TERMS OF SERVICE
Last Updated: September 7, 2021
Welcome to Moola (the “Moola App”), an app operated by MOOLA INC. (“Moola”, “we”, “our”). Moola, the Moola App, and related functions and services are provided to Moola’s registered users (“Members”, “you”, “your”), subject to compliance with the following Terms of Service, as updated from time to time without notice to you (“Terms” or “Agreement”).
Listed Merchants who sell their gift cards through the Moola App are also bound to the Terms.
Please read through these Terms carefully. Your use or continued use of the Moola App will indicate your agreement to these Terms. If you do not agree to be bound by the Terms, you may not use the Moola App, and you should delete it from your device now.
For the purposes of these Terms:
- “Account” means a Member Account or a Business Member Account, as applicable;
- “Business Member” is the owner of a registered Business Member Account;
- “Business Member Account” has the meaning in section 3.1;
- “Cards” means, with respect to any Merchant, gift cards or loyalty cards issued by such Merchant, and “Card” means any one of them;
- “Codes” has the meaning in section 2.2(d);
- “Listed Merchant” means a merchant who has entered into an agreement with Moola to make its Cards available for purchase by Members on the Moola Marketplace;
- “Marketplace for Business Members Program” Moola+ means the program offered by Moola whereby Business Members can purchase multiple Cards for distribution to multiple Recipients, as further described in section 2.1(d);
- “Member” is the owner of a registered Account as set out in section 3.2 and includes a Business Member;
- “Member Account” has the meaning in section 3.1;
- “Moola Marketplace” means the online store on the Moola App where Members can purchase Cards issued by Listed Merchants;
- “Merchants” means the Listed Merchants and non-Listed Merchants, and “Merchant” means any one of them;
- “non-Listed Merchants” means a merchant who is not a Listed Merchant;
- “Purchased Cards” means a Card purchased by a Member through the Moola Marketplace;
- “Recipients” has the meaning in section 2.2(d); and
- “Services” means the services described in section 2, along with any other future services that Moola designs for the Moola App
2.1 Primary Services
a) Storing Cards
The Moola App allows you to enter and store your Cards issued from Merchant stores. You can do this by either selecting a Merchant from our pre-existing list of Listed Merchants or by using your camera phone to upload a photo and enter the barcode of a Card that is issued from non-Listed Merchants. For each Card that you enter or store on the Moola App, you represent and warrant the following:
- the Card is a valid gift card or loyalty card of the Merchant named on such Card;
- you are the sole lawful owner or licensee of the Card and all interests thereto; and
- you did not purchase the Card from an unknown individual or entity (i.e. by using Craigslist, Kijiji, or a similar unverifiable platform).
b) Redeeming Cards
c) Purchasing Cards
You can purchase Cards issued by Listed Merchants from the Moola Marketplace. You acknowledge and agree that you must pay for each Purchased Card with a valid credit card (that you are authorized to use) or by other methods as Moola may allow.
If Moola permits and you choose to purchase gift cards with cryptocurrency, then you must comply with all terms and conditions of any third-party cryptocurrency payment processor used by Moola, and you assume all risks and liabilities associated with payment by All purchases of a Purchased Card by you through the Marketplace are made on a without recourse basis against Moola. Moola is not the issuer of the Purchased Card and assumes no liability for the Purchased Card. All transactions are final. There are no refunds or exchanges. If you do not receive your Purchased Card within 24 hours, you should immediately contact Moola with your reference number.
d) Marketplace for Business Members Program: Purchasing Cards for Recipients
Moola+ Business Members may purchase Cards for multiple recipients selected by the Business Member (“Recipients”) by choosing the number and value of participating Merchant Cards and providing Moola the names and email addresses of the intended Recipients of such Cards. Moola will email codes (“Codes”) to Recipients to claim that Purchased Cards through the Moola App. When entering Recipients through the Moola App, Business Members must provide complete and accurate information.
