User Agreement

(Updated June 19, 2013)

THIS 4PAY USER AGREEMENT (“AGREEMENT”) IS A CONTRACT BETWEEN YOU (“YOU” OR “USER”) AND 4PAY, INC., A CANADIAN CORPORATION (“4PAY”). THIS AGREEMENT GOVERNS YOUR USE OF 4PAY’S MOBILE PAYMENT AND DIGITAL WALLET APPLICATION AND ALL RELATED SERVICES (COLLECTIVELY “4PAY Digital Wallet”). TO USE 4PAY Digital Wallet, YOU MUST: (1) BE AT LEAST EIGHTEEN YEARS OLD TO OPERATE A PARENT ACCOUNT; (2) READ, AGREE WITH, AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (3) COMMUNICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON THE “CREATE ACCOUNT” BUTTON. IF YOU DO NOT CLICK ON THE “CREATE ACCOUNT” BUTTON, YOU WILL NOT BE ABLE TO ACCESS THE 4PAY Digital Wallet APPLICATION (“APPLICATION”). YOUR USE OF 4PAY Digital Wallet ALSO COMMUNICATES YOUR ACCEPTANCE OF THIS AGREEMENT, AS IT MAY BE MODIFIED FROM TIME TO TIME. THIS AGREEMENT INCLUDES THE PROVISIONS BELOW AND THE PROVISIONS OF 4PAY’S PRIVACY POLICY (“PRIVACY POLICY”) AND E-SIGN POLICY (“E-SIGN POLICY”), BOTH OF WHICH ARE POSTED AT 4PAY’S WEBSITE 4PAY.CA (“4PAY’S WEBSITE”). THEREFORE, WHEN YOU ACCEPT THIS AGREEMENT, YOU ALSO ACCEPT 4PAY’S PRIVACY POLICY AND 4PAY’S E-SIGN POLICY. THE TERMS “YOU” AND “USER” ARE USED INTERCHANGEABLY IN THIS AGREEMENT, AND THE TERM “4PAY Digital Wallet” INCLUDES THE “APPLICATION.”

4PAY reserves the right to modify this Agreement, the Privacy Policy, the E-Sign Policy, and any other applicable 4PAY agreements or policies relating to 4PAY Digital Wallet at any time in its sole and absolute discretion by posting the modifications on 4PAY’s Website. Your use of 4PAY Digital Wallet after the posting of any modification on 4PAY’s Website constitutes your acceptance of the modification. It is your responsibility to visit 4PAY’s Website on a regular basis to obtain the latest updates of this Agreement, including the Privacy Policy and 4PAY’s E-Sign Policy. You can always find the most recent, updated versions of this Agreement, the Privacy Policy and the E-Sign Policy on 4PAY’s Website.

  1. 4PAY Digital Wallet

4PAY Digital Wallet consists of 4PAY’s proprietary computer software, including the Application, and all software, tools, technology, documentation, components, and Internet-based services, including access to 4PAY’s Website, that 4PAY supplies in connection with delivery of its mobile payment and related services to you. 4PAY reserves the right, in its sole and absolute discretion, to upgrade, add, delete, or modify features of 4PAY Digital Wallet at any time and from time to time, without notice.

4PAY Digital Wallet allows you to store on 4PAY’s servers credit, debit, rewards, and other card information associated with card issuers that accept mobile payments via 4PAY Digital Wallet (“Card Issuers”). You then can access this information via compatible internet devices including smartphone or other compatible mobile device (“Mobile Device”) for point of sale transactions with selected providers of goods and services that accept mobile payments via 4PAY Digital Wallet. 4PAY does not represent that all Mobile Devices are compatible with 4PAY Digital Wallet or that 4PAY Digital Wallet will function with all carriers of wireless services. Not all issuers of debit, credit, and other cards accept payment with 4PAY Digital Wallet, and not all sellers of goods and services accept 4PAY Digital Wallet. Payment with 4PAY Digital Wallet is available only at certain locations and only with certain compatible internet based devices including Mobile Devices. 4PAY reserves the right, in its sole and absolute discretion, to add or delete Card Issuers, Vendors, compatible Mobile Devices, and locations that accept 4PAY Digital Wallet at any time.

Payments you make with your Mobile Device (“Mobile Payments”) are processed via electronic communication among sellers of the goods and services that you purchase that accept payment with 4PAY Digital Wallet (“Vendors”), Card Issuers, and the payment service providers and processors (collectively “Payment Processors”) that process transactions for the Vendors and the Card Issuers. 4PAY Digital Wallet provides you with access to your card information and a means of communication among you, Vendors, Card Issuers, and Payment Processors. 4PAY is an independent contractor for all purposes of the 4PAY Digital Wallet services that it provides to you.

