Escrow Terms and Conditions
The following provisions provide for the terms and conditions (the “Escrow Terms and Conditions”), governing, among others: (i) the escrow services to be provided by Cash Guard Corp. (the “Company” or “Cash Guard”) to Transaction Users; (ii) the rights and obligations of Cash Guard and Transactions Users with respect to funds to be held by in escrow by Cash Guard, as Escrow Agent; (iii) the rights and obligations of Cash Guard to release funds to Transaction Users, legal counsel, a new escrow agent, or a court of competent jurisdiction; and (iv) the liability of Cash Guard to Transaction Users in respect of this Agreement and the Escrow Services.
In these Escrow Terms and Conditions
(a) “Agreement” means these Escrow Terms and Conditions, the Escrow Information and Website Terms and Conditions of Use.
(b) “Escrow Services” means escrow and transaction management services provided by Cash Guard to Transaction Users.
(c) “Escrowed Funds” means amounts paid by Transaction Users to Cash Guard, as escrow agent, pursuant to the Escrow Information and, for greater certainty, shall not be deemed to include the Escrow Fees.
(d) “Escrow Information” means those particular terms and conditions in respect of an Escrow Transaction accepted by Transaction Users, as amended from time to time in accordance with this Agreement.
(e) “Escrow Transaction” means the use of the Website for the purpose of effecting a transfer of funds on an Underlying Transaction upon and subject to the terms and conditions of the Agreement.
(f) “Escrow Fees” means amounts payable to Cash Guard as a fee for the Escrow Services.
(g) “Transaction Users” means those persons whom have engaged Cash Guard through the Website to act as escrow agent in respect of a particular Escrow Transaction.
(h) “Terms and Conditions” means the Website Terms and Conditions of Use located at https://mycashguard.ca/legal-service-agreement/.
(i) “Underlying Transaction” means the transaction underlying a Transaction User’s use of the Escrow Services.
(j) “Website” means the website owned and operated by Cash Guard located at https://cashguard.app
Acceptance and Formation
By clicking to accept the provisions of these Escrow Terms and Conditions, you accept and agree to be bound hereby. Upon all Transactions Users to an Underlying Transaction communicating acceptance of the Escrow Information to the other Transaction Users and communicating acceptance of these Escrow Terms and Conditions to Cash Guard and upon Cash Guard communicating its acceptance of the Escrow Information to Transaction Users, a binding agreement shall be deemed to have made between such Transaction Users and Cash Guard upon and subject to the terms and conditions of the Agreement.
This Agreement may be amended by agreement between all Transaction Users and Cash Guard in respect of a particular Escrow Transaction by a Transaction User submitting revised Escrow Information to all other Transaction Users and Cash Guard through the processes permitting such amendment on the Website. Upon acceptance by the other Transaction Users clicking the “I agree to the terms of the CashGuard escrow agreement” button and Cash Guard notifying the Transaction Users of its acceptance by email, the Agreement will be deemed so amended. For greater certainty, Cash Guard will be under no obligation to accept any amendment to this Agreement and no amendment to the Agreement shall be deemed to have occurred unless such amendment is processed through the processes permitting such amendment on the Website and accepted by all parties.
The Transaction Users designate and appoint Cash Guard to act as escrow agent under this Escrow Agreement in respect of the particular Escrow Transaction, and the Escrow Agent hereby accepts such appointment in accordance with, and subject to the terms and conditions contained in the Agreement.
The amount and Transaction User responsible for payment of Escrow Fees are set forth in a fee schedule posted here: https://cashguard.app (the “Fee Schedule”). Escrow Fees are due and payable upon the formation of the Agreement between the Transaction Users and Escrow in accordance with these Escrow Terms and Conditions. The parties hereby acknowledge, understand and agree that the Escrow Fees will be earned and payable upon Cash Guard’s agreement to act as escrow agent to the Transaction Users. All amounts owed by Transaction Users as Escrow Fees and the interest thereon will, at the sole discretion of Cash Guard, be payable out of the Escrowed Funds in priority to amounts owing to any and all other parties. For greater certainty, if an Escrow Transaction is cancelled by a Transaction User for any reason, Cash Guard shall be entitled to payment of the Escrow Fees from the Escrowed Funds in priority to payment of the Escrowed Funds to any Transaction User. Escrow Fees unpaid when due will bear interest from the expiration of such thirty (30) days at a rate of 12% per annum, payable on demand.