Recipients must register an account in order to claim their Purchased Cards. Recipients will only be able to access the Moola App if they are located in Canada, and may not be able to redeem their Purchased Cards except in Listed Merchant stores located in Canada. Moola will not be liable for any failure or inability of Recipients to receive the Codes or claim or redeem Purchased Cards, or for any issues whatsoever arising from the distribution of the Codes to Recipients.
2.2 Supplemental Services
In connection with the services described in section 2.1, and subject to the permissions you give us, we may design the Moola App to provide you with additional supplemental services, such as the contact information and locations of Listed Merchants.
2.3 Services Subject to Change
All aspects of the Services are subject to change or elimination at Moola’s sole discretion. Moola reserves the right to interrupt the Services with or without prior notice for any reason or for no reason. You agree that Moola will not be liable to you for any interruption of the Services, delay, or failure to perform.
2.4 License to Use the Services
Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable, license to use the Moola App and the Services for your personal, non-commercial use only. Moola reserves all rights to the Moola App, the Services, and the Moola Content (defined in section 6) not expressly granted herein. Moola may terminate this license at any time for any reason or for no reason.
You may register for a single account (a “Member Account”) if you are an individual over the age of majority in the jurisdiction in which you reside. You may also register for a single account on behalf of a company in good standing (a “Business Member Account”), provided that you have the authority to enter into contracts on behalf of such company, and Moola has, in its sole discretion, approved the registration of such company for a Business Member Account. By registering for an Account, you are representing that you have the legal right and capacity to enter into and be bound by this Agreement.
You are also promising to comply with these Terms and all applicable local, provincial, state, national, and international laws, rules, and regulations for so long as you maintain your Account and use the Services.
a) To access the Services, you will need to register an account and become a “Member”. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your Account, and you must keep your password and PIN (if applicable) secure. You may control your Member profile and how you interact with the Services by changing the settings in the Moola App. In your settings, you may choose to access the Moola App through your fingerprint instead of a PIN. By enabling Touch ID, every person with an enrolled fingerprint on your device will have access to your Account. Fingerprints are only stored on your device and we do not see or store your fingerprint information during the authentication process. By providing Moola with your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. You may never use another Member’s account without permission or create more than one account. Moola will not be liable for any losses caused by any unauthorized use of your Account by you or anyone else. You are responsible for safeguarding your mobile device and for all transfers and/or transactions, including those performed with Touch ID. If you think someone has gained access to your Account, please contact us immediately at firstname.lastname@example.org.
b) You agree that you will not:
- create another account if we’ve disabled your Account;
- buy, sell, transfer, rent lease or allow access to your Account without our prior written consent; or
- log in or try to log in to access your Account or the Services through unauthorized third-party applications
3.3 Termination or Suspension of Accounts
Moola may permanently or temporarily terminate or suspend your Account or otherwise refuse to permit your access to the Moola App or Services without notice or liability for any reason, including if in Moola’s sole determination, you violate any provision of this Agreement, or for no reason.
3.4 Collection of Personal Information
3.5 Data Charges
You are responsible for any mobile charges that you may incur when you use the Services including data charges for use of the Services and/or updates or upgrades of new versions of the Services.
4. UNAUTHORIZED USE OF THE MOOLA APP
4.1. You agree not to engage in any of the following prohibited activities:
- copying any part of the Moola App or the Services in any medium;
- attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Moola App or the Services;
- taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- uploading invalid data, viruses, worms, or other software agents to or through the Moola App;
- collecting or harvesting any personally identifiable information, including account names, from the Moola App;
- using the Moola App or the Services for any commercial solicitation purposes;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- interfering with the proper working of the Moola App or the Services;
- accessing any content on the Moola App or Services through any technology or means other than those provided or authorized by the Moola App;
- bypassing the measures we may use to prevent or restrict access to the Moola App or the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Moola App or the Services or the content therein; or
- encouraging or promoting any activity that violates these Terms.
