Oct 1, 2019
These terms and conditions (“Terms”) apply to your use of SimpoPay’s mobile service platform. All services provided by SimpoPay, including the services, information, features, and functionality offered through our website at www.simpopay.ca (the “Website”) and our mobile device application (“the Application”) is referred to herein as the “Service”.
PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR USE OF THE SERVICE. THESE TERMS AFFECT YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. BY ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, IN WHOLE OR IN PART, THEN YOU ARE NOT PERMITTED TO USE OUR SERVICE.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time without incurring any liability or obligation. See below under the heading “Modification of The Service and Terms” for more information.
These Terms are between you and SimpoPay Inc. (“SimpoPay”) which is a Canadian company with offices located at 445 Apple Creek Blvd, Suite 213, Markham, Ontario, Canada, L3R 9X7. When used in these Terms, the terms “us”, “we” and “our” refer to SimpoPay.
We provide a way for you to Redeem (“Redemption”) products or services (“Products”) from third-party Merchant (“Merchant”). SimpoPay is a limited agent for its merchant partners with the authority to offer a merchant’s Products for sale at the price shown through the Service. SimpoPay has the authority to accept or decline your redemption on behalf of the merchant and collect your Redemption on behalf of the Merchant. SimpoPay also has the authority to provide certain discounts and promotional offers in connection with Products offered through the Service. SimpoPay l does not provide the Products itself or operate any of the Merchant and is not itself a Merchant. SimpoPay is not responsible for the quality, character or safety of any Products available through the Service that is the sole responsibility of the Merchant. The provision of the Product and fulfillment of any Redemption by the Merchant to you constitutes an agreement entered into between you and the Merchant. SimpoPay shall never be a party to such an agreement.
SIGNING UP FOR SERVICE
You have to be at least the age of majority or older in your jurisdiction of residence in order to use the Service. If you reside in a jurisdiction that restricts the use of the Service because of your age or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Service.
By using the Service, you are entering into a contract with SimpoPay under these Terms. In order to be able to use the Service, you first need to sign-up with SimpoPay. When signing up, you are obligated to provide SimpoPay with certain personal information, including your mobile telephone number. Upon successfully signing up with SimpoPay, SimpoPay will provide you with a personal account, accessible to you with a password of your choice.
You warrant that the information you provide to SimpoPay is accurate and complete and that you will keep the information you have provided to SimpoPay current through the Service. SimpoPay is entitled at all times to verify the information that you have provided and to refuse use of the Service without providing reasons.
MAKING A REDEMPTION
The Service allows you to send Redemption to Merchants. The GPS receiver – which should be installed on the mobile device on which you have downloaded the Application – detects your location and uses your location to optimize sending a Redemption to a Merchant. SimpoPay has the sole and complete discretion to accept or reject each Redemption on behalf of the Merchant.
If you have any issues with your Redemption (including any issue regarding the accuracy of information provided through the Service), or wish to change or cancel your Redemption after it has been accepted, you will need to address it directly with the Merchant. All complaints regarding the quality of any Products should be addressed directly to the Merchant. SimpoPay has no obligation to compensate you for any dispute you may have with any Merchant.
You may only access the Service using the means and methods permitted by SimpoPay. It is your responsibility to ensure you download the correct Application for your device. SimpoPay is not liable if you do not have a compatible mobile device or if you download the wrong version of the Application for your mobile device. SimpoPay reserves the right to terminate your use of the Service should you be using the Service with an incompatible or unauthorized device.
By using the Service, you further agree that:
- You will only use the Service or download the Application for your sole, personal use and will not resell it to a third party;
- You will not authorize others to use your account;
- You will not assign or otherwise transfer your account to any other person or legal entity;
- You will not use the Service for unlawful purposes, including but not limited to sending or storing any unlawful material or for fraudulent purposes;
- You will not use the Service to cause nuisance, annoyance or inconvenience;
- You will not impair the proper operation of any network accessed through the Service;
- You will not try to harm the Service in any way whatsoever;
- You will not copy or distribute the Website or Application without written permission from SimpoPay;
- You will keep secure and confidential your account password or any identification we provide you which allows access to the Service;
- You will provide us with whatever proof of identity we may reasonably request;
- You will only use the Service through an internet connection you are authorized to use;
- You are aware that when the Service may require receiving or sending messages by SMS (if available in your jurisdiction), standard messaging charges (if any) will apply;
- You will not use the Service with an incompatible or unauthorized device; and
- You will comply with all applicable laws including the laws of the area in which you are present while using the Service.