Deposit of Escrowed Funds
The Transaction Users required to deposit funds into Escrow pursuant to the Escrow Information will pay the Escrowed Funds to Cash Guard at the times and in the amounts set forth in the Escrow Information, and Cash Guard will deposit the Escrowed Funds into an account at such Canadian chartered bank or other financial institution as may be determined by Cash Guard in its sole and absolute discretion. Payments of Escrowed Funds to Cash Guard may be made by such methods as are stipulated on the Website from time to time. Payments of Escrowed Funds to Cash Guard may be subject to such holds as Cash Guard deems necessary or advisable to confirm that such payment will be honoured and not rejected by the Transaction User’s financial institution or for delays in processing.
Upon Cash Guard’s determination that the Escrowed Funds paid to it will be honoured by the originating financial institution or upon completion of Cash Guard’s processing of payments made by debit, credit card or online payment mechanisms, as the case may be, Cash Guard will provide written notice to the Transaction Users by email that the Escrowed Funds are in escrow.
Failure to Deposit Escrowed Funds
In the event that a Transaction User fails to deposit Escrowed Funds within five (5) Business days of the date due for same as set forth in the Escrow Information, Cash Guard may, in its sole discretion and on a without fault basis, terminate the Escrow Transaction and cease providing the Escrow Services and disburse Escrowed Funds as have been previously paid to Cash Guard to such Transaction User as Cash Guard, in its sole discretion, deems entitled to the Escrowed Funds.
Interest on Escrowed Funds
All interest or other investment income accruing on the Escrowed Funds or any part thereof shall accrue to the benefit of Cash Guard, shall not be added to and included in the Escrowed Funds.
Payment of Escrowed Funds Pursuant to Escrow Information
Where a Transaction User becomes entitled to receive a payment from the Escrowed Funds pursuant to the terms of the Escrow Information and the Underlying Transaction, such Transaction User will issue a request to Cash Guard and the other Transaction Users in respect of such Escrow Transaction through the applicable processes available on the Website for payment from the Escrowed Funds. The Transaction User receiving such request will, without delay, authorize release of the requested payment by clicking the “I agree to the terms of the CashGuard escrow agreement” button on the relevant webpage of the Website and upon receipt of such authorization Cash Guard shall be entitled to release such funds to the account of the Transaction User entitled to such payment less Escrow Fees payable to Cash Guard. If the Transaction User receiving such request disputes the entitlement of the Transaction User making such request to the payment, the Transaction User will notify all other parties to the Escrow Transaction of the dispute, without delay, by clicking the “I REJECT” button on the Website and provide details regarding such Transaction User’s reasons for rejecting the payment request (a “Dispute Notification”). If a Transaction User fails to provide the Dispute Notification within fourteen (14) days of a request for payment being made through the Website, Cash Guard may, but shall not be obligated to, release all or such portion of the Escrowed Funds to the requesting Transaction User.
Discharge of Cash Guard
Cash Guard’s duties with respect to the delivery of the Escrowed Funds shall be fully performed by making payment of the Escrowed Funds in accordance with the Agreement. Upon payment of the full amount of the Escrowed Funds in accordance with the Agreement, the obligations of Cash Guard shall be fully discharged and the Escrow Agent shall have no further responsibilities to the Transaction Users thereafter.
Rights, Duties, Liabilities and Indemnities of Cash Guard
The acceptance by the Cash Guard of its duties and obligations under the Agreement is subject to the following terms and conditions which the Transaction Users hereby agree shall govern the rights, duties, liabilities and indemnities of the Escrow Agent:
- Cash Guard shall have no duties or responsibilities with respect to the Escrowed Funds except as specifically set out in the Agreement. If in one or more instances the Cash Guard takes any action or assumes any responsibility which it is not specifically empowered to take or assume pursuant to the provisions hereof, neither the taking of such action nor the assumption of such responsibility will be deemed to be an express or implied undertaking on the part of Cash Guard that it will take the same or similar action or assume the same or similar responsibility in any other instance.