When you initiate a Mobile Payment to a Vendor, you authorize the Vendor, the Card Issuer, and the Payment Processor to implement the entire transaction, and you ultimately will receive a bill or other statement from the Vendor or the Card Issuer. You are responsible for all Mobile Payments that you make with 4PAY Digital Wallet.

4PAY is not a bank, and it does not offer banking services as defined by the Bank Of Canada.

  1. Third Party Responsibilities

4PAY is not responsible for any of the products or services that you purchase or rewards or other incentives that you earn using a credit, debit, or rewards card that you access with 4PAY Digital Wallet. 4PAY is an independent contractor for all purposes of the 4PAY Digital Wallet services that it provides to you. Complaints regarding products, services, and rewards and incentives programs must be directed to the Vendor and, in the case of complaints regarding rewards, you may have recourse to the Card Issuer or another third party involved in providing or administering the rewards program. You also may have certain refund, reversal, chargeback, or other rights with respect to the Card Issuer pursuant to your agreement with the Card Issuer or under applicable law.

  1. Your Responsibilities

You are responsible for all payments, fees, interest, penalties, and similar charges relating to your credit and debit cards and your purchases with 4PAY Digital Wallet. You must comply with the terms and conditions of your agreements with your Card Issuers and, if applicable, the card networks and associations with which they are associated (collectively “Networks”). You are responsible for all fees and charges imposed by your Internet and Mobile Device service providers and compliance with the terms and conditions of your agreements with them. 4PAY urges you to retain the originals of all of your credit, debit, gift, rewards, and other cards in a safe place, such as a safe or other secure location at home or in a bank safe deposit box, because the occasion may arise when it is necessary or desirable to have an original of one or more of your Cards.

  1. Personal Information

When you open a 4PAY Digital Wallet account, you must provide 4PAY with certain personally identifiable information (“Personal Information”). Personal Information may include the following: your name and e-mail address; your mailing address; your Internet browser type and Internet Protocol address; your credit, debit, rewards, and other card information [which may include your card permanent account number (PAN), card issuer, card type (e.g., Visa), card expiration date, card security code, name of card holder, and card billing address]; a password that you create; and a personal identification number that you create (PIN). When you use 4PAY Digital Wallet, some of the Personal Information described in the preceding sentence, as well as other information relating to your transaction that also may be Personal Information, including the date, amount, and location of the transaction, will be shared among 4PAY, Vendors, Card Issuers, and Payment Processors. You must keep your Personal Information up to date. 4PAY, Vendors, and Card Issuers also may use 4PAY Digital Wallet to offer you promotions, incentives, contests, rewards, credits, and coupons. By opening a 4PAY Digital Wallet account, and each time you use 4PAY Digital Wallet, you consent to the sharing of your Personal Information as described in this Agreement (including the Privacy Policy) and authorize 4PAY to retain your Personal Information to comply with federal and state regulatory requirements and the requirements of Vendors, Card Issuers, Payment Processors, and the Networks.

  1. User Representations and Warranties

When you open a 4PAY Digital Wallet account, and each time that you use or access 4PAY Digital Wallet, you represent and warrant to 4PAY that (1) you are at least 18 years old, (2) all Personal Information that you have provided to 4PAY is complete and accurate in all material respects, and (3) you are not subject to sanctions administered the Canadian Revenue Agency (“CRA”) or reported by the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) or by the United States Office of Foreign Assets Control (“OFAC”), included in any Executive Orders issued in connection with OFAC or the USA Patriot Act or similar legislation or regulation, on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, or a Senior Political Figure as defined in Section 312 of the USA Patriot Act. You may not use 4PAY Digital Wallet if you are a resident of a country embargoed by the United States or are a foreign person or entity embargoed, blocked, or denied entry or other privileges by any governmental authority or agency of Canada.

  1. License

4PAY hereby grants you a personal, revocable, non-exclusive, non-transferable, limited license (“License”) to use 4PAY Digital Wallet (which includes the Application) for personal use on a computer or Mobile Device in accordance with and subject to all the terms and conditions contained in this Agreement. 4PAY reserves all rights not expressly granted to you in this Agreement. Your use of 4PAY Digital Wallet is strictly limited to use of your computer or Mobile Device for the purpose of accessing your credit card, debit, or rewards card information to make or review mobile payments (“Mobile Payments”) for goods and services with those credit, debit, rewards, and similar cards for which you activate access via 4PAY Digital Wallet. You may not use the License or 4PAY Digital Wallet for any other purpose. Any other use of the License or 4PAY Digital Wallet is strictly prohibited, and you may not sublicense or otherwise grant any third party permission to use 4PAY Digital Wallet on your behalf or on behalf of such third party or any other party. You shall not copy, publish, reproduce, alter, modify, adapt, create derivative works from, sell, license, distribute, share, publicly display, republish, upload, post, transmit, decompile, decipher, or reverse engineer 4PAY Digital Wallet or any information or material that is a component of or otherwise associated with 4PAY Digital Wallet, which information and material includes the intellectual property of 4PAY described in the following paragraph. You shall not attempt to work around, bypass, or circumvent any of the technical features or aspects of 4PAY Digital Wallet.