4.2. You agree that your use of the Moola App and Services will comply with all applicable laws and governmental regulations, including but not limited to any applicable consumer protection laws and data protection or privacy laws.
5. MOOLA PROPRIETARY RIGHTS
As between you and Moola, Moola owns or is an authorized licensee of all of the content on the Moola App (the “Moola Content”), including but not limited to visual interfaces, interactive features, graphics, design, compilation (including, but not limited to, our compilation of Submitted Data (defined below), software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and other content, and all other elements of the Moola App (including Merchant trademarks that are licensed to Moola in connection with the Services).
All intellectual property rights related to the Moola Content (the “Intellectual Property Rights”) are the exclusive property of Moola or the applicable licensor. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Moola App or through the Services. Use of the Moola Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
The display of Merchant trademarks within the Moola App is for the sole purpose of helping you to sort and identify and redeem your Cards; no implied licenses are granted.
6. SUBMITTED DATA
6.1 Copyright Policy, Representation
You are wholly responsible for any data you transmit to the Moola App (“Submitted Data”), whether such data consists of pictures, artwork, text, or other data types, such as audio, video, or multimedia. It is unlawful to reproduce or distribute copyrighted material without the permission of the copyright owner or to use trademarks without the permission of the trademark owner. You are responsible for assuring that no Submitted Data you transmit to a site violates any copyright or trademark right and that it complies with these Terms. Before transmitting Submitted Data to the Moola App, you should assure that such Submitted Data is in the public domain and therefore not subject to copyright protection, or that you have the consent of the copyright or trademark owner to use the material. By uploading Submitted Data to the Moola App and/or by submitting Submitted Data for integration into any Cards for processing, sharing, storage, or fulfillment: (i) you grant us a limited, royalty-free, and non-exclusive license to use, adapt, transmit, transfer, store, copy and display the Submitted Data solely in connection with our providing products and/or services to you; and (ii) you represent and warrant to us that the Submitted Data is in the public domain; or that you have all right, title and interest in and to all copyrights in the Submitted Data, or that you have the express permission to copy and use such Submitted Data for all purposes related to the Cards you store on the Moola App. You further represent that the Submitted Data do not violate or infringe upon the proprietary rights (including privacy, moral or publicity rights) of others.
6.2 Inappropriate Content
You may not upload to a site any material, whether text, images, or otherwise, that (i) infringes any copyright, trademark, right of privacy, right of publicity, or any other right of a third party, including without limitation, images of celebrities, actors, musicians, sports figures, politicians, cartoon characters or public figures of any kind; (ii) is unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or offensive to the community or to any reasonable segment thereof, or (iii) phone numbers, addresses, account numbers, personalized identification numbers or URL addresses (collectively, “Inappropriate Content”).
The content of the Submitted Data you submit is governed by applicable laws (including laws that prohibit infringement of copyrights and trademarks, obscenity, pornography, child pornography, or child abuse). We have no obligation to monitor the Submitted Data. However, we reserve the right at all times to review the Submitted Data, to disclose the Submitted Data as necessary to satisfy any laws, regulations, or government requests, and to report any potential violations of law to law enforcement authorities, to refuse to post or transmit the Submitted Data, to remove the Submitted Data, and to refuse to perform any orders for processing or fulfillment for Submitted Data that are, in our sole judgment and discretion, (or in the sole judgment and discretion of any of the entities described above), objectionable or in violation of these Terms.
In the event that you submit Submitted Data to a site for inclusion on a Card and the Merchant issuing the Card believes the Card contains Inappropriate Content, the Merchant may reserve the right to refuse to honor the Card. Moola reserves the right to determine, at its sole discretion, whether Submitted Data will be accepted for incorporation into the Moola App. If Moola does not approve the Submitted Data, we may delete such Submitted Data with or without notice to you.