SimpoPay reserves the right to immediately terminate your use of the Service should you not comply with any of the above rules. SimpoPay will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. SimpoPay may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that SimpoPay has no obligation to monitor your access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental bodies.
PROMOTIONS AND REWARDS
SimpoPay may, in SimpoPay ‘s sole discretion, provide offers, programs and promotions (“Promos”) that allow you to obtain account points balance, reward points, or other features or benefits related to the Services and/or a third-party provider’s services (collectively, “Promo Benefits”). Promos may be subject to additional terms and conditions that SimpoPay establishes from time to time. You agree that:
- Promos must be used for the intended audience and purpose, and in a lawful manner;
- Promos may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by SimpoPay;
- Promos may be changed, terminated or disabled by SimpoPay at any time for any reason without prior notice or liability to SimpoPay;
- One Promo cannot be combined with any other Promo unless expressly permitted by SimpoPay in the terms of the Promo;
- Promo Benefits may only be used pursuant to the specific terms that SimpoPay establishes for the applicable Promo; and
- Promo Benefits are not redeemable for cash and may be subject to expiration or termination conditions.
Certain Promos may only be available to new users. New users are natural persons who have not yet created a SimpoPay account. New users may also be required to complete a redemption before being eligible for any Promo offer and the Promo Benefits. Additional terms and conditions specific to new user Promos may be specified by SimpoPay from time to time.
SimpoPay reserves the right to deduct or cancel Promo Benefits in the event that SimpoPay determines or believes that the use or redemption of the Promo was in error, fraudulent, illegal, or in violation of the applicable Promo terms or these Terms.
Account points balance provided by SimpoPay, whether as a Promo Benefit, through the redemption of rewards points or otherwise provided by SimpoPay through any means, have no cash value and will only apply in the local currency and are not transferable. If a purchase on SimpoPay exceeds the account point value in your account, the remaining balance will be charged with other methods. Account points balance may be canceled and removed from your account. Unless otherwise specified in the particular Promo, account points balance are subject to cancellation by SimpoPay at any time and may be removed from your account at SimpoPay’s discretion.
Unless otherwise prohibited by applicable law, SimpoPay reserves the right to cancel and/or expire any rewards points in your account after one year of account inactivity.
By accepting these Terms and using the Service, you agree that you shall indemnify and hold harmless SimpoPay, its affiliates, licensors, and each of their officers, directors, other users, employees, attorneys and agents (collectively, “SimpoPay Inc.”) from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) your violation or breach of these Terms or any applicable law or regulation, whether or not referenced herein; (ii) your violation of any rights of any third party, including, without limitation, Restaurants arranged via the Service; or (iii) your use or misuse of the Service.
THE LEGISLATION OF CERTAIN JURISDICTIONS DOES NOT ALLOW FOR CERTAIN EXCLUSIONS OF LIABILITY, SO THAT SOME OF THE PROVISIONS BELOW MAY NOT APPLY TO YOU. FOR THE AVOIDANCE OF DOUBT NOTHING IN THESE TERMS SHALL AFFECT YOUR STATUTORY RIGHTS. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY TO YOU TO THE EXTENT THAT, BY APPLICABLE LAW, SUCH LIABILITY MAY NOT BE SO LIMITED OR EXCLUDED.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), ALL OF WHICH ARE HEREBY DISCLAIMED BY US TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SIMPOPAY DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT: (I) THE APPLICATION OR SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR PERSONAL EXPECTATIONS OR BE OF A CERTAIN QUALITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NO MEMBER OF THE SIMPOPAY INC. SHALL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REVENUE, ECONOMIC ADVANTAGE, GOODWILL, DATA, OPPORTUNITY OR SALES, DAMAGES FOR PERSONAL INJURY, OR FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER INTANGIBLE LOSSES (WHETHER OR NOT THE SIMPOPAY INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE, INCLUDING DAMAGES CAUSED BY MALWARE, VIRUSES OR ANY INCORRECTNESS OR INCOMPLETENESS OF ANY CONTENT YOU MAY ACCESS; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO, LOSS, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA SUBMITTED TO OR RECEIVED FROM THE SERVICE; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE, RELEASE AND DISCHARGE THE SIMPOPAY INC. FROM ALL LEGAL CLAIMS, DEMANDS, DAMAGES, ACTIONS OR CAUSES OF ACTION IN RESPECT OF THE FOREGOING. SIMPOPAY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS UNDER THESE TERMS THAT IS CAUSED BY EVENTS OUTSIDE OUR REASONABLE CONTROL.