4PAY, Inc., 4PAY, the 4PAY logo, the graphics, icons, and the scripts used in connection with 4PAY Digital Wallet on your computer or Mobile Device, 4PAY’s Website, or elsewhere are trade dress, service marks, trademarks, or registered trademarks of 4PAY, Inc., 4PAY Digital Wallet, 4PAY’s Website, and their contents, features, and related software are protected by trade dress, copyright, service mark, trademark, patent, trade secret, and other laws, and by international treaties, the laws of Canada and other nations, and other intellectual property protections. 4PAY reserves all present and future intellectual property rights throughout the world, and the License granted to you pursuant to this Agreement only permits you to use 4PAY Digital Wallet in strict compliance with all the terms and conditions of this Agreement. 4PAY’s reserved intellectual property rights include, without limitation, the following: all patent, trademark, service mark, trade secret, and trade dress rights; all copyrights; all mask work rights, rights of publicity, and moral rights; and all associated goodwill.

  1. Personal Information, Disclosure, and Security

As referenced in Section 4 above – When you open a 4PAY Digital Wallet account, you must provide 4PAY with Personal Information. When you use 4PAY Digital Wallet, some of this Personal Information, and additional Personal Information relating to your transactions, will be disclosed to and shared among 4PAY, Vendors, Card Issuers, Payment Processors, and third parties contracted by or otherwise affiliated with 4PAY that provide products or services that are necessary or desirable to assure the performance and functionality of 4PAY Digital Wallet (collectively “4PAY Contractors”).

4PAY has expended considerable time, effort, and resources, and implemented technical and organizational measures, to maintain the security of your Personal Information. However, 4PAY cannot and does not guarantee that your Personal Information is impervious to all breaches of security through interception, hacking, or other means. Operation of 4PAY Digital Wallet, 4PAY’s host servers, and communication and other links among 4PAY, Vendors, Card Issuers, and Card Processors may be interfered with by numerous factors beyond 4PAY’s or their control.

Vendors, Card Issuers, and Payment Processors cannot process a Mobile Payment without identifying certain Personal Information, including name, card type, card permanent account number, card expiration date, card security code, transaction details, transaction authorization code, and billing address. By opening a 4PAY Digital Wallet account and by using 4PAY Digital Wallet, you consent to the transmission of Personal Information to 4PAY and authorize 4PAY and its agents to receive, record, store, and process your Personal Information and permit Vendors, Card Issuers, Payment Processors, and 4PAY Contractors access to it as reasonably necessary or desirable to facilitate Mobile Payments and to maintain and improve the services that 4PAY Digital Wallet provides. You also authorize Vendors, Card Issuers, Payment Processors, and 4PAY Contractors to receive, record, store, and process your Personal Information as reasonably necessary or desirable to facilitate Mobile Payments and to maintain and improve the services that 4PAY Digital Wallet provides.

The scope and use of your Personal Information by 4PAY are described in and subject to the terms and conditions of this Agreement and 4PAY’s Privacy Policy, which forms an integral part of this Agreement. 4PAY’s use of your Personal Information is subject to the Privacy Policy. As provided in the Privacy Policy, you cannot opt-out of the disclosure or sharing of Personal Information that is necessary or desirable for the functionality of 4PAY Digital Wallet, but you may have the right to opt-out of the disclosure or sharing of Personal Information for marketing purposes. Please find the most recent version of 4PAY’s Privacy Policy here. Card Issuers, and some Vendors, will have their own privacy policies regarding your Personal Information. 4PAY has no responsibility for those policies.

  1. Acceptable Use

Under no circumstance shall you use 4PAY Digital Wallet for any purpose other than to facilitate an authorized Mobile Payment. You shall not access or use 4PAY Digital Wallet in any manner that (1) is unauthorized, deceptive, fraudulent, or unlawful, or that gives rise to civil liability, (2) uses technology or any other means to improperly access or monitor 4PAY or any Vendor, Card Issuer, Payment Processor, or 4PAY Contractor, (3) uses technology or any other means to improperly access, monitor, or use any material or data or proprietary or confidential information of 4PAY, any Vendor, Card Issuer, Payment Processor, or 4PAY Contractor, or any party that uses the services of 4PAY or any Vendor, Card Provider, Payment Processor, or 4PAY Contractor, (4) uses any automated system, such as “robots,” “spiders,” “scrapers,” or “offline readers” to (a) improperly access or monitor 4PAY or any Vendor, Card Issuer, Payment Processor, or 4PAY Contractor, or any party that uses the services of 4PAY or any Vendor, Card Provider, Payment Processor, or 4PAY Contractor, or (b) improperly access, monitor, or use any material or data or proprietary or confidential information of 4PAY or any Vendor, Card Issuer, Payment Processor, or 4PAY Contractor, or any party that uses the services of 4PAY or any Vendor, Card Provider, Payment Processor, or 4PAY Contractor, (5) attempts to introduce spam, viruses, worms, Trojan horses, or any other computer codes, files, or programs that damage, disable, overburden, interrupt, impair, limit, or interfere with the functionality of any computer or telecommunications software, hardware, or network, including 4PAY Digital Wallet, (6) attempts to gain unauthorized access to 4PAY’s host servers, computer networks, or user or merchant accounts, (7) attempts to damage, disable, overburden, interrupt, impair, limit, or interfere with 4PAY’s servers or networks, (8) attempts to modify the code or functionality of 4PAY Digital Wallet, or (9) violates this Agreement.

