In these Terms, "You" or "Your" refers to you as the person that downloaded, installed and is using the App. "We", "Our" or "Us" refers to CheckPay Technologies Ltd. ("CP"), the owner of the App. You and CP are each, a “Party” and, together, the “Parties” in these Terms.
1.1. Eligibility, Jurisdiction: To download, install or access the App, You must be at least 18 years of age. If you are not over the age of 18 years, do not download, install or use the App. You may only use this App within the Province of British Columbia.
1.2. Amendments: We reserve the right to change these Terms at any time without notice to you by posting changes on our website located at www.checkpay.ca or by updating the App to include the new Terms. Your continued use of the App, after the changes have been posted, constitute your acceptance of the amendments.
2.1. The App. We make the App available to you to make payments to merchants using the App ("CheckPay Merchants"). When you transfer funds into the App (the "Funds"), You will receive credit for the funds (the "CheckPay Credit") and open an account within the App (the "Account"). A minimum purchase of $10.00 worth of CheckPay Credit is required. Once you transfer the Funds, You agree that the Funds are owned by CheckPay and, as such, are non-refundable (except in specified circumstances). When you make a purchase with a merchant using the App, You will initiate the use of Your CheckPay Credit by responding to the QR code generated by the merchant. Scanning the QR code with Your mobile device will initiate the transfer of the applicable amount of CheckPay Credit.
2.2. Transferring Funds. You may transfer funds into the Account via one of the following credit cards: VISA, MasterCard, American Express, Discovery and Diners Club or through a VISA or MasterCard co-branded debit card. We will not activate your Account until Your Funds have cleared our payment processing system. Once the Funds have been received by CP, We will notify you through the App. Note that your CheckPay Credit will not be immediately available. You will be responsible for any failures to process Your debit card or credit card. CP will invoice you for these charges.
2.3. Using Funds; Refunds, Stolen Devices. CP may, at its discretion, limit the use of CheckPay Credit to specific amounts or the number of transactions that can be completed using the CheckPay Credit. Refunds are processed through CheckPay, when initiated by the merchant. Refunded CheckPay Credit will then be transferred into Your Account within a reasonable time. If Your mobile device is stolen or there is an unauthorized use of Your CheckPay Credit, please contact us as soon as possible. Note that, while We will be pleased to assist you, we cannot guarantee that We will be able to retrieve any CheckPay Credit that is used without Your authorization.
2.4. CP is an Independent Contractor. CP helps you make payments to CheckPay Merchants. CP is an independent contractor and does not have control of or liability over any products or services that are paid for using CheckPay Credit. CP does not guarantee that You will be able to complete a transaction using the App.
2.5. Account Details. You may view your CheckPay Credit and history of payments at any time under Account History in the App.
2.7. Your Identity. You authorize Us, directly or through third parties, to make any inquiries that we deem necessary or advisable, to verify Your identity and to record collect and disclose information to federal and provincial agencies if We deem it prudent and necessary. This may include asking for further information to verify Your identity, in addition to the information provided when you sign up for the App. CP reserves the right to close, suspend or limit access to your Account in the event that We are unable to obtain and verify this information to Our satisfaction.
2.8. Taxes. You are responsible for paying all taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes") on Your purchases.
3.1. Our Responsibilities. We shall use commercially reasonable efforts to make the App available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours’ notice wherever possible via the App and which We shall schedule to the extent practicable during the weekend hours from 9 p.m. Pacific time on Saturday to 3 a.m. Pacific time Sunday, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or other third party failures or delays (including but not limited to Internet or data service providers); and (c) provide the App only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You will prevent (a) unauthorized access to or use of the App, and notify Us promptly of any such unauthorized access or use; and (b) use the App only in accordance with these Terms, and all applicable laws and government regulations. You will not:
(a) share your passwords with anyone;
(b) use the App to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(c) use the App to store or transmit malicious code, viruses, or any similar item;
(d) use the App in any way that is fraudulent, criminal or unlawful;
(e) interfere with or disrupt the integrity or performance of the App;
(f) attempt to gain unauthorized access to the App or its related systems or networks;
(g) provide false, inaccurate or misleading information;
(h) send or receive what We reasonably believe to be potentially fraudulent funds;
(i) allow your use of the App to present to CP a risk of non-compliance with CP's anti-money laundering, counter terrorist financing or similar regulatory obligations (including, without limitation, where we cannot verify Your identity; or
(j) violate these Terms.
Further, you may not use the App for activities that:
(a) violate any law, statute, ordinance or regulation;
(b) relate to transactions involving:
a. narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety;
b. items that encourage, promote, facilitate or instruct others to engage in illegal activity;
c. stolen goods including digital and virtual goods;
d. the promotion of hate, violence, racial intolerance or the financial exploitation of a crime;
e.items that are considered obscene;
f. items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;
g. certain sexually oriented materials or services;
h. ammunition, firearms, or certain firearm parts or accessories; or
i. certain weapons or knives regulated under applicable law;
(c) relate to transactions that:
a. show the personal information of third parties in violation of applicable law;
b. support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or certain multi-level marketing programs;
c. are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card;
d. are for the sale of certain items before the seller has control or possession of the item;
e. are by payment processors to collect payments on behalf of merchants;
f. are associated with the sale of traveler’s checks or money orders;
g. involve currency exchanges or check cashing businesses;
h. involve certain credit repair, debt settlement services, credit transactions or insurance activities; or
i. involve offering or receiving payments for the purpose of bribery or corruption; or
(d) involve the sales of products or services identified by government agencies to have a high likelihood of being
(collectively, the foregoing are the "Restricted Activities").
