Cash Guard provides businesses (“Providers”) and customers of such Providers (“Customers” and together with the Providers “Transaction Users,” or “Users”) with the opportunity to have funds payable pursuant to transactions between Transaction Users held and by Cash Guard, as escrow agent (the “Escrow Services”), pursuant to these Terms and Conditions and the Escrow Terms and Conditions (collectively the “Agreement”). The Escrow Services are the only services provided by Cash Guard. CASH GUARD CANNOT AND DOES NOT CONTROL THE CONDUCT, ACTIONS OR INACTIONS OF ANY USER, THE CONDUCT, ACTIONS OR INACTIONS OF ANY THIRD PARTY RETAINED BY ANY USER (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY RETAINED BY A USER TO PROVIDE GOODS OR SERVICES TO OTHER USERS), NOR DOES CASH GUARD CONTROL OR SUPERVISE THE PERFORMANCE OF TRANSACTION OBLIGATIONS BETWEEN TRANSACTION USERS. CASH GUARD IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL INTERACTIONS, INCLUDING DISPUTES CONCERNING TRANSACTIONS BETWEEN TRANSACTION USERS. TRANSACTIONS BETWEEN TRANSACTION USERS ARE MADE AT USERS’ OWN RISK. Users are independent from Cash Guard and are not partners, agents, representatives or employees of Cash Guard or otherwise engaged in a joint venture with Cash Guard. Cash Guard is not, and will not be, a contracting party in any agreement made between Transaction Users with respect to services or goods exchanged. For greater certainty, the Escrow Services provided by Cash Guard shall be solely governed by the Agreement and such Agreement shall be deemed independent from goods and services agreements between Transaction Users.
Fees payable by Transaction Users will be those fees posted on the Website https://mycashguard.ca (the “Fee Schedule”) at the time the underlying transaction is initiated and include, for greater certainty, any interest earned on the Escrowed Funds. All fees paid to Cash Guard are non-refundable.
In order to use the Escrow Services:
- Transaction Users must register for an account on the Website.
- A Provider or Customer creates transaction specific payment terms and provides other relevant information through screens on the Website, including, account information to which or from which payments will be made by the Provider or Customer, as the case may be (the “Escrow Details”), and agrees to be bound by the Escrow Terms and Conditions.
- The Provider or Customer that created the Escrow Details invites the counterparty (the “Counterparty”) to review and accept the Escrow Details. The Counterparty reviews and accepts or rejects the Escrow Details and, if accepted, agrees to be bound by the Escrow Terms and Conditions.
- If the Escrow Details have been accepted by the Counterparty, payment by the Customer to Cash Guard, or its authorized agents, of the amounts to be paid to Cash Guard or its authorized agents, as escrow agent (the “Escrowed Funds”), in the amounts and at the times set forth in the Escrow Details.
Cash Guard is not liable to any Transaction User if Cash Guard does not provide Escrow Services to a Transaction User as a result of any of the aforesaid requirements not being completed by such Transaction User or a Counterparty in respect of a particular transaction.
The Escrowed Funds will be held by Cash Guard without any interest on the Escrowed Funds being paid or payable to any Transaction User. Interest earned on Escrowed Funds, if any, is earned by Cash Guard as a fee, in addition to transaction fees charged by Cash Guard as described in the Fee Schedule.
Transaction Users are required to agree to the Escrow Terms and Conditions at the time a transaction using the Escrow Services is initiated. The Agreement contains all of the rights and obligations of Transaction Users and Cash Guard regarding the Escrow Services and you are advised and encouraged to review them with legal counsel prior to registering an account through the Website or entering into a transaction with another User and using the Escrow Services.
You may use the Escrow Services only if you are a resident of Canada, have reached the age of majority where you live and you have the ability to enter into legally binding contracts under applicable law. You may not use the Escrow Services if you live in a jurisdiction where use of the Escrow Services or any part thereof is illegal or prohibited. It is solely your responsibility to determine whether your use of the Escrow Services is lawful, and you must comply with all applicable laws.
Cash Guard shall retain the right not to provide the Escrow Services and shall not be liable for refusing to provide Escrow Services, if, for any reason, Cash Guard, in its sole judgment, determines that the Underlying Transaction or performance of the Escrow Services violates the law of any national or subnational body or would cause Cash Guard to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline.
Cash Guard will 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 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 the Cash Guard under these Terms and Conditions, 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.
In discharging its duties, Cash Guard: (i) may rely on the opinion, advice, recommendation or statement of any professional or other consultant or agent employed or engaged by Cash Guard; (ii) will not be bound to act in accordance with any direction, notice, order or request unless given in writing; (iii) may rely exclusively on any notice, demand, request, letter, certificate, agreement or any other 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 which Cash Guard may assume to be correct and accurate; (iv) may rely exclusively on any direction, notice, order or request of a Transaction User in respect of all matters arising in respect of Escrow Services, the Escrowed Funds or the Agreement; (v) 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 these Terms and Conditions or take any other action in relation thereto; (vi) except to the extent arising out of fraud, gross negligence or wilful misconduct, shall not be liable to Transaction Users for: (a) any error in judgement or act done or step taken or omitted by Cash Guard in good faith, or for any mistake, in fact or in law, or for anything Cash Guard may not do or refrain from doing in connection herewith; or (b) incidental, consequential, special or punitive damages, regardless of their cause or whether such damages were foreseeable.
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.