You agree not to use 4PAY Digital Wallet to make Mobile Payments for any of the following purposes or in connection with any of the following transactions: (1) any illegal activity; (2) betting, including lottery tickets, casino gaming chips, off-track betting, wagers at races, and gambling establishments.

If any of the activities or transactions described above occurs, 4PAY shall have the right, in its sole and absolute discretion and without prior notice, to suspend or terminate your License to use 4PAY Digital Wallet, but 4PAY shall have no obligation to do so and 4PAY shall not be responsible for any failure or delay in doing so or taking any other action.

Nothing contained in this Agreement or the Privacy Policy supersedes or limits your obligations under any agreement you may have with a Card Issuer, including obligations regarding granting permission to third parties to use your credit, debit, or rewards card, and you shall comply at all times with those obligations. If you grant permission to another person to use 4PAY Digital Wallet to access your stored credit, debit, or rewards card information in violation of this Agreement or your agreement with a Card Issuer, you do so at your own risk. The granting of such permission shall not relieve you of your responsibilities under this Agreement, and the person to whom you have granted permission also shall be bound by this Agreement. If we believe that a Mobile Payment or other use of 4PAY Digital Wallet violates this Agreement or any applicable law or regulation, we may decline to process the Mobile Payment or otherwise suspend your use of 4PAY Digital Wallet without prior notice. In the case of a reasonable suspicion that you are using 4PAY Digital Wallet for an illegal purpose, you acknowledge and agree that we may share information regarding you and your use of 4PAY Digital Wallet with law enforcement authorities.

You shall immediately notify 4PAY and the applicable Card Issuer of any inaccurate, unauthorized, or fraudulent Mobile Payment transaction or any breach of security (such as use of your PIN). Do not share your PIN. You are responsible for all transactions made in whole or in part via your 4PAY Digital Wallet account. 4PAY shall not be responsible for any losses arising out of the loss or theft of Personal Information or from inaccurate, unauthorized, or fraudulent Mobile Payment transactions that affect credit card or eCash amounts reported in the 4PAY Mobile wallet. Your liability for inaccurate, unauthorized, or fraudulent Mobile Payment transactions is governed by your agreement with the applicable Card Issuer. Your sole remedy against 4PAY with respect to any inaccurate, unauthorized, or fraudulent Mobile Payment transaction is to terminate this Agreement and not make any further Mobile Payments using 4PAY Digital Wallet.

  1. Notices and Disclosures

You agree that 4PAY may provide notices and disclosures required by law and other information to you regarding 4PAY Digital Wallet and this Agreement (including the Privacy Policy and the E-Sign Policy) by posting it on 4PAY’s Website or by sending you an e-mail at the e-mail address you use in connection with your 4PAY Digital Wallet account. Upon your acceptance of this Agreement, you confirm that you have read, understood, and accepted 4PAY’s E-Sign Policy. Notices and disclosures posted on 4PAY’s Website or e-mailed to you shall be deemed effective 24 hours after posting or e-mailing. It is your responsibility to visit 4PAY’s Website on a regular basis to obtain notices, disclosures, and the latest updates of this Agreement, including the Privacy Policy and the E-Sign Policy. It also is your responsibility to update your Personal Information as it may change from time to time, including your e-mail address. You agree that electronic notices and disclosures have the same meaning and effect as if provided in a paper format. You acknowledge your understanding that email messages may not be secure, may contain computer viruses or other defects, may not be accurately replicated on other systems, or may be intercepted, deleted or interfered with or without the knowledge of the sender or the intended recipient. 4PAY makes no warranties in relation to these matters.

