MERCHANT TERMS OF USER
August 1, 2022
HEREIN CONTAINS CRUCIAL INFORMATION REGARDING YOUR OBLIGATIONS, RIGHTS, CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU WHEN YOU CHOOSE TO USE ANY AND ALL SERVICES, SOFTWARE, OR HARDWARE (COLLECTIVELY “PLATFORM”) MADE AVAILABLE BY SIMPOPAY INC. (“COMPANY” “SIMPOPAY” “WE OR US” AS CONTEXT REQUIRES). PLEASE READ IT CAREFULLY.
MERCHANT (OR “YOU” OR “YOUR” AS CONTEXT REQUIRES) AGREES TO BE BOUND BY ALL OF OUR LEGAL DOCUMENTS OF WHICH ARE INCORPORATED INTO THESE MERCHANT TERMS BY REFERENCE, WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE, AS APPLICABLE TO THE PARTICULARIZED SERVICES THAT MERCHANT USES.
CERTAIN REFERENCES TO US MAY ALSO BE DEEMED TO APPLY TO OUR FINANCIAL PARTNERS, THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER SAID CLAUSE, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF ON AN INDIVIDUAL BASIS.
BACKGROUND
SCOPE: All parties that wish to utilize the Platform, or entities related to such merchants, any location owned, operated, or affiliated with such merchants, its employees, or personnel (“Merchants”) that wish to utilize the Platform are bound by these terms and conditions (“Terms”) at any moment of using our Platform. Using our Platform or redeeming for such, does not constitute a sale or ownership of any part of the Platform; however, it does grant the Merchant a license to USE such Platform when made available by SIMPOPAY. These Terms and our Privacy Policy apply to any use of the Platform. If you do not agree to any portion of these Terms or our Privacy Policy, please stop using our Platform immediately.
IN THE EVENT YOU BREACH ANY FACET OF THESE TERMS, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION TO IMMEDIATELY TAKE ACTIONS IN REGARD TO MODIFICATION OF YOUR RELATIONSHIP WITH SIMPOPAY, UP TO AND INCLUDING IMMEDIATE TERMINATION.
CAPACITY: You hereby acknowledge that you are of legal capacity to enter these Terms and you agree to bind all your personnel to these Terms. When you take any action on behalf of an entity or an individual, you affirm you have the necessary legal authority to bind such party, if not, you may not use our Platform in any way to the extent such restriction is permissible by law.
Accordingly, other identical businesses owned and/or operated by the contracting entity may utilize these Terms if they follow the same rules as the contracting entity and agree to be bound by these Terms.
All Merchants agree to abide by all laws applicable to them in relation to the Platform. Those who act in contravention of such requirements, will have breached these Terms.
OUR PLATFORM: We offer a digital Platform whereas we provide Merchants and their personnel the opportunity to process orders and redeem gift cards from customers. Our relationship shall never be interpreted to be an agency, partnership, fiduciary or joint venture between us and you, or any other Merchant or customer. You are responsible for your expenses, profits, and losses.
REVIEW MOST UPDATED TERMS: Review these Terms and our Privacy Policy before using the Platform. These Terms are subject to revision without prior notice at any time, in our sole discretion. Any changes will be in effect as of the “Last Updated Date” as shown on our website. Continued use of the Platform after such update(s) will confirm your acceptance of such changes.
OUR RIGHT TO MODIFY/DISABLE PLATFORM OR OFFERINGS: We reserve the right, in our sole discretion, to change, suspend, or discontinue the Platform or any part of such (including availability of any portion) at any time without notice. We may, in our sole discretion, remove some of your products or your whole store from the Platform if we determine that such product or store could subject us to liability or risk such as regulatory, health or safety. By continuing to access or use the Services after revisions have become effective, you agree to be bound by the revised Terms.
