Terms of Service - Canada

 

August 2020

 

Please read these Terms of Service (the “Agreement”) carefully. By clicking to accept this Agreement, you agree to be bound by this Agreement, consent to electronic communications as further detailed in Section 10, and agree to Afterpay Canada’s Privacy Policy available at www.afterpay.com/en-CA/privacy-policy. 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. You should print and retain a copy of this Agreement for your records. 

 

This Agreement provides that all Disputes (as defined below in Section 12 (“Dispute Resolution”) between you and us will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION  PROVISIONS as described below in Section 12 (“Dispute Resolution”).  Please review Section 12 for the details regarding your agreement to arbitrate any Disputes with us. If you do not agree to be bound by this Agreement, you may not use the Services as defined below in Section 1.

 

1. Parties to this Agreement


This Agreement is a contract between you (“you”, “your”) and Afterpay Canada Limited (“Afterpay”, “we”, “us”, “our”) (each individually a “Party” and, collectively, the “Parties”).  This Agreement is a legally binding agreement between you and Afterpay governing your non-transferrable (unless with our prior written consent) use of Afterpay Services, including use of the Afterpay Card, Afterpay website, and any features and products that Afterpay may make available to you through the Afterpay application or website from time to time (collectively, the “Services”).  We may transfer or assign this Agreement, and any rights under this Agreement, to a third party without notice to you or without your consent.

 

2. The Services

 

Afterpay provides Services that allow merchants to offer consumers the ability to pay for goods or services in installments (the “Extended Repayment Feature”) which may be accessed through your Account.

 

3.  Eligibility


Use of the website is limited to persons who can lawfully enter into and form contracts under applicable law. The Services are intended solely for natural persons that are the legal age of majority in their province or territory of residence and any registration by, use of, or access to, the Services by any person under the legal age of majority is unauthorized, unlicensed and in violation of this Agreement.  By using the Services, you represent and warrant that, at the time you enter into this Agreement, you are at least the age of majority in the province or territory in which you reside.

 

4. Changes to this Agreement


We may amend this Agreement from time to time. If we make any changes to this Agreement that we deem to be material, we will notify you in advance of such changes via the email address associated with your Account. When we make changes to this Agreement, an amended copy of the Agreement will be posted on our website. It is your responsibility to review this Agreement on the Afterpay website from time to time to see if it has changed. If you conduct any transaction using your Account or access our website after we have made a change to this Agreement, that will mean that you agreed to the most recently updated version of this Agreement. If you do not agree with the changes or the terms of this Agreement, do not use the Services. Each time you use your Account or access the website, you will be deemed to agree to the then current terms of this Agreement.  You can get the most up-to-date version of this Agreement at any time on our website. 

 

5. Afterpay Accounts


5.1 You will need your own Afterpay account (each, an “Account”) to use certain Services.  Each person may only hold one (1) Afterpay Account. 


5.2 In consideration of your use of the Services, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on or through the Services or otherwise as requested by Afterpay from time to time (“Registration Data”); (b) maintain the confidentiality and security of your password and identification and agree to accept responsibility for all activities that occur with your permission using your Account or password; (c) maintain and promptly update the Registration Data, and any other information you provide to Afterpay, to keep it accurate, current and complete; (d) promptly notify Afterpay regarding any material changes to information or circumstances that could affect your eligibility to continue to use the Services or the terms on which you use the Services; and (e) be fully responsible for all use of your Account and for any actions that take place using your Account.

 

5.3 If your password is lost or stolen, or if you believe there has been or could be unauthorized access to your Account by third parties, please notify us immediately and change your password as soon as possible.