  1. Disclaimer of Warranties

4PAY IS PROVIDING 4PAY Digital Wallet TO USER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY. USER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF 4PAY Digital Wallet. WRITTEN OR ORAL ADVICE OR INFORMATION THAT YOU MAY OBTAIN FROM 4PAY THROUGH 4PAY Digital Wallet OR 4PAY’S WEBSITE, INCLUDING THROUGH COMMUNICATION WITH 4PAY’S CUSTOMER SUPPORT DEPARTMENT, DO NOT CREATE ANY EXPRESS OR IMPLIED WARRANTIES. 4PAY’S ONLY WARRANTIES AND OTHER OBLIGATIONS TO USER ARE CONTAINED IN AND ARE LIMITED BY THIS AGREEMENT.

ANY MATERIAL DOWNLOADED OR OTHERWISE RECEIVED THROUGH 4PAY Digital Wallet OR 4PAY’S WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ALONE ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE DEVICE, OR STORED DATA AS A RESULT OF SUCH DOWNLOADING OR RECEIPT OR USE OF 4PAY Digital Wallet OR 4PAY’S WEBSITE, INCLUDING ALL REPAIR AND REPLACEMENT COSTS. 4PAY DOES NOT WARRANT, GUARANTEE, ENDORSE, OR ASSUME RESPONSIBILITY FOR ANY GOODS OR SERVICES ADVERTISED, OFFERED, OR SOLD BY A THIRD PARTY THROUGH 4PAY Digital Wallet OR 4PAY’S WEBSITE, WHETHER DONE DIRECTLY OR THROUGH BANNERS OR BY MEANS OF A HYPERLINK TO ANOTHER WEBSITE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4PAY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, 4PAY DOES NOT WARRANT OR GUARANTEE THAT (1) 4PAY Digital Wallet WILL OPERATE ON AN UNINTERRUPTED BASIS OR BE AVAILABLE AT ALL TIMES AND ALL PLACES OF BUSINESS, OR (2) THE SECURITY OF YOUR PERSONAL INFORMATION WILL NOT BE BREACHED, OR (3) PERSONAL INFORMATION OR OTHER DATA TRANSMITTED OR STORED IN CONNECTION WITH 4PAY Digital Wallet (INCLUDING AS PART OF A MOBILE PAYMENT TRANSACTION) WILL BE SUCCESSFULLY, ACCURATELY, OR SECURELY TRANSMITTED OR STORED, OR (4) 4PAY Digital Wallet IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (5) GOODS AND SERVICES PROVIDED BY THIRD PARTIES WILL BE OF THE NATURE OR QUALITY REPRESENTED BY THE PROVIDER OR REQUIRED BY LAW.

YOU ACKNOWLEDGE AND AGREE THAT ALL OF THE DISCLAIMERS OF WARRANTY CONTAINED IN THE PRECEDING PARAGRAPHS OF THIS “DISCLAIMER OF WARRANTIES” SECTION OF THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THAT 4PAY WOULD NOT PROVIDE 4PAY Digital Wallet OR ACCESS TO 4PAY’S WEBSITE TO YOU WITHOUT THEM.

APPLICABLE LAW MAY NOT PERMIT SOME OR ALL OF THE FOREGOING DISCLAIMERS OF WARRANTY, SO SOME OR ALL OF THEM MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM COUNTRY TO COUNTRY.

  1. Limitation of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, INCLUDING, WITHOUT LIMITATION, A NEGLIGENT ACT OR A NEGLIGENT OMISSION OR FAILURE TO ACT, SHALL 4PAY OR ANY OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, OR CONTRACTORS BE RESPONSIBLE OR LIABLE TO USER OR ANY THIRD PARTY (1) BASED ON THE USE OR PERFORMANCE OF 4PAY Digital Wallet OR 4PAY’S WEBSITE, INCLUDING PERFORMANCE OF A MOBILE PAYMENT TRANSACTION THAT INVOLVES THE USE OF 4PAY Digital Wallet AT ANY STAGE OF A MOBILE PAYMENT TRANSACTION; OR (2) FOR ANY INTERRUPTION, UNAVAILABILITY, OR CESSATION OF 4PAY Digital Wallet SERVICE OR 4PAY’S WEBSITE; OR (3) BASED ON A BREACH OF SECURITY OR UNAUTHORIZED ACCESS TO 4PAY’S SERVERS OR ANY PERSONAL INFORMATION OR OTHER DATA STORED ON 4PAY’S SERVERS; OR (4) BASED ON A BREACH OF SECURITY OR UNAUTHORIZED ACCESS TO YOUR COMPUTER OR MOBILE DEVICE OR ANY PERSONAL INFORMATION OR OTHER DATA STORED ON THEM; OR (5) FOR THE NATURE OR QUALITY OF A GOOD OR SERVICE THAT YOU PURCHASE WITH 4PAY Digital Wallet OR OTHERWISE THROUGH 4PAY’S WEBSITE; OR (6) FOR PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO 4PAY Digital Wallet OR 4PAY’S WEBSITE; OR (7) FOR ANY BUGS, VIRUSES, TROJAN HORSES, WORMS, OR SIMILAR OR RELATED MALWARE THAT A THIRD PARTY MAY TRANSMIT VIA 4PAY Digital Wallet OR 4PAY’S WEBSITE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL 4PAY OR ANY OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, OR CONTRACTORS BE RESPONSIBLE OR LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY (PUNITIVE) DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY OF THE FOLLOWING: LOSS OF GOODWILL; LOSS OF PROFITS; LOSS, THEFT, OR CORRUPTION OF PERSONAL INFORMATION OR OTHER DATA; LOSS OF USE OR OTHER INTANGIBLE LOSSES; THE INABILITY TO USE 4PAY Digital Wallet OR 4PAY’S WEBSITE; OR COMPUTER OR MOBILE DEVICE FAILURE OR MALFUNCTION.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL USER OR ANY THIRD PARTY BE ENTITLED TO ANY REMEDY FOR DAMAGES OTHER THAN DIRECT, ACTUAL DAMAGES, THE TOTAL AGGREGATE AMOUNT OF WHICH DAMAGES SHALL NOT EXCEED U.S. $500, REGARDLESS OF WHETHER THE DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR ANY OTHER BASIS.