ORDER ACCEPTANCE: Merchant may accept orders via the Platform and fill the orders for customers. We assume no responsibility about customer's satisfaction with his or her order. Customer may request to modify an order, reject an order, request a refund, or an exchange; it is your responsibility and your responsibility alone, to determine whether to honor such request. Illegal items may not be sold through the Platform. We may decline orders at our sole discretion, for any reason and at any time, even after we send you and/or a customer a confirmation with the order number and order details. Merchant is responsible to handle all issues and complaints with customers. SIMPOPAY will forward any issues customers may have directly to the Merchant at its earliest convenience.
REFUNDS: Merchants can issue refunds on any order for any amount they choose, via the Platform. When Merchant issues a refund or asks us to issue a refund, credit, or re-order on its behalf, Merchant agrees to cover any SIMPOPAY fee(s) or markup on that order. SIMPOPAY does not return its markup or service fees.
DISPUTES: If a customer disputes a charge for whatever reason, SIMPOPAY or the payment processor, we will notify you of such dispute at its earliest convenience and you alone shall be solely responsible to manage such disputes. Any and all fees associated with any dispute(s) are the responsibility of the Merchant.
MERCHANT PRODUCT PRICING: Merchant is solely responsible for maintaining accurate product listings, including the pricing charged on the Platform. SIMPOPAY has no responsibility to ensure accuracy of any such listing and Merchant will honor any and all Orders made via the Platform regardless of the currency or accuracy of the pricing or description in the listing used to place the order.
INTELLECTUAL PROPERTY AND DATA PRIVACY
MERCHANT INTELLECTUAL PROPERTY
MIP License: Merchant grants to SIMPOPAY a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Merchant intellectual property (“MIP”) as reasonably necessary to transact business. MIP includes trademarks, logos and other materials provided by Merchant to SIMPOPAY.
Failure to follow such standards shall be deemed a breach of the Terms.
INTELLECTUAL PROPERTY COVENANTS
All Merchants of SIMPOPAY that transact business with us in any capacity, even those that purchase items from us for the purpose of growing their business (i.e. hardware) agree to uphold certain standards when taking any action that involves the application, publication, or similar use.
In the event our intellectual property is being used by a Merchant, or an individual or entity for whom the Merchant is the impetus for such individual or entity using our intellectual property, in any way that is inconsistent with the brand integrity standards that we envisioned and upheld since our inception, such Merchant may lose the right to do business with us. Should such violation, and correspondingly, a breach of these Terms, occur, we reserve the right to take any action that would terminate our relationship with Merchant even if Merchant had already purchased the item (such as hardware) displaying our intellectual property, this includes shutting down units of SIMPOPAY hardware.
If the result of the termination of our relationship causes us any damages, such as picking up the hardware or any costs we might have in terms of reimbursing customers or modification of software or hardware on our backend, such fees shall be the sole and exclusive responsibility of the Merchant, such fees must be paid within five (5) business days of SIMPOPAY incurring said fee(s).
Certainly, if the inappropriate use is deemed an infringement of our intellectual property or in some other way is deemed a tort or may have injured us causing broad damages of any form, we reserve the ability to exercise our rights in a court of law, arbitration, and/or mediation or any other jurisdictional venue we deem appropriate. We further reserve the right to pursue both awards of damages and remedies in equity.
Merchants using SIMPOPAY hardware or software, hereby affirm, they will never attempt to tamper, impede the code, reverse engineer, send spiders, sell, display or market anything not explicitly agreed upon by Merchant and SIMPOPAY on such hardware or software, without the notarized, express written consent of the Company.
CONFIDENTIAL INFORMATION
Definition: “Confidential Information” shall mean any confidential or proprietary business, technical or financial information of a party (“Disclosing Party”) provided to the other (“Receiving Party”) in connection with these Terms, via any oral or physical medium, and shall include the terms of this Agreement. Without limiting the foregoing, SIMPOPAY Data is the Confidential Information of SIMPOPAY.
Receiving Party Affirmations: The Receiving Party shall:
Not access or use Confidential Information unless necessary to exercise its rights or perform its obligations in accordance with these Terms.
Not attempt reverse engineering of any facet of the Platform or the Platform in its entirety.
