Afterpay Canada Limited Instalment Agreement

 

AGREEMENT TERMS

This Afterpay Canada Limited Instalment Agreement is between the borrower listed above, referred to as “you” and “your” throughout this Agreement and Afterpay Canada Limited, “Afterpay,” “we,” “us,” and “our”, the originator listed above or its assignees. 

 

Initial Disclosure Statement

This Initial Disclosure Statement (“Statement”) is part of your Afterpay Instalment Agreement (“Agreement”) with Afterpay. Along with the Payment Schedule above, it sets out the key terms of your Instalment Agreement based on the amount you were approved for by Afterpay which allows you to pay for your purchase order over 4 equal instalments due every 2 weeks. All amounts referenced in this Statement are in Canadian currency and capitalized terms used but not defined in this Statement have the meanings given to them in the Agreement. Please read the Agreement in full for all terms that apply.  

You agree to accept a copy of this Statement in electronic form and agree that any electronic disclosures have the same meaning and effect as if provided to you in writing, in paper form. You also agree to carefully review this Statement and the below Instalment Loan Details and Payment Schedule before entering into the Agreement and to retain a copy of this Statement and the Agreement for your records and future reference.

 

Key Instalment Agreement Details  

 

 

a.

Term (in weeks):

* 6 or 8

b.

Total number of payments (including any down payment due every 2 weeks):

4

c.

For our marketing purposes - to offer our products and services to you

*dependent on order amount

d.

Outstanding Balance at the end of the Term

0
e. Annual interest rate :

0%

f.

Annual Percentage Rate (APR):

0%

g.

Processing/administration fees

None

h.

Total cost of borrowing:

0

i.

Default Charges:

None

j.

Security for Instalment Agreement:

N/A

k.

Optional insurance or other services:

N/A



PREPAYMENTS

You may prepay all or a part of your payment instalments at any time without any prepayment charge or penalty. If you make a partial prepayment, you must still continue to make your payments on the scheduled payment dates, as set out in the Agreement, until all amounts due under the Agreement are paid in full. Any partial prepayments will be credited against the outstanding balance of the amount owing under the Agreement when the partial prepayment was made and shall be applied against the then outstanding balance. 
 

CONTACT
 
If you have any questions about this Statement or the Agreement, you can call us toll-free at 1-833-386-0210, Monday - Saturday, 7:00 a.m. - 7:00 p.m. (CST).
 

PROMISE TO PAY:  The Agreement governs your repayment to us in connection with funds we disbursed at your direction and on your behalf to an approved retailer to acquire certain merchandise or services that you have selected.  You promise to pay the sum of your down payment and other payment amounts under this Agreement (inclusive of all taxes and fees), according to the Payment Schedule plus all other charges accruing under this Agreement until paid in full. THERE ARE NO FINANCE CHARGES AND NO INTEREST PAYMENTS ASSOCIATED WITH THIS AGREEMENT. 
 
 
Please note that Section 9 of this Agreement includes provisions that govern how claims we may have against each other are resolved. These provisions limit our liability and may require arbitration for a dispute that you assert against us. The Agreement includes important terms regarding your rights related to fees, dispute resolution and governing law.
 
 
This Agreement incorporates by reference the Initial Disclosure Statement provided above and the Payment Schedule above.
 

Use of Proceeds and Disbursement Authorization
 
By electronically accepting this Agreement, you agree to pay the down payment amount to us, and we agree to immediately thereafter disburse the proceeds under this Agreement to the merchant that you select at checkout.  You promise to re-pay us the amount of your purchase as indicated by the merchant at checkout.  Your Payment Schedule is provided to you electronically (the “Payment Schedule”) as part of this Agreement.  You also agree to pay any applicable fees you incur under this Agreement. 
 

1.              Instalment Payments
 
When you accept this Agreement and place an order, you will identify your preferred method of payment, designating an eligible Canadian-issued credit or debit card as your “Payment Method.”  In addition to any required down payment, you must make either three (3) or four (4) payments to us (each, an “Instalment Payment in the amounts shown in your Payment Schedule.  You are responsible for ensuring that you have sufficient funds available to make Instalment Payments on the dates specified in your Payment Schedule.In addition to the terms related to Prepayments set forth in the Initial Disclosure Statement, please note that if you make all Instalment Payments in full on their due dates, your final payment will be made on the Maturity Date identified in the  Payment Schedule.   You may prepay all amounts due under this Agreement in whole or in part at any time without a penalty and you may make any payment early, in whole or in part, without penalty or premium at any time.If you would like to change your Payment Method or make alternate payment arrangements, you are able to do so online or if the specific feature is not available, or if you have further issues or questions, you may contact us at [email protected]  The Payment Method you select and any necessary authorization will not affect your obligation to pay when due all amounts payable under this Agreement.  The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have under applicable law.
 