WITHOUT PREJUDICE TO THE FOREGOING, AND INSOFAR AS ALLOWED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE SIMPOPAY INC. TO YOU IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE SHALL IN NO EVENT EXCEED CAD$100.00.
For the purpose of these Terms, the following definitions apply:
“Content” means all content featured or displayed, including, but not limited to, logos, icons, trademarks, text, graphics text, graphics, photographs, images, moving images, sound, illustrations, music, software (excluding the Application), opinions, remarks, comments, artwork, links, questions, suggestions, information or other materials.
” SimpoPay Content” means Content owned or used by SimpoPay, its affiliates or third-party licensors (including Merchants) and made available through the Service, but excluding User Content.
“User” means a person who accesses or uses the Service.
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service.
“Collective Content” means, collectively, SimpoPay Content and User Content.
Subject to your compliance with these Terms, SimpoPay grants you a limited, revocable, non-exclusive, non-transferable license:
- to view, download and print any SimpoPay Content solely for your personal and non-commercial purposes; and
- to view any User Content to which you are permitted access solely for your personal and non-commercial purposes.
Unless otherwise stated, the copyright and other intellectual property rights in the SimpoPay Content are owned by us, the Merchants or our other licensors. These works are protected by copyright laws, trademark laws, and other intellectual property laws and treaties, both in Canada and around the world and all rights therein are reserved. For the purposes of these Terms, any use of extracts from the SimpoPay Content other than in accordance with these Terms is prohibited.
You have no right to sublicense the license rights granted in this section.
You may not use, copy, adapt, modify, create derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, reproduce, transmit, stream, broadcast or otherwise exploit the Collective Content, except as expressly permitted in these Terms. You may not reuse any Collective Content without first obtaining the written consent of SimpoPay. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SimpoPay or its licensors, except for the licenses and rights expressly granted in these Terms. Any rights not expressly granted in these Terms are reserved.
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content on through the Service. User Content will be deemed non-confidential and non-proprietary. By providing User Content to SimpoPay, you grant SimpoPay a non-exclusive, perpetual, transferable, worldwide, royalty-free, right to use, copy, distribute, display, modify, make derivative works from, and disclose to third parties any User Content for any purpose, in any medium and throughout the world. You hereby waive any moral rights in your User Content in favor of SimpoPay.
You acknowledge that SimpoPay only acts as a passive conduit for the distribution of the User Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Content. SimpoPay does not continuously monitor User Content published by you or moderating between Users, nor shall SimpoPay be under an obligation to do so. Without limiting the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Content do not necessarily represent those of SimpoPay.
Any use by you of the User Content is entirely at your own risk. You represent and warrant that any User Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe any third party intellectual property rights, rights of privacy or personality rights and does not contain any defamatory, vulgar, illegal, or disparaging statements. Furthermore, you represent and warrant that you have the capacity to grant the license as stipulated in this paragraph.
You agree to indemnify and hold harmless the SimpoPay Group against all costs, expenses, damages, losses and liabilities incurred or suffered by any member of the SimpoPay Group related to any User Content posted or transmitted by you through the Service.
SimpoPay reserves the right at its sole discretion to block or remove (in whole or in part) any User Content posted or transmitted by you and which SimpoPay believes is not in accordance with these Terms (including without limitation materials which infringe or may infringe third party intellectual property rights, rights of privacy or personality rights), or is otherwise unacceptable to SimpoPay. You agree to provide to SimpoPay sufficient information to enable SimpoPay to investigate whether such User Content breaches these Terms. SimpoPay shall take such action as SimpoPay in its sole discretion decides. However, SimpoPay does not warrant or represent that it will block or remove (in whole or in part) or monitor such User Content.