Not disclose or permit access to Confidential Information other than necessary to employees, officers, directors, agents, consultants, independent contractors, agents, service providers, subcontractors and legal advisors (“Representatives”) to exercise its rights or performance of its obligations under and in accordance with these Terms.
Not allow any third party to copy, modify, sell, rent, distribute, lease reverse engineer, or otherwise try to access our source code; damage or impede the Platform; or breach any security protection on the Platform.
Safeguard the Confidential Information from unauthorized access, use or disclosure, exercising at a minimum the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
Generally, comply with competition laws.
Required Disclosures: If required by law to disclose any Confidential Information then, you must promptly notify us, as permitted by law, in writing of such.
DATA
Data Covenants: By using the Platform you agree that all data that goes through the Platform belongs to SIMPOPAY. You agree not to utilize, handle, or transfer our data, unless necessary to perform your obligations herein. You may not aggregate or combine our data with data from other sources to attempt re-identification, behavioral advertising, or any other similar objectives.
Security Covenants: You must keep our data secure from unauthorized access and maintain the accuracy and integrity of our data you have access to by using appropriate organizational, physical and technical safeguards, always. This includes implementation of a security program in accordance with our standards. You may never permit third parties to have unnecessary access to our data. If you become aware of any unauthorized access to our data, you must immediately notify us, consult and cooperate with investigations and potential notices, and provide any information requested by us.
INSPECTION RIGHTS
In the event, you are a SIMPOPAY Merchant, we reserve the right at any time and for any reason to visit and/or inspect the premises and/or the hardware that you have in your possession.
RATINGS & FEEDBACK
FEEDBACK: Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to SIMPOPAY, and acknowledges that SIMPOPAY is free to use, disclose, reproduce, and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in SIMPOPAY’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by SIMPOPAY.
RATINGS AND REVIEWS: You acknowledge and agree that customers may provide rating or reviews as to their impression of your product offerings or service, and such ratings or reviews may be shown on the Platform to the public at our sole discretion. You acknowledge that we do not screen any ratings or reviews and that we reserve the right to remove or revise such ratings or reviews at any time from the Platform.
TERMINATION
You may terminate these Terms for any reason at any time upon 30 days prior written notice. We may terminate your rights to use the Platform or any of these Terms or any promotion hereunder for any reason at any time upon written notice. Email shall suffice for written notice. We will never be responsible for any fee or losses you incur arising out of or relating to termination.
INDEMNITY
You will, at your own expense, indemnify, defend and hold us harmless from and against all claims brought against us by a third party arising from or in connection with your, or your employees, contractors or agent, gross negligence, willful misconduct any breach of these Terms; any violation or claimed violation of a third party’s rights or in connection with any violation or alleged violation of any rule, regulation, law, or health and safety code, applicable to your products or services under this agreement as well as any claims for illness or bodily injury resulting from your products or services or our hardware installed at your location. You must provide us with immediate notice of such claim, with all necessary information as it pertains to such claim.
Note: All SIMPOPAY hardware whether owned, rented or leased by the Merchant or being utilized on Merchant’s premises under any other understanding, any damages or claims allegedly caused by or arising from such hardware shall be the sole responsibility of you the Merchant. Any other limitations of liability, indemnities, or other protections, granted to SIMPOPAY herein or as provided by law, shall be applicable to hold SIMPOPAY completely harmless and without any obligation of any kind resulting from said purchases or in any other instance, where Merchant shall use SIMPOPAY hardware on site.
LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND APPLICABLE TO ALL THEORIES OF LAW AND EQUITY, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS MAY NOT EXCEED $5,000. WE WILL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND INCLUDING LOST PROFITS, GOODWILL, OR THE COST OF PURCHASING REPLACEMENTS, IRRESPECTIVE OF WHETHER SUCH DAMAGE OR POTENTIAL FOR THE AFOREMENTIONED WAS DISCLOSED, FORESEEABLE OR KNOWN TO YOU FURTHER, WE WILL NOT BE LIABLE FOR YOUR LOSS OF PERMITS OR LICENSES YOU REQUIRE TO OPERATE YOUR ORGANIZATION.