5.4 You may ask us to  close your Account at any time by contacting us at [email protected] Your request may take up to thirty (30) business days to process. If you owe any payment to Afterpay associated with the Extended Repayment Feature, Afterpay will not close your Account until any amounts owing have been paid in full,  but we may limit your ability to make additional transactions using your Account. You may not close your Account to evade an investigation. You will remain liable for all obligations related to your Account even after the Account is closed. Afterpay will retain your information in accordance with our Privacy Policy (available on the Afterpay website) and any applicable local, provincial, territorial or federal law, rule or regulation.
5.5 We may immediately limit your access to the Services or suspend or close your Afterpay Account where we have reasonable cause to do so including, without limitation, where:

(i) we reasonably consider it necessary to do so in order to:
(A) protect the integrity of our systems or the Services;
(B) prevent fraud;
(C) otherwise protect us against legal, regulatory or non-payment risk;

(ii) we reasonably suspect, or are aware, that you have breached this Agreement or provided us with false, inaccurate or misleading information or used your Afterpay Account or the Services in breach of this Agreement); or

(iii) we otherwise reasonably consider the activity associated with the Afterpay Account to be suspicious.

 

6. Verification and Privacy

 

6.1 You agree to provide any information or documentation reasonably requested by us to verify your identity in connection with your Afterpay Account or any use of Afterpay Services, and you authorize us to make, directly or through third parties, any inquiries we consider necessary to verify your identity or to assess your eligibility to use the Services. Afterpay reserves the right to close, suspend or limit access to the Services in the event we are unable to obtain or verify any of this information to our satisfaction.

 

7. Prohibited Activities


7.1 You agree not to use the Services for any unlawful or fraudulent activity or otherwise in a manner inconsistent with this Agreement and to immediately contact us if you believe that your Account may be subject to unauthorized use, account takeover or other type of fraudulent activity or security breach. By using the Services, you agree that you will not and will not assist or enable others to do any of the following:


(a) Breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or agreements with us, including this Agreement;

 

(b) Provide false, inaccurate or misleading information to us;

 

(c) Provide information belonging to any person other than yourself;

 

(d) Use an Afterpay Account that belongs to another person for yourself or on behalf of another person;


(e) Use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services;


(f) Take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, “spam” or any other such unsolicited overload technique;

 

(g) Commit unauthorized use of the Services, including but not limited to unauthorized entry into our systems, misuse of passwords, or misuse of any information posted to the Services; or

 

(h) Open or use multiple Afterpay Accounts.

 
If we, in our sole discretion, believe that you have engaged in any prohibited activities or otherwise do not comply with this Agreement, we may close, suspend or limit your access to your Afterpay Account, the website or the Services. We may refuse to provide the Services to you in the future or we may take legal action against you.

 

 
8. Intellectual Property

 

All content included in or made available through the Services, such as text, graphics, logos, button icons, images, digital downloads, data compilations, and software is protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) are owned by Afterpay or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.

 

9. Trademark Notices

 

The trademarks, service marks and logos (the “Trademarks”) used and displayed on the Services are registered and unregistered Trademarks of Afterpay.  Other trademarks, service marks and trade names may be owned by others.  Nothing on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark or any other Afterpay intellectual property displayed on the Services.  The name “Afterpay” and any other Trademarks shall not be used in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without prior written permission from Afterpay.

 

10. Consent to Electronic Communications


10.1 By clicking to accept this Agreement, you are deemed to have executed this Agreement electronically. You consent to electronically receive and access via email or your Afterpay Account all records, disclosures and notices (collectively, “Notices”) related to your Account or the Services that we would otherwise be required to provide to you in paper form. Your consent to receive Notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive Notices electronically at any time by sending an email to us at [email protected] with “Revoke Electronic Consent” in the subject line. Any withdrawal of your consent to receive Notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal.  If you fail to provide or if you withdraw your consent to receive communications electronically, Afterpay reserves the right to restrict, deactivate or close your Account.

 

10.2 To ensure that we are able to provide communications to you electronically, you agree to notify us immediately of any change in your email address by updating your Afterpay Account or by contacting us via email.

 

10.3 To view and retain a copy of this Agreement and other communications from us, you will need a device (such as a computer or mobile phone) with a web browser and internet access and either a printer or local or cloud-based storage space. By accepting and agreeing to this Agreement electronically, you represent that (a) you have read and understand the above consent to receive Notices  electronically; (b) you satisfy the minimum hardware and software requirements specified in this Section 10.3; and (c) your consent will remain in effect until you withdraw your consent as specified above in Section 10.1.