YOU ACKNOWLEDGE AND AGREE THAT ALL OF THE LIMITATIONS CONTAINED IN THE PRECEDING PARAGRAPHS OF THIS “LIMITATION OF LIABILITIES” SECTION OF THIS AGREEMENT (1) ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THAT 4PAY WOULD NOT PROVIDE 4PAY Digital Wallet OR ACCESS TO 4PAY’S WEBSITE TO YOU WITHOUT THEM, AND (2) APPLY REGARDLESS OF WHETHER THE REMEDY SOUGHT IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR OTHERWISE.

APPLICABLE LAW MAY NOT PERMIT SOME OR ALL OF THE FOREGOING LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THEM MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM PROVINCE TO PROVINCE.

  1. Indemnification

To the maximum extent permitted by applicable law, upon demand by 4PAY, User shall indemnify, defend, and hold 4PAY and its shareholders, officers, directors, employees, agents, representatives, contractors, and affiliates, and their respective owners, shareholders, officers, directors, managers, employees, agents, representatives, and contractors free and forever harmless from and against any and all claims, demands, actions, causes of action, damages, liabilities, judgments, costs, expenses (including attorneys’ and other professionals’ fees), interest, taxes, fines, and penalties that arise from or relate to User’s actual or alleged (a) misuse of 4PAY Digital Wallet, (b) violation of this Agreement, (c) breach of any representation or warranty of User in this Agreement, (d) violation of the rights of any third party, or (e) violation of any applicable federal, state, or foreign law or regulation. 4PAY reserves the right to assume the exclusive defense and control of any matter subject to indemnification by User, in which event User shall cooperate with 4PAY in the defense of the matter and pay all costs and expenses 4PAY incurs in such defense, including attorneys’ fees and other professionals’ fees.

  1. Informal Dispute Resolution

If you have a claim, demand, complaint, controversy, or dispute of any kind whatsoever that relates to or arises from this Agreement, 4PAY Digital Wallet, or the relationship between us (each, a “Dispute”), please contact our Customer Support Portal at 4PAY.CA or by telephone at 1-844-877-4PAY (4729), and we will do our best to resolve the Dispute with you. However, please recall that, as this Agreement states in several places, 4PAY is not responsible for the acts or failures to act of third parties or for products and services provided by third parties. If you have a complaint about a product, you must contact the Vendor and, perhaps, the distributor or manufacturer. If you have a dispute regarding a credit card bill, you must contact your Card Issuer and, perhaps, the Vendor. If you have a complaint or dispute regarding loyalty points or other rewards, you must contact the applicable Vendor or Card Issuer. 4PAY has no responsibility for such matters, and the term “Dispute” does not include third-party complaints or disputes with third parties.

If 4PAY has a claim, demand, complaint, controversy, or dispute of any kind whatsoever with you that relates to or arises from this Agreement, 4PAY Digital Wallet, or the relationship between us, 4PAY’s claim, demand, complaint, or dispute shall be deemed a “Dispute” and, before initiating arbitration on the terms and conditions set forth in Section 14 below, 4PAY first shall contact you and attempt to resolve the Dispute on an informal basis.

The term “Dispute” includes claims, demands, complaints, controversies, and disputes of every kind and nature whatsoever, including those based on contract, tort, statute, law, equity, or any other legal theory.

  1. Binding Arbitration of Disputes

Summary: In the unlikely event that, after contacting our Customer Support Department to resolve a Dispute with 4PAY on the informal basis contemplated by Section 13 above, the Dispute remains unresolved, you and 4PAY agree to resolve the Dispute through binding arbitration by the Canadian Arbitration Association (“CAA”). If 4PAY has a Dispute with you that it has not been able to resolve on the informal basis contemplated by Section 13, 4PAY also agrees to resolve the Dispute through binding arbitration by the CAA.