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SAFETY AND VIABILITY OF ANY OFFERED HARDWARE IS ON AN “AS IS” BASIS. NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE HARDWARE HEREIN. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES AND CONDITIONS THAT WOULD OTHERWISE BE IMPLIED BY STATUTE, CUSTOM OR COMMON LAW ARE EXPRESSLY EXCLUDED FROM THESE TERMS, AND FAIL TO APPLY WITH RESPECT TO THE HARDWARE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL WE EVER BE LIABLE FOR ANY INDIRECT OR DIRECT, PUNITIVE OR SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSSES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE PRESENCE, INSTALLATION, EXISTENCE, OR USE OF OR INABILITY TO USE OUR HARDWARE. NOR SHALL WE BE RESPONSIBLE FOR ANY INJURIES OR DAMAGES WHATSOEVER THAT RESULT FROM THE PHYSICAL ASPECTS OF THE HARDWARE, AND/OR ERRORS, INTERRUPTIONS, OMISSIONS, TECHNICAL OR PHYSICAL DEFECTS OR DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE WHETHER OR NOT CAUSED BY EVENTS BEYOND OUR REASONABLE CONTROL, INCLUDING ACTS OF G-D, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS PLATFORM. NEVER WILL WE BE LIABLE FOR ANY DAMAGES SOME JURISDICTIONS DO NOT ALLOW FOR SUCH LIMITATIONS FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; HENCE, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
DISCLAIMER: UNLESS EXPRESSED TO CONTRARY HEREIN, WE MAKE NO REPRESENTATIONS, AND WE DISCLAIM ALL WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM AND EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY SERVICES PROVIDED THROUGH THE PLATFORM THAT ARE PROVIDED BY THIRD PARTIES WHO ARE NOT EMPLOYEES OR AGENTS OF SIMPOPAY, YOU USE SUCH SOLELY AT YOUR OWN RISK, AND SIMPOPAY DOES NOT PROMOTE, APPROVE, OR CERTIFY SUCH THIRD PARTIES. IN THE EVENT YOU ENCOUNTER ANY CONCERN OR CLAIM WITH SUCH PARTY, THE ONLY PARTY WITH WHOM TO RESOLVE SUCH WOULD BE THE THIRD-PARTY PROVIDER OFFERING THE PRODUCT OR SERVICE THAT CAUSED YOUR CONCERN OR CLAIM.
FORCE MAJEURE
Neither party shall be in default of its duties herein to the extent its performance is (a) delayed or prevented by any act of God, national disaster, strike, embargo, riots, sabotage, utility disruption or outage, equipment failure, or widespread communications network or internet failure for more than 48 hours, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable acts, or reasonably through the use of substitute services, alternate sources, or other ways by which the duties of a buyer very similar to the Services hereunder would be satisfied. Events meeting both of these criteria are referred to as “Force Majeure Events.” Upon such Event, the non-performing party shall
be excused from any further performance of the impacting duty for as long as such circumstances exist, and provided that such party continues to attempt to relaunch performance to the greatest extent possible as soon as possible and without delay.
GENERAL
Jurisdiction: All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of Ontario without giving effect to any choice, conflict of law provision or rule (whether of Ontario or any other jurisdiction) that would cause application of laws of any jurisdiction other than those of the province of Ontario.
Reporting Concerns: You must immediately report any suspected or known violations by your employees, agents, or ours, by e-mailing get@simpoapay.ca.
Communications: Merchant agrees to receive calls, SMS messages and other communications Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns.
Assignment: You will not assign any of your rights or delegate any obligations herein without our prior written consent. Any violating purported assignment or delegation of this Section is null and void. No assignment or delegation relieves you of your duties herein.
No Waivers: Failure by us to enforce any right or provision herein will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of SIMPOPAY.
No Third-Party Beneficiaries: These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
Notices: All Notices can be sent by electronic mail.
Severability: If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Entire Agreement: These Terms, our website, company, Terms, and our Privacy Policy will be deemed the final and integrated Terms between you and us on the matters contained herein.