2.              Fees
 
There are no finance charges, late fees, NSF fees or interest associated with this Agreement.
 

3.              Delinquency and Default 
 
If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent.  If you are delinquent, have filed or have instituted against you bankruptcy or insolvency proceedings or are in breach any other material term of this Agreement, we may, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder. If you fail to make a payment required under this Agreement, we reserve the right to limit, restrict, suspend or terminate your access to your Afterpay account.
 

4.              Approval and Cancellation
 
All applications for credit are subject to our approval.  We may, in our sole discretion, not approve your application, or cancel an approved application before the goods or services are delivered or supplied.  If we cancel your previously approved application:

(a)            We will apply a full refund of any amounts you have paid (excluding any chargebacks or fees incurred in relation to your payment), and we will cancel any future payments related to that order;

(b)            The merchant providing the merchandise will not be obliged to deliver the goods (or provide any related services); and
 
(c)            You will have no obligation to make any further payments to us, or continue any other ongoing relationship with us, with respect to your application.Approval for a purchase order does not guarantee future approval for a future purchase order. Approval for a purchase order does not guarantee future approval for a future purchase order.
 
 

5. Cross Border Transactions

 

When you make a cross border purchase transaction, we convert your home currency to the currency of the retailer (the “Foreign Currency”). When you use our products to make a cross border purchase transaction, we will convert what the retailer charges for the goods into your local currency using a retail exchange rate selected by Afterpay at our discretion to determine the purchase order amount and the amounts payable by you in accordance with your Payment Schedule. The exchange rates that we use for currency conversion are determined by Afterpay in its sole discretion and will change regularly to reflect the currency fluctuations in the foreign exchange market. No set up fees or foreign exchange commission will be applied to the exchange rate applied to perform the conversion.  There are no fees for currency conversion performed by us; however, we and our third party service providers may make a margin on any foreign exchange currency conversion, which may be considered an indirect cost to you. The margin is the difference between the wholesale exchange rate that we may be able to obtain for the Foreign Currency and the exchange rate that we then provide in connection with converting transaction to the Foreign Currency.


6. Merchandise Refunds and Other Adjustments Subsequent to Disbursement of Funds
 
Processing refunds and any merchandise exchanges or modifications are subject to the discretion of the merchant to whom you directed us to disburse funds under this Agreement.  If you decide to return goods acquired using funds we have disbursed under this Agreement and request a refund, or a return and refund are otherwise accepted or permitted by law, you will remain obligated to make all payments still outstanding under this Agreement when due.  However, for any amounts that a merchant returns directly to us in connection with such returned or exchanged merchandise, we shall retain such amounts and reflect an equivalent credit to reduce your outstanding obligation to us under this Agreement or, where applicable, refund to you any amounts already paid.  In the event of a partial refund, the credit will be applied against your last payment first.  If you are entitled to a refund for any reason, you agree to accept the refund policy of the specific merchant with whom you placed the order. We will not be liable if a merchant does not give you a credit, imposes any additional charges or takes any other action. 
 
When a merchant issues a refund for a cross border purchase transaction, Afterpay will use the original retail exchange rate (used at the time the order was placed) to determine the refund amount to apply to your Payment Method for the relevant goods or services.   
 

7.  Transfers or Assignments
 
We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent.  To the extent permitted by applicable law, you hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.
 

8. Complaints and Disputes
 
If you have a complaint with us arising out of or related to this Agreement, you should contact us at [email protected]  If you have a complaint arising out of the delivery or quality of the goods you have purchased, you should contact the merchant using the details posted on the retailer’s website. You acknowledge and agree that Afterpay is not responsible for resolving disputes you may have with merchants. If you wish to submit a general complaint to us, you should do so by contacting us using the details posted on the Afterpay website or available through your Afterpay account. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving all complaints and disputes.
 

9.  Arbitration Agreement
 
(a)            To expedite resolution and to minimize the cost of any  claims and disputes arising out of or relating to this Agreement (“Dispute(s)”), we both agree to attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Afterpay account. Our address for such Notices is: Afterpay Canada Limited c/o Blake, Cassels & Graydon LLP Suite 2600, Three Bentall Centre, P.O. Box 49314, 595 Burrard Street, Vancouver, British Columbia, V7X 1L3, Attention: Legal, or by email to [email protected] Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, to help us to evaluate the Dispute and to attempt to resolve it. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, to help you to evaluate the Dispute and to attempt to resolve it. If the informal negotiations are successful, no further action is necessary.
 
(b)            IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, WITHIN THIRTY (30) DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION BY A SOLE ARBITRATOR. THE ARBITRATOR SHALL HAVE THE JURISDICTION TO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY (COLLECTIVELY, “ARBITRABILITY” ISSUES).
 