Subject to your compliance with these Terms, SimpoPay grants you a limited, non-exclusive, revocable, non-transferable license to download and install a copy of the Application on a single mobile device that you own or control and to run such copy of the Application solely for your own personal use. You shall not:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application in any way;
- modify or make derivative works based upon the Application;
- create Internet “links” to the Service or “frame” or “mirror” any Application on any other server or wireless or Internet-based device; or
- reverse engineer or access the Application in order to: (i) design or build a competitive product or service; (ii) design or build a product using similar ideas, features, functions or graphics of the Application; (iii) copy any ideas, features, functions or graphics of the Application; (iv) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application; (v) misuse the Application, including by hacking or “scraping”; (vi) send spam or otherwise duplicative or unsolicited messages of any kind in violation of applicable laws; (vii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or anything which would violate third party privacy rights; (viii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of the Application; or (x) attempt to gain unauthorized access to the Application or its related systems or networks.
INTELLECTUAL PROPERTY OWNERSHIP
SimpoPay alone (and its third-party licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website, Application, and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website, Application or the Service.
These Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Website, the Application or the Service, or any intellectual property rights owned by SimpoPay. SimpoPay ‘s name, logo, and the product names associated with the Service are trademarks of SimpoPay, its affiliated companies or third parties, and no right or license is granted to use them.
You are entitled to terminate your use of the Service at any time by permanent deletion of the Application installed on your smart phone, thus disabling the use by you of the Application and the Service. You can close your user account at any time by following the instructions on SimpoPay’s website. SimpoPay is entitled to terminate your use of the Service at any time without notice and with immediate effect (by disabling your use of the Application and the Service) for any reason, including, if you: violate or breach any term of these Terms, or in the opinion of SimpoPay, misuse the Application or the Service.
The Terms (including any referenced documents) constitute the entire agreement between you and SimpoPay and governs your use of the Service, superseding any prior version of these Terms between you and SimpoPay.
WAIVER AND SEVERABILITY OF TERMS
The failure of SimpoPay to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
MODIFICATION OF THE SERVICE AND TERMS
SimpoPay reserves the right, at its sole discretion to change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time. SimpoPay may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. SimpoPay reserves the right, at its sole discretion, to modify or replace any of these Terms. If we change these Terms, we will provide notice to you by posting the revised Terms on our Website and by indicating at the top of this page the date these Terms were last updated. Such changes will be effective when the revised Terms are posted to our Website. You should check the Terms frequently for any revisions, and especially before your use of the Service. By continuing to access or use the Service after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, in whole or in part, please stop using the Service.
SimpoPay may give notice by means of a general notice sent through the Application, or by electronic mail to your email address on record in SimpoPay’s account information, or by written communication sent by regular mail to your address on record in SimpoPay’s account information.
You may not assign your rights under these Terms without the prior written approval of SimpoPay.
APPLICABLE LAW AND DISPUTE RESOLUTION
To the fullest extent permitted by applicable law, you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada, with respect to any dispute, controversy or claim (a “Dispute”) arising out of or in connection with these Terms or your use of the Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded. If you are a resident of the Province of Quebec, Canada, the laws in that province will apply and the courts in that province will have jurisdiction over any Dispute.
WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND SIMPOPAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and SimpoPay agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which the following provision is enforceable, the following mandatory arbitration provision applies to you. You agree that any Dispute shall be submitted to and determined by binding arbitration in accordance with the applicable rules of the American Arbitration Association. The number of arbitrators shall be one and the parties shall mutually agree and appoint an arbitrator within 10 days of the delivery of the notice of arbitration, failing which the arbitrator shall be appointed by International Center for Dispute Resolution Canada. The place of arbitration shall be Toronto, Ontario, Canada. The language of arbitration shall be English. By agreeing to this provision, the parties agree that arbitration shall be the exclusive forum for resolving all Disputes and the decision of the arbitrator shall be final and binding upon both parties hereto. The decision of the arbitrator shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.