Canada Mobile Payments Buyer Agreement
Last updated: January 5, 2015
This Canada Mobile Payments Buyer (“Agreement”) is a legal agreement between you (“you,” “your”) and Canada Mobile Payments, Inc. (“Canada Mobile Payments,” “we,” “our” or “us”) governing your use of the Canada Mobile Payments Sites website (“Canada Mobile Payments Sites), Canada Mobile Payments Order mobile application (“Order”), and associated products and services (together, the “Services”). Please read this Agreement carefully. This Agreement is divided into two parts. Part One explains all of the terms that govern your use of the Services. Part Two contains additional legal terms, including provisions that limit our liability to you and require individual arbitration for any potential legal dispute. To use the Services, you must accept all of the terms of this Agreement.
Part One: Terms Governing Use of the Service
- Canada Mobile Payments Buyer Account Registration.
The Services allow you to make credit or debit card purchases directly from certain Sellers that use Canada Mobile Payments payment processing services (“Sellers”). To use Canada Mobile Payments Sites, you may choose to do a guest checkout without opening a Canada Mobile Payments Buyer Account. Or, you may open an account with Canada Mobile Payments (“Canada Mobile Payments Buyer Account”) and associate a valid credit or debit card (a “Card”) with that Canada Mobile Payments Buyer Account. To use Order, you must open a Canada Mobile Payments Buyer Account and associate a Card with that Canada Mobile Payments Buyer Account. We reserve the right to suspend or terminate the Canada Mobile Payments Buyer Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
- Your Authorization.
By engaging in a transaction directly with the Seller via the Services, you authorize such Seller to charge to your Card to complete the purchase. In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with any purchase you make from a Seller, you also authorize a credit to your Card to accomplish that transaction.
- Restricted Use.
You may use the Services only to the extent that you obey all laws, rules, and regulations applicable to your use of Services.
- Unauthorized or Illegal Use.
We may decide not to process a transaction if we believe that the transaction is in violation of any Canada Mobile Payments agreement, or exposes you, other Canada Mobile Payments users, our partners, or Canada Mobile Payments to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Canada Mobile Payments Buyer Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Canada Mobile Payments Buyer Account, and any of your transactions with law enforcement.
You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by Canadian & US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
- Your Canada Mobile Payments Seller Loyalty Programs.
Sellers accepting Canada Mobile Payments may choose to offer loyalty programs to reward their customers. These loyalty programs may be linked to your Canada Mobile Payments Buyer Account. Any such loyalty programs and the rewards associated with them are offered by the Seller alone (and not by Canada Mobile Payments). Should you have questions about any Seller loyalty program, please ask the Seller for more information about the program, including any applicable terms and conditions. Rewards associated with Seller loyalty programs have no cash value, and any Seller may choose to discontinue its loyalty program(s) at any time.
- Pricing Information.
The purchase price for items displayed in the Services are set by Sellers. Canada Mobile Payments is not responsible for the price set by the Seller or the accuracy thereof. In the event an item has been mispriced or unclearly priced, you should contact the individual Seller for additional information.
- Your Privacy.
By using the Services, you give Canada Mobile Payments permission to share with Sellers information regarding your purchases through the Services. You also give us permission to import into your Canada Mobile Payments Buyer Account and to share with Sellers information about purchases you have made using your Card and any of Canada Mobile Payments products or services.
- Customer Service.
You understand and agree that Canada Mobile Payments is not responsible for the goods and services that you purchase using the Services. The Sellers, and not Canada Mobile Payments, provide those goods and services. The Seller, and not Canada Mobile Payments, is responsible for customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a Seller’s personnel, policies, or processes. The Card payment network and/or other entity issuing your Card, and not Canada Mobile Payments, is responsible for customer service related to your Card.
Please note that for sales via the Services, you may be limited in your ability to receive a partial refund.
- Disclosures and Notices.