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or a jury, generally permits less discovery than is available in a court proceeding, and the arbitrator’s decision or award is subject to very limited court review. The arbitrator can award the same damages and relief that a judge or other court official could award if a Dispute relating to or arising from this Agreement were the subject of a court proceeding. However, arbitration under this Agreement will be on an individual basis. That is, we agree that class arbitrations, class actions, private attorney general actions, and other group or collective actions are not permitted under this Agreement.

If you initiate arbitration of a Dispute that is not frivolous, 4PAY will pay all filing, administration, and arbitrator fees, regardless of whether the arbitrator decides in favor of you or 4PAY. If, however, the arbitrator decides that either the substance of your Dispute or the relief you sought is frivolous or brought for an improper purpose, then the payment of all such fees will be governed by the applicable rules of the CAA. The arbitrator may award attorneys’ fees and costs in accordance with applicable law, but 4PAY agrees that it shall not be entitled to attorneys’ fees, even if the arbitrator decides in favor of 4PAY, unless the arbitrator determines that either the substance of your Dispute or the relief you sought is frivolous or brought for an improper purpose, in which case the payment of attorneys’ fees shall be governed by the applicable rules of the CAA.

Arbitration Agreement: The following provisions shall apply to arbitration under this User Agreement:

(a) To the maximum extent permitted by law, you and 4PAY agree to resolve any and all Disputes that have not been resolved through the informal process contemplated by Section 13 above by submitting the unresolved Dispute to binding arbitration by the Canadian Arbitration Association (www.canadianarbitrationassociation.ca) in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (collectively, the “Rules”). Except as otherwise specifically provided in this Agreement, the arbitration shall be conducted in accordance with the Rules (including the Optional Rules for Emergency Measures of Protection), and judgment on the arbitrator’s award may be entered in any appropriate court that has jurisdiction;

(b) You may access the Rules, which are subject to change by the CAA from time to time, at www.canadianarbitrationassociation.ca or at 1-800-856-5154. You or 4PAY may initiate arbitration of a Dispute in the manner provided for in the Rules, except that you or 4PAY, as applicable, must commence arbitration within one (1) year after the occurrence of the event or the act or the failure to act on which the Dispute is based;

(c) There shall be a single arbitrator, and you and 4PAY must agree upon the arbitrator within the time period and in the manner provided by the Rules. If you and 4PAY are unable to agree upon an arbitrator, the CAA shall select the arbitrator in accordance with the Rules. The arbitrator shall have at least ten (10) years of experience as an arbitrator and shall be knowledgeable of the specific subject matter of the Dispute. Unless you and 4PAY agree otherwise, the arbitration shall be conducted in the City of Toronto, Ontario, Canada, except that, if you are a consumer and the Dispute relates to your purchase of goods or services for personal, family, or household use, you may require that the arbitration be conducted in the county or parish in the Canada in which you reside. If you are a consumer and the Dispute relates to your purchase of goods or services for personal, family, or household use, you may pursue resolution of the Dispute in a small claims court that has jurisdiction.

(d) As provided in the Rules, you or 4PAY may seek interim measures (such as a temporary injunction) either pursuant to the Optional Rules for Emergency Measures of Protection, or in separate judicial proceeding limited to temporary, interim relief. The arbitrator shall have the discretion and authority to order such depositions as the arbitrator considers necessary for a full and fair exploration of the issues the Dispute presents, consistent with the nature of an arbitration proceeding conducted in accordance with the Rules;

(e) The arbitrator shall issue a reasoned written explanation of the legal and factual basis of the arbitrator’s award that is sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and binding, and it may be entered as a judgment in any appropriate court that has jurisdiction. 4PAY shall pay all filing, administration, and arbitrator fees, regardless of whether the arbitrator decides in favor of you or 4PAY, unless the arbitrator determines that either the substance of your Dispute or the relief you sought is frivolous or brought for an improper purpose, in which case the payment of all such fees will be governed by the Rules. The arbitrator may award attorneys’ fees and costs in accordance with applicable law, but 4PAY agrees that it shall not be entitled to attorneys’ fees, even if the arbitrator decides in favor of 4PAY, unless the arbitrator determines that either the substance of your Dispute or the relief you sought is frivolous or brought for an improper purpose, in which case the payment of attorneys’ fees shall be governed by the Rules;