You are responsible for all use of the App by You or by anyone using Your login credentials to access the App. You will prevent unauthorized use of the App and will notify Us immediately of any such unauthorized use. We disclaim any liability for damage to your computer system that may result from the use of the App. You will, at all times, comply with all applicable laws when using the App. Use of the App does not include the provision of a mobile device to access the App or any other equipment. We do not have any responsibility for any mobile or other costs that You may incur in using the App.
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all right, title and interest in and to the App, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. The App is protected by intellectual property laws and is owned by Us.
4.2. Restrictions. You shall not (a) permit any third party to access the App; (b) create derivative works based on the App; (c) copy, frame or mirror any part or content of the App; (d) reverse engineer the App or any part thereof; or (e) access the App in order to (i) build a competitive product or service to the App; or (ii) copy any features, functions or graphics of the App.
4.3. Ownership of Your Information. As between Us and You, You own all rights, title and interest in and to all Confidential Information (defined below) you provide to Us.
4.4. Suggestions. Notwithstanding the foregoing, you agree that We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the App any suggestions, enhancement requests, recommendations or other feedback provided by You or on your behalf relating to the operation of the App.
Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information
disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that
is designated as confidential or that reasonably should be understood to be confidential given the nature of the
information and the circumstances of disclosure. Our Confidential Information shall include the App and any information
related to the App. Your Confidential Information will include your Personal Information (as defined in Our
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(c) is received from a third Party without breach of any obligation owed to the Disclosing Party; or
(d) was independently developed by the Receiving Party.
5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party:
(a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms; and
(b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who have signed confidentiality Terms with the Receiving Party containing protections no less stringent than those herein.
6.1. Our Warranties. We warrant that the functionality of the App will not be materially decreased during the Term. For any breach of such warranty, Your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause) below.
6.2. Mutual Warranties. Each Party represents and warrants that: (a) it has the legal power to enter into these Terms; and (b) it will not transmit to the other Party any malicious code.
6.3. Your Warranties. You represent and warrant that You assume sole responsibility for: (a) determining that the App meet Your requirements; and (b) the results obtained from the App.
6.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CP DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. We do not guarantee continuous, uninterrupted or secure access to any part of the App and operation of the App may be disrupted by numerous factors outside of our control. We will make reasonable efforts to ensure that transfers of Funds are processed in a timely manner but We makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of Our control, including for example, delays in the payment processing system.
7.1. Liability. You are responsible for all claims, fees, fines, penalties and other liabilities incurred by CP or a third party arising out of Your breach of these Terms and your use of the App. You agree to reimburse CP and any third party for any such liability.
7.2. Indemnification. You will indemnify, defend, and hold Us, our officers, employees, consultants and agents harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages arising out of or in connection with Your use of the App, Your breach or alleged breach of these Terms or any applicable laws, or arising out of any negligence or wilful misconduct by You in using the App.
8.1. Limitation of Liability. IN NO EVENT SHALL OUR (INCLUDING OUR DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR USE OF THE APP, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT YOUR CHECKPAY CREDIT AT THE TIME OF THE INCIDENT RESULTING IN THE LIABILITY.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL CP HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT CP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CP AND OUR DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (A) YOUR USE OF OR YOUR INABILITY TO USE THE APP; (B) DELAYS OR DISRUPTIONS IN THE APP; (C) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE APP OR ANY SITE OR SERVICE LINKED TO THE APP; (D) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE APP OR IN THE INFORMATION OBTAINED FROM THE APP; (E) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (F) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (G) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS AGREEMENT OR CP’S POLICIES. CP RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
9.1. Term. The term of these Terms will commence on the Effective Date and continue until these Terms are terminated as provided for herein.
9.2. Termination by Us. If We, in Our sole discretion, believe that you may have engaged in any Restricted Activities,
we may take various actions to protect CP, other Users, other third parties from claims, fees, fines, penalties and
any other liability. The actions We may take include but are not limited to the following:
(a) We may suspend or limit your access to your Account;
(b) We may cause your CheckPay Credit to be forfeited to Us;
(c) We may refuse to allow you to use the App in the future; and
(d) We may take legal action against you; and
Further, CP, in its sole discretion, reserves the right to terminate this Agreement, access to its App, or access to the Services for any reason and at any time upon notice to You and payment to you of unused CheckPay Credit held in Your Account.
9.3. Termination by You. If You wish to terminate Your Account with CheckPay and obtain a refund for your CheckPay Credit, please contact us and we will consider refunds on a case by case basis. An administrative fee may apply to the cancellation of Your Account and refund of Your CheckPay Credit.
9.4. Conclusion of Term. Following any termination of these Terms: We will destroy all of Your electronic data in our possession or under our control, except for information that is required to be obtained for legal or regulatory purposes.
9.5. Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.4 (Disclaimer), 8 (Limitation of Liability), 9 (Term and Termination) and 10 (General Provisions) shall survive any termination or expiration of these Terms.
10.1. Manner of Giving Notice. You agree that We may provide information to you about your account by posting the information to the App or our website, by emailing You at the address that You provided when You signed up to use the App. Such information will be deemed to be received by You within 24 hours of the time that the information is communicated to You. You may contact us at the following address and email address: [email@example.com] If you contact us by mail, such notice will deemed to be received with 3 business days of mailing. If you contact us by email, such notice will deemed to be received with 24 hours of the email date.
10.2. Governing Law and Jurisdiction. Each Party irrevocably agrees that these Terms and all related matters shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to any rules relating to conflict of laws. Each Party agrees to submit to the exclusive jurisdiction of the Courts of British Columbia (Vancouver Registry) with respect to any dispute between them arising from or pertaining to these Terms or the subject matter hereof.
10.3. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.
10.4. Relationship of the Parties. The Parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.
10.6. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
10.7. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
10.8. Assignment. You may not assign your rights or obligations under this Agreement unless You have Our prior written consent. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing, these Terms shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.