- Cash Guard may comply with any laws, regulations, orders, rules, directions or guidelines (whether or not having the force of law) of competent authorities which conflict, or might conflict, with any duty or responsibility of Cash Guard hereunder, and Cash Guard will not be liable if it fails to perform or comply with its duties and responsibilities hereunder by reason of any such conflict or potential conflict, whether such conflict or potential conflict is actual or reasonably apprehended by Cash Guard.
- Cash Guard may employ or engage, by contract or otherwise, professional and other consultants and agents, including lawyers and accountants, in order to perform or assist it in the performance of its duties and responsibilities hereunder, and may, but shall not be bound to act upon any such opinion or advice.
- Dispute. If any dispute arises with respect to any payment of or right of possession to the Escrowed Funds, or any portion thereof, or if at any time the Cash Guard is not able to determine its proper course of action with respect to its obligations hereunder, Cash Guard may, at the sole discretion of Cash Guard:
- pay any amount into a court of competent jurisdiction;
- retain in its possession, without liability to anyone, all or any part of the Escrowed Funds until the dispute has been settled by the parties concerned or by a final order, decree or judgment of the Court and all appeal rights in respect thereof have been exhausted or have expired; or
- institute interpleader proceedings pursuant to its own application to the Court, provided however that Cash Guard shall not be under any duty whatsoever to institute any such proceedings;
- take such other actions as it is expressly entitled to under the Agreement, including, without limitation, payment of all or such portion of the Escrow Funds requested by a Transaction User where a Dispute Notification is not submitted within the time required under this Agreement;
- Cash Guard shall have no obligation to review or confirm the accuracy of any calculation of any amounts to be paid by Cash Guard pursuant to the provisions of the Agreement;
- TRANSACTION USERS HEREBY AGREE TO JOINTLY AND SEVERALLY INDEMNIFY AND HOLD HARMLESS CASH GUARD AND ITS PARTNERS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS, INCLUDING REASONABLE LEGAL OR ADVISOR FEES AND DISBURSEMENTS, OF WHATEVER KIND AND NATURE WHICH CASH GUARD MAY INCUR OR SUSTAIN IN CONNECTION WITH THE AGREEMENT, OR WHICH MAY AT ANY TIME BE IMPOSED ON, OR ASSERTED AGAINST CASH GUARD IN RELATION TO ITS DUTIES AND OBLIGATIONS HEREUNDER, OTHER THAN SUCH LIABILITIES, LOSSES, DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS ARISING BY REASON OF FRAUD OR WILFUL MISCONDUCT ON THE PART OF CASH GUARD. THIS INDEMNITY SHALL SURVIVE THE RESIGNATION OF CASH GUARD, OR THE TERMINATION OF THE AGREEMENT.
- Cash Guard and its partners, officers, employees and agents, so long as it or they act in good faith
- may rely on the opinion, advice, recommendation or statement of any professional or other consultant or agent employed or engaged by Cash Guard;
- will not be bound to act in accordance with any direction, notice, order or request unless given in writing;
- may rely exclusively on any instructions or other written direction, written notice, written order, written request or document which Cash Guard believes, in good faith, to be genuine, and Cash Guard will not be required to verify the authenticity, authorization, due execution or validity of any such document or the facts or statements contained therein Cash Guard may assume to be correct and accurate;
- may rely exclusively on any direction, notice, order or request of the Transaction Users in respect of all matters arising under this Agreement pertaining to such Transaction Users;
- will not be required to incur any expenditure pursuant to the provisions of the Agreement or to institute, defend or intervene in any legal action to enforce the terms and conditions of the Agreement or take any other action in relation thereto;
- except to the extent arising out of fraud, gross negligence or wilful misconduct, Cash Guard shall not be liable to Transaction Users for: (i) any error in judgement or act done or step taken or omitted by it in good faith, or for any mistake, in fact or in law, or for anything it may not do or refrain from doing in connection herewith; or (ii) incidental, consequential, special or punitive damages, regardless of their cause or whether such damages were foreseeable.