Upon acceptance of this Agreement, you confirm that you have read, understood, and accepted Canada Mobile Payments E-Sign Consent policy. You agree that Canada Mobile Payments can provide disclosures and notices required by law and other information about your Canada Mobile Payments Buyer Account to you electronically by posting it on our website, or by emailing it to the email address listed in your Canada Mobile Payments Buyer Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
If your Canada Mobile Payments Buyer Account is terminated for any reason or no reason, you agree: (a) to immediately stop using the Services, (b) that the license provided under this Agreement shall end, (c) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (d) that Canada Mobile Payments shall not be liable to you or any third party for termination of access to the Services or for deletion of your information or account data.
- Your Right to Terminate.
You may terminate this Agreement at any time by closing your Canada Mobile Payments Buyer Account and ceasing to use the Services.
- Suspension or Termination by Us.
We may terminate this Agreement and close your Canada Mobile Payments Buyer Account for any reason or no reason at any time. We may also suspend the Services and access to your Canada Mobile Payments Buyer Account if you (a) have violated the terms of this Agreement, any other agreement you have with Canada Mobile Payments, or Canada Mobile Payments policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
- Effect of Termination.
We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs owed to the Seller and accrued prior to the termination and any other amounts owed by you as provided in this Agreement.
Part Two: Additional Legal Terms
- Your License.
Canada Mobile Payments grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services solely to make payments in accordance with this Agreement. The Services include our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance) thereto provided to you by Canada Mobile Payments.
While we want you to enjoy the Services, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Canada Mobile Payments system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Canada Mobile Payments referencing this Section 15 (i) that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Canada Mobile Payments; (iii) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Services or any Canada Mobile Payments service or product, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Services except as expressly allowed under this section.
The Services are licensed and not sold. Canada Mobile Payments reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. Canada Mobile Payments owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any rights to Canada Mobile Payments trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our other products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Canada Mobile Payments under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Canada Mobile Payments does not waive any rights to use similar or related ideas previously known to Canada Mobile Payments, or developed by its employees, or obtained from sources other than you.
- Representation and Warranties.
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with this Agreement.
- No Warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. — USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF SELLERABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CANADA MOBILE PAYMENTS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CANADA MOBILE PAYMENTS, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIR– USES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE — USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
CANADA MOBILE PAYMENTS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND CANADA MOBILE PAYMENTS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
- Limitation of Liability and Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CANADA MOBILE PAYMENTS, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, — USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE — USE OF, INABILITY TO — USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL CANADA MOBILE PAYMENTS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR — USE OF THE SERVICES, YOUR CANADA MOBILE PAYMENTS BUYERACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CANADA MOBILE PAYMENTS, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR — USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR — USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIR– USES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE — USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) — USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CANADA MOBILE PAYMENTS, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CANADA MOBILE PAYMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Services are controlled and operated from facilities in Canada. Canada Mobile Payments makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Canada and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by Canada, or are a foreign person or entity blocked or denied by Canada government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in Canada.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact the Canada Mobile Payments Support Center with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration. “Disputes” between you and Canada Mobile Payments (“Canada Mobile Payments” includes its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees)) are defined for the purposes of this Agreement to include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Canada Mobile Payments including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, Canada Mobile Payments advertising, and any use of Canada Mobile Payments software or services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement.
- Binding Individual Arbitration.
You and Canada Mobile Payments agree to arbitrate all Disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST CANADA MOBILE PAYMENTS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location, or a location ordered by the arbitrator. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, Canada Mobile Payments will pay all the arbitration fees. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, Canada Mobile Payments will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Canada Mobile Payments also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of Canada Mobile Payments services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.
- Governing Law.
This Agreement and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
- Limitation on Time to Initiate a Dispute.
Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
- Right to Amend.
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at Canada Mobile Payments.com or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement (including the binding individual arbitration clause) that was in place when the Dispute arose.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Canada Mobile Payments without restriction.
- Third Party Services and Links to Other Web Sites.
- Other Provisions.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Canada Mobile Payments, and they describe the entire liability of Canada Mobile Payments and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Services. In the event of a conflict between this Agreement and any other Canada Mobile Payments agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Canada Mobile Payments may have under trade secret, copyright, patent, or other laws. Canada Mobile Payments failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 5, 6, 7, 8, 10, 11 and 16 – 28.