(c)            The arbitration will be seated in the City of Vancouver, British Columbia, Canada and shall be conducted under the rules of the International Centre for Dispute Resolution (the “ICDR”) in accordance with its International Arbitration Rules (the “ICDR Rules”) which are available on the ICDR’s website www.icdr.org.  Your arbitration fees and your share of arbitrator compensation will be governed by the ICDR Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
 
(d)            The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:
 
(1) any legal proceeding to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator;
 
(2) any legal proceeding to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or
 
(3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Notwithstanding the foregoing, either party may assert claims, if they qualify, in small claims court in any jurisdiction in Canada in which you live or work.
 
(e)            You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents.
 
(f)             NOTWITHSTANDING THE FOREGOING, YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO THE FOLLOWING ADDRESS: Afterpay Canada Limited c/o Blake, Cassels & Graydon LLP Suite 2600, Three Bentall Centre, P.O. Box 49314, 595 Burrard Street, Vancouver, British Columbia, V7X 1L3, or by electronic mail at [email protected], Attention: Legal, and include (i) your Afterpay account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration.  If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.
 

10. Applicable Law and Jurisdiction
 
Except as expressly provided in Section 8 above, this Agreement shall be governed by, and will be construed under and in accordance with, the laws of the province  listed for the borrower above and the federal laws of Canada applicable therein, without regard to choice of law principles.
 

11. No Warranties; Limitation of Liability
 
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS, INDIRECT LOSS, OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR TAX LIABILITY UNDER THE LAWS OF CANADA OR THE PROVINCE IN WHICH YOU LIVE. You agree that if any lawsuit or court proceeding is permitted under this Agreement, the aggregate liability of us, our subsidiaries, partners, and affiliates, and Afterpay Canada Limited, its subsidiaries, partners, and affiliates, to you for all claims arising out of or related to this Agreement or your use or inability to use your Afterpay account will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount of any affected order(s) giving rise to such damages, or (b) CAD$750.00.
 

12.  No Liability for the Purchase Transaction
 
You acknowledge that Afterpay is not engaged in the sale of any goods or services you purchase from a merchant and that we do not have control of and are not responsible or liable for such products or services. You agree that we shall have no liability whatsoever caused by a Merchant’s delay in providing the goods or services or the quality of the goods or services.
 

13. Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Marketing
 
(a)            Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in anyway, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text.
 
(b)            You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your application, this Agreement and/or your account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.
 
(c)            By signing this Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Agreement and your Afterpay account You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
 
(d)            If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us at [email protected] Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you withdraw consent, you may be prevented from using certain features of your Afterpay account.
 
(e)            You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements.  You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.
 

14. Notices and Communications
 
You agree
 
(i) to receive this Agreement and all other communications (including, but not limited to, any other agreements, notices, disclosures or other information we may send to you or that we may be required to send to you under applicable law) in electronic form;
 
(ii) to retain copies of these communications for your records; and (iii) that any electronic disclosures have the same meaning and effect as if provided to you in writing, in paper form. Communications will be sent to your email address listed on your Afterpay account. Any such electronic notices or communications shall be effective and deemed delivered when emailed to your designated email address, as such address may be updated from time to time.
 

15. Electronic Signatures
 
The parties agree that electronic signatures will have the same legal effect as original (i.e. ink) signatures and that an electronic copy of any signature will be deemed an original and may be used as evidence of execution.
 

16.  Miscellaneous
 
This Agreement is effective until all amounts due under the Agreement are paid in full or otherwise cancelled or refunded.  If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. This Agreement, including the Initial Disclosure Statement provided above, Payment Schedule and all other documents incorporated by reference, constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements. The division of this Agreement into sections and the inclusion of headings contained in this document are for reference purposes only and shall not affect the construction or interpretation of this Agreement. No failure by us to exercise or delay in exercising any right under this Agreement (or to insist upon strict performance in any respect or on any occasion) shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by applicable law. 
 

17. Electronic Transactions 
 
THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES PREVIOUSLY PROVIDED.

NOTE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
 
By accepting this Agreement, you acknowledge having received, read, understanding and agree to be bound by this Agreement, including the Initial Disclosure Statement including Payment Schedule provided above. 
 
 
INSTALMENT PAYMENT AUTHORIZATION
 
You authorize us to charge your Payment Method for the down payment immediately.  The amount of the down payment will be based on your  purchase amount, as described in the Agreement.You also authorize us to charge your Payment Method in the amounts and on the dates set out in your  payment schedule, and to correct any erroneous transactions. If we are unable to collect any payment because your Payment Method is declined, you authorize us to charge your Payment Method (or any other debit or credit card you provide us as a replacement payment method) that payment , at any time prior to or within fifteen (15) days after the maturity date on your payment schedule.You are responsible for all fees charged by your financial institution associated with the payments. You must update your Afterpay account with all changes to your debit/credit card information. If you do not update this information and we are unable to charge your Payment Method for an amount due, you may be charged fees by your financial institution.