Resignation of Cash Guard
Cash Guard may resign its position and be discharged from all further duties and liabilities in respect of the Escrow Services, Escrowed Funds and Agreement by giving to the Transaction Users notice of its withdrawal at any time. In the event of Cash Guard providing notice of resignation, the Transaction Users shall within ten (10) days appoint a new escrow agent which shall execute, acknowledge and deliver to each of the parties hereto, including Cash Guard, an instrument accepting such appointment. Upon such appointment, Cash Guard will deliver to the new escrow agent the Escrowed Funds and such other documents and information relating to the performance of its duties hereunder which may then be in Cash Guard’s possession and which may be requested by the new escrow agent. In the event Cash Guard has not received notice of appointment of the new escrow agent within the above-stated ten (10) day period, Cash Guard may, in its sole discretion, retain such funds until such time as the Transaction Users appoint a new escrow agent, pay the Escrowed Funds, in trust, to legal counsel jointly appointed by all Transaction Users whom are parties to the underlying transaction, or pay the Escrowed Funds into a court of competent jurisdiction.
Governing Law and Dispute Resolution
In the event of any controversy, dispute, disagreement or claim arising out of or relating to or in connection with the Website the Terms and Conditions, these Escrow Terms and Conditions, the Escrow Services, an Escrow Transaction or the Escrowed Funds (a “Dispute”), Transaction Users and Cash Guard agree to enter into good faith negotiations to resolve such dispute within 14 days of a Transaction User or Cash Guard notifying all other parties in writing of such Dispute.
In the event that a Dispute has not been resolved through good faith negotiations within the time frame as aforesaid, then except for matters that are expressly excluded from arbitration hereunder, such Dispute shall be finally and conclusively resolved by arbitration under the ADRIC Rules of the ADR Institute of Canada. Each Transaction User and Cash Guard acknowledges, understands and agrees that they are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding in any jurisdiction. The following provisions shall govern any arbitration hereunder:
- The legal seat of arbitration shall be the same as the provincial law governing these Escrow Terms and Conditions.
- There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof or in the event the parties are unable to agree, the arbitrator will be appointed by the ADR Institute of Canada in accordance with its ADRIC Rules.
- The language of the arbitration and award shall be English.
- The parties shall equally share the fees of the arbitrator and the facility fees.
- The parties shall each bear their own legal costs and expenses of the arbitration.
- Any decision of the arbitrator shall be final and binding on the parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.
All Disputes shall be governed by the laws of the Province of Alberta, Canada.
Encumbrances on Escrowed Funds
No Transaction User shall pledge, convey, mortgage, assign, hypothecate, grant a security interest in or otherwise encumber in any way any portion of the Escrowed Funds held under the Agreement or any of its rights or interests in respect thereof, whether arising under the Agreement or otherwise, unless and until the Escrowed Funds, or such party’s portion thereof, has been disbursed to such party in accordance with the Agreement.
Neither this Agreement nor any of the rights or obligations hereunder may be assigned by a Transaction User without the prior written consent of Cash Guard, which may be unreasonably withheld. Cash Guard may assign its rights under this agreement without the consent of the Transaction Users provided that the assignee assumes all of the duties, obligations, liabilities and responsibilities of Cash Guard in the Agreement. Subject to the foregoing, the Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors, heirs, personal representatives and permitted assigns, and another person shall have any right, benefit or obligation under the Agreement as a third party beneficiary or otherwise.
In the event that any one or more of the provisions contained in the Agreement or in any other document referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement.
The titles, captions or headings of the sections herein are for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Escrow Agreement.
Governing Law; Jurisdiction
The Agreement is governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein without regard to principles of conflicts of law that would impose a law of another jurisdiction. The parties hereto irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom.
Time shall be of the essence of the Agreement and no extension or variation of the Agreement shall operate as a waiver of this provision and, for greater certainty, no extension of time or period of grace shall be implied even where a party has in any fashion responded to or acted upon a particular notice or action given or taken out of time.
These Escrow Terms and Conditions and any amendment, supplement, restatement or termination of any provision of this Escrow Agreement may be executed in any number of counterparts, and may be delivered by fax, email or other means of electronic transmission with the same effect as if all the parties had signed the same document, and will become effective when one or more counterparts have been signed by all of the parties and delivered to each of the other parties. All counterparts will be construed together and evidence only one agreement, which, notwithstanding the dates of execution of any counterparts, will be deemed to be dated the reference date set out above.