(f) YOU AND 4PAY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS MEMBER, OR REPRESENTATIVE OF ANY PURPORTED CLASS OR OTHER GROUP IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL, OR OTHER REPRESENTATIVE OR COLLECTIVE PROCEEDING. FURTHER, UNLESS YOU AND 4PAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, CLASS, OR COLLECTIVE PROCEEDING. IF THIS SPECIFIC PROVISION IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THE ARBITRATION AGREEMENT PROVIDED FOR IN THIS SECTION 14 SHALL BE NULL AND VOID. IF ANY OTHER PROVISION OF THIS SECTION 14 IS FOUND TO BE UNENFORCEABLE, IT SHALL BE SEVERED AND THE REMAINING ARBITRATION PROVISIONS SHALL BE ENFORCED (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION OR SIMILAR PROCEEDING);

(g) YOU AND 4PAY ACKNOWLEDGE AND AGREE THAT, BY AGREEING TO RESOLVE DISPUTES BETWEEN US THROUGH ARBITRATION, EACH OF US IS WAIVING THE RIGHT TO A TRIAL BY JURY; AND

(h) This Agreement evidences a transaction in interstate commerce. Accordingly, the Federal Arbitration Act governs the interpretation and enforcement of the arbitration provisions contained in this Agreement. The arbitration provisions of this Agreement shall survive termination of this Agreement. For purposes of this Agreement, the term “4PAY” includes its shareholders, officers, directors, employees, agents, representatives, contractors, and affiliates.

  1. Termination and Suspension

You may terminate this Agreement at any time for any reason or no reason by closing your 4PAY Digital Wallet account. If you wish to do so, contact 4PAY’s Customer Support Portal at 4PAY.CA or by telephone at 1-844-877-4PAY (4729). 4PAY may terminate this Agreement and close your 4PAY Digital Wallet account, or suspend your 4PAY Digital Wallet account, at any time for any reason or no reason upon notice to you. Extended inactivity may result in a suspension or termination of this Agreement and your License. If you or 4PAY terminate this Agreement, your License also is terminated and you must discontinue all use of 4PAY Digital Wallet. Upon termination, 4PAY may, but is not obligated to, delete your Personal Information and other information relating to you and your account. Federal or state law may require that 4PAY maintain information for a number of years for regulatory or law enforcement purposes. Rules of the Networks also may require record retention for extended periods.

  1. Survival After Termination

Upon termination of this Agreement by you or 4PAY, provisions of this Agreement that reasonably must remain in effect to enforce or to accomplish the intent of this Agreement shall survive termination. These surviving provisions include, without limitation, the provisions of this Agreement concerning collection and sharing of Personal Information (Section 4), representations and warranties (Section 5), intellectual property protection (Section 6), disclaimer of warranties (Section 10), limitation of liability and damages (Section 11), indemnification (Section 12), informal dispute resolution and arbitration (Sections 13 and 14), governing law, jurisdiction, and venue (Section 16), and the miscellaneous provisions contained in Section 18. Termination shall not affect any obligations that you may have to third parties, such as the obligation to pay for completed Mobile Payments. You shall not be entitled to any compensation, reimbursement, or damages in the event 4PAY terminates this Agreement or suspends your 4PAY Digital Wallet account, which it may do for any reason or no reason.

  1. Governing Law, Jurisdiction, and Venue

This Agreement is governed by the laws of the Canada and the Province of Ontario, without regard to Ontario’s conflict of laws rules. User consents to the exclusive jurisdiction of the federal and state courts in Toronto, Ontario, Canada, in the event of any legal proceeding relating to or arising from this Agreement or 4PAY Digital Wallet in connection with any matter that is not subject to binding arbitration as provided above in this Agreement. The preceding sentence shall not constitute a waiver of the parties’ agreement that, to the maximum extent permitted by law, all complaints and disputes between them shall be resolved by binding arbitration.

  1. Customer Support

If you need to communicate with 4PAY for any reason, such as for technical support, to resolve a Dispute, to close your 4PAY Digital Wallet account, or to opt-out of the sharing of Personal Information regarding which you have the right to opt-out, contact 4PAY’s Customer Support Portal at 4PAY.CA or by telephone at 1-844-877-4PAY (4729).

  1. Miscellaneous Provisions

This Agreement (including the Privacy Policy), as modified from time to time as provided in this Agreement, constitutes the entire agreement between User and 4PAY, and there are no oral or written agreements or understandings or representations and warranties between the parties except as expressly set forth in this Agreement. In the event of any conflict between the provisions of this Agreement (which includes the Privacy Policy) and any other 4PAY agreement or policy, the provisions of this Agreement shall control. No waiver of any provision of this Agreement shall constitute a continuing waiver or a waiver of any other provision of this Agreement. No provision of this Agreement is intended to be for the benefit of or enforceable by any third party. Except as provided in subsection (f) of Section 14 of this Agreement (which is entitled “Disputes and Binding Arbitration”), if any provision of this Agreement is for any reason declared invalid or unenforceable by reason of the laws of the Province of Ontario or Canada, the validity of any of the remaining provisions shall not be affected and such remaining provisions shall remain in full force and effect as if User and 4PAY had entered into this Agreement without the invalidated provision.