 

10.4 For a paper copy of this Agreement or other communications provided by us to you, you may send an email to us at [email protected] with contact information and the address for delivery.

 


11.Short Message Service (“SMS”) Communications

 

11.1 If you choose to open an Account, Afterpay may send you SMS messages. You agree to receive SMS messages to each telephone number provided by you to Afterpay. You certify, represent and warrant that the telephone number that you have provided to us is your number and not someone else's and that you are permitted to receive SMS at that telephone number.  You agree to alert us whenever you stop using a particular telephone number.

 

11.2 Any such SMS messages sent to you by Afterpay will be to verify your phone number or service any upcoming or overdue payments associated with the Extended Repayment Feature—Afterpay will not send you advertisements or marketing-related SMS. You understand that such SMS may be placed using an automatic telephone dialing system or may include automated SMS messages. 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.
11.3. By entering your mobile number, you agree to receive text messages for service notifications and verification codes from Afterpay. Message frequency will vary. Reply HELP for help, STOP to stop (or cancel). Standard Message & Data rates may apply. We do not sell your data. Carriers are not liable for delayed or undelivered messages. 

 

12. Dispute Resolution

 

THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND JURY TRIAL WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY DISPUTE (DEFINED BELOW) BETWEEN THE PARTIES. This Dispute Resolution section applies to general disputes between you and Afterpay.  Any dispute with regards to an Afterpay transaction is governed by the specific governing Afterpay transaction document.  To the extent of any conflict in dispute resolution terms, the subsequent in time transaction document will control.  

12.1 To expedite resolution and the cost of any dispute, controversy or claim between you and us related to any dispute or controversy arising from or relating to your use or inability to use the Services and generally with respect to Afterpay, this Agreement or the enforcement of any provision of this Agreement (a “Dispute”), you and we agree to first 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 your most recent address provided to us in connection with your Account, or an email to the email address you have provided in your Afterpay Account. Our address for such notices is: Afterpay Canada Limited 222 Kearny Street, San Francisco, CA, United States of America 94108 Attn: Afterpay Canada Legal, or by email to us at: [email protected] Any Notice from you must include your name, pertinent Account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent Account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.


12.2 IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, THE PARTIES AGREE THAT EITHER YOU OR WE MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO INITIATE ANY COURT PROCEEDINGS.

 

12.3 The arbitration shall be conducted by a sole arbitrator in an arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable rules. The arbitration shall be seated in Vancouver, British Columbia and shall be conducted in the English language. 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. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

 

12.4 The Parties mutually acknowledge and agree that they will not raise, in connection with any proceeding brought in British Columbia, any defense or objections based upon lack of personal jurisdiction, improper venue, inconvenience of forum or the like.

 

12.5 In the event that any proceeding is brought to determine or enforce the rights of any Party to this Agreement, the prevailing Party shall be entitled to recover reasonable legal fees, costs, and expenses from the other Party, including expert witness fees.

 

12.6 The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit 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.  In addition, either Party may assert claims, if they qualify, in small claims court in Vancouver, British Columbia or the judicial district in which you reside.

 

12.7 The Parties agree that any arbitration will be limited to the Dispute between us and you individually. TO THE FULL EXTENT PERMITTED BY LAW, YOU AND WE EACH HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF US HAVE TO TRIAL BY JURY WITH RESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH MAY ARISE OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.

 

12.8 The Parties agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the superior courts in Vancouver, British Columbia have exclusive jurisdiction and the Parties agree to submit to the venue and personal jurisdiction of such courts.

 

12.9 You may opt out of the foregoing arbitration clause and jury trial waiver provision of this Agreement by NOTIFYING US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE YOU LAST PLACED AN ORDER. To opt out, you must send a written notification to us at  [email protected], Attention: Legal, that includes (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 and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver sections.

