otherwise. The right of Sunpay to offset its receivables takes precedence over the execution of any instruction relating to the Client’s Payment Account.
8.3 Sunpay will also be entitled to offset receivables denominated in various currencies, even if these currencies are not freely convertible, at the exchange rate set by Sunpay for the date when the receivables are to be offset.
8.4 The Client will be entitled to assign receivables due from Sunpay or to transfer payables arising from the Agreement to a third person or to handle these receivables or payables otherwise, including the creation of any security interest in such receivables, but only with the prior written consent of Sunpay.
8.5 The Client acknowledges that Sunpay is entitled to transfer its receivables from the Client to third persons at any time, even without the Client’s consent.
9 LIABILITY FOR DAMAGE
9.1 If the contractual conditions are violated by one of the parties, the aggrieved party will be entitled to compensation for damage, unless the other party proves that the obligations have been violated in circumstances excluding liability, legal facts referring to extraordinary, unpredictable and independent event that has caused damage (unless the Agreement or these General terms stipulate expressly otherwise).
9.2 Circumstances excluding liability on Sunpay side comprise the following events: civil unrest in various forms, fire, flood, terrorist attack, or hacker attack; power supply outage (full or partial); interruption, outage or disruption in computer system operation (hardware or software) or in communication services (including an unexpected EMC outage) on the side of the Client or third parties or by the Client or third parties; any technical breakdown on the side of the Client/Authorized Person in communication with Sunpay; any other extraordinary event, catastrophe, or extraordinary restrictions or instructions making it impossible to obtain the necessary permits in time, which directly or indirectly relate to the individual performances under the Agreement; or any other obstacle occurring independently of Sunpay will and preventing Sunpay from discharging its obligations.
9.3 Sunpay will not be liable for any damage sustained to the Client as a consequence of untrue, incomplete, incorrect or misleading information, instructions or documents provided by the Client (or a person acting on behalf of him) to Sunpay in exercising its rights under the Agreement or failure to provide the required information, instructions or documents in time. The Client will be fully responsible for the correctness, completeness and timeliness of any information, instructions or documents provided to Sunpay by the Client / persons acting on behalf of him.
9.4 Sunpay will not be liable for any damage sustained to the Client as a consequence of not following control and security procedures stated in the Integration Manual while using Communication Channel or if instructions given by the Payer were not stated in the form described in the Integration Manual.
9.5 Client declares /promises that it will compensate Sunpay for any damage resulting from conduct of the Client/person acting on behalf of him in contradiction with the contractual conditions or from negligence on the Client’s side, in respect of its obligations, including the payment of any direct or indirect costs, expenses, penalties, fees or charges in connection with such damage, its prevention, and/or compensation for the damage so caused. The Client undertakes to pay compensation for the damage caused, lost profit, or costs incurred under the previous clause within thirty (30) days of the date of delivery of the damage/individual costs quantified in writing.
9.6 The amount of damages that Sunpay undertakes to pay to the Client in the event the contractual obligations are violated will be limited to the amount of all fees and charges paid to Sunpay by the Client over the last twelve (12) months.
9.7 The imposition of contractual penalties under the provisions of the Agreement or these General terms will not affect the right of the aggrieved party to claim full compensation for damage.
10 COMMON AND FINAL PROVISIONS
10.1. Applicable Law and Jurisdiction
10.1.1. The Commercial conditions do not affect the provisions of the generally binding legal regulations governing the protection of the consumer.
10.1.2. The Provider reserves the right to make changes to the Commercial conditions, and both the amended and applicable Commercial conditions are considered at the time of their publication on the Internet at sunpay.ca.
10.1.3. The Client has the right to terminate the contract within one month from the date of published changes in the Commercial conditions by his written notice of termination delivered to the Sunpay. If the Client does not terminate the contract, it will be considered as his unconditional consent to the changes in the Commercial conditions.
10.2. Final Provisions
10.2.2. If there are more persons on the Client’s side as parties to the contractual relationship between Sunpay and the Client, the obligations of the Client and such persons towards Sunpay will be joint and several, unless these General terms or the Agreement stipulate otherwise.
10.2.3. If any of the provisions of the Agreement or the General terms is or may become invalid, ineffective, and/or unenforceable, this will not affect the validity, effectiveness, and/or enforceability of other provisions of the Agreement or these General terms. In such a case, Sunpay undertakes, upon contract with the Client, to replace such provision by a new provision, which will be as similar as possible in terms and content and purpose.
10.2.4. With a notice of termination entering into effect, the Client will lose its right to use the logos of Sunpay and the Card Companies on its Portal, and therefore it will remove these logos from its Internet Portal without delay.
10.2.5. By signing the Agreement and these General terms, the Client declares that he/she/it is fully aware of the legal and other consequences resulting from failure to comply with these General terms and will thus give its consent to the provision of any information on the Client to other banks on the basis of the above provisions.
10.2.6. Any fees or other financial obligations incurred to the Parties in connection with the discharge of obligations under the Agreement and these General terms will be paid by each party separately as they incur to them, unless the parties agree otherwise.
Terms of service
Complaint management policy
SUN PAY LIMITED
106-460 DOYLE ROAD,
KELOWNA, BC, V1Y0C2, CANADA
+1 202 773 3960