 


13. Applicable Law and Jurisdiction


Except as expressly provided otherwise, this Agreement is governed by, and will be construed in accordance with, the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to choice of law principles.  To the extent permissible at law, the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Judicial proceedings (other than small claims actions) that are excluded from the agreement to arbitrate in Section 12 must be brought in the superior courts in Vancouver, British Columbia, unless we both agree to some other location. 

 

14. Limitation of Liability

 

To the extent not prohibited by applicable law, under no circumstances shall we, our subsidiaries, partners, or affiliates, be liable to you for:  (a) personal injury, lost profits or revenue, or any indirect, incidental, consequential, special or exemplary damages, arising from or relating to this Agreement, the use of or inability to use an Afterpay Account, the Services, or our or your liabilities to third parties arising from any source; or (b) except as required under applicable law, any lost profits or revenues, indirect, incidental, consequential, special or exemplary damages, arising from or relating to the conduct of you or anyone else in connection with the use of an Afterpay Account or the Services, including, but not limited to, damages arising from your failure to provide us with accurate information or a third party’s failure to correctly verify such information. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS SECTION MAY NOT APPLY TO YOU. You agree that if any court proceeding is permitted under this Agreement, the aggregate liability of us and our affiliates and suppliers to you for all claims arising out of or related to this Agreement or your use or inability to use the Services will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount you any affected order(s) giving rise to such damages, or (b) the amount of five hundred CAD dollars ($500.00).  These limitations will apply even if the above stated remedy fails of its essential purpose.

 

15. Indemnification

 

You agree to release, indemnify and hold harmless us, our affiliates, and our and their respective officers, directors, employees and agents from and against any claims, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use your Afterpay Account or the Services; (b) your breach or alleged breach of this Agreement; (c) your violation of any rights of a third party, including but not limited to any negligent or willful misconduct of your employees, contractors, or agents, or a breach of any contracts or other relationships between you and third parties; (d) your violation of any applicable law; or (e) your failure to provide and maintain true, accurate, current and complete information in your Afterpay Account. You shall cooperate as fully as reasonably required in the defense of any such claim.  Afterpay reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.  You agree not to settle any matter without the prior written consent of Afterpay.  For the avoidance of doubt, this indemnification, defense and hold harmless obligation will survive these Terms of Use and the termination of your use of the Services.

 

16. Disclaimer of Warranties


16.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AFTERPAY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

16.2 AFTERPAY DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.


16.3 Afterpay does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a seller of any good or services purchased using the Extended Repayment Feature. Afterpay does not have control of goods or services that are paid for using the Services. You understand that our website may display, include or make available content, data, information or materials for third parties or that our website may contain links to other independent third-party website, including retailers (“Third-Party Sites”).  Third-Party Sites are not published by nor under the control of Afterpay, and Afterpay is not responsible for and does not review or endorse and has no control over any Third-Party Site content or privacy policies (if any), which may also change from time to time.  You will need to make your own independent judgement regarding your interaction with any Third-Party Sites, including the purchase and use of any products or services accessible through them. You acknowledge that we are not responsible or liable, directly or indirectly, for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services. Nothing in this Agreement grants you any licenses to third party trademarks or content, which shall remain the property of the respective owners.

 


17.  Miscellaneous


17.1 This Agreement is effective until terminated by either Party. You may terminate this Agreement by destroying all Services-related materials obtained from us or Afterpay, provided any amounts owing to us associated with any Extended Repayment Feature (including any fees or expenses incurred) are paid in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from us if, in our sole discretion, you fail to comply with any term or provision of this Agreement.

 

17.2 If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, 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.

 

17.3 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. 

 

17.4 The following provisions of this Agreement shall survive termination of your use or access to the Services: the sections concerning Dispute Resolution, Applicable Law and Jurisdiction, Limitation of Liability, Indemnification, Disclaimer of Warranties, and Miscellaneous, and any other provision that by its terms survives termination of your use or access to the Services.


17.5 This Agreement constitutes and contain the entire agreement between you and us with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. You and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

 


18. Questions

 

If you have any questions, complaints or claims with respect to the Services, please contact us at [email protected] We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.