6.3 Indemnification for Submitted Data
You agree to indemnify us and hold us and our licensees, suppliers, and fulfillers, owners, and operators of third-party portals and Merchants, harmless from and against any and all losses, damages, costs, or expenses, including reasonable attorneys’ fees, arising out of:
- any claim by a third party that the Submitted Data (or the use thereof) constitutes an infringement or other violation of such third party’s trademark, copyright, intellectual property rights, or other rights; or
- your use of any Inappropriate Content; or
- any violation of law by you; or
- any acts prohibited under this section on Submitted Data. Your obligation to indemnify and hold us harmless shall survive any expiration and termination of these Terms.
6.4 No Liability for Lost Data
In the event that you lose your device, Moola does not guarantee that all of the data presents on your device prior to its loss will be synced onto your new device, and Moola will not be liable for any discrepancy or loss of data resulting from the loss of your device.
7. THIRD PARTY LINKS
Additionally, your dealings with or participation in promotions of advertisers found on the Moola App, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Moola shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless Moola and its subsidiaries, agents, licensors, managers, and other affiliated or related companies, and their employees, contractors, agents, officers, and directors (the “Moola Group”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from:
- your use of and access to the Moola App and the Services, including any data or content transmitted or received by you;
- your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
- your violation of any third-party right, including without limitation any right of privacy, publicity rights, or Intellectual Property Rights;
- your violation of any law, rule, or regulation of Canada or any other country;
- any claim or damages that arise as a result of any data or content that is submitted via your Account; or
- any other party’s access and use of the Moola App or Services through your Account.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MOOLA GROUP, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE MOOLA APP OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL MOOLA BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOOLA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF ANY CONTENT ON THE MOOLA APP, INCLUDING ANY BAR CODE INFORMATION, DISPLAYED BALANCES, OR INCORRECT INFORMATION ABOUT ANY MERCHANT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE MOOLA APP OR THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) DAMAGES OR LIABILITY RESULTING FROM YOUR ACCOUNT INFORMATION; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MOOLA APP OR THE SERVICES; (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE MOOLA APP OR THE SERVICES BY ANY THIRD PARTY; (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE MOOLA APP OR THE SERVICES; (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; (IX) LOST, STOLEN, OR OTHERWISE IRREDEEMABLE CARD; AND/OR (X) ANY TRANSACTIONS BETWEEN YOU AND A MERCHANT, OR BETWEEN YOU AND ANOTHER THIRD PARTY WITH RESPECT TO ANY CARD STORED ON YOUR ACCOUNT. IN NO EVENT SHALL MOOLA GROUP BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF YOUR GIFT CARD TRANSACTIONS WITH MOOLA FOR THE TWENTY-ONE (21) DAYS PRECEDING THE DATE ON WHICH SUCH LIABILITY AROSE.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MOOLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Services are appropriate or available for use in any location where the use of the Services is in compliance with all applicable local laws and regulations, including but not limited to export and import regulations. Moola shall not be liable for any use of the Services in violation of local laws or regulations.
10. TERMS APPLICABLE TO LISTED MERCHANTS
10.1 Merchant Agreement
Each Listed Merchant must enter into a written agreement (a “Merchant Agreement”) with Moola for the purchase and resale of the Listed Merchant’s Cards on the Moola App. Unless otherwise agreed in the Merchant Agreement, the Terms of Service, including this section 10, shall form an integral part of the Merchant Agreement.
10.2 Resale, Gifting, and Distribution
Each Listed Merchant grants Moola a personal, non-exclusive, and non-transferable right to
- resell the Listed Merchant’s Cards to the Members through the Moola App at any price (the “Resale Price”), provided that the Resale Price for any given Listed Merchant’s Card shall not exceed the actual value stored on such Merchant Gift Card;
- gift the Listed Merchant’s Cards to the Members at any time;
- develop and run promotional campaigns for the sale of the Listed Merchant’s Cards to Members; and
- distribute Codes and Cards to Recipients in connection with Moola+, unless the Merchant has specifically opted not to participate in such program. Except for any required payments explicitly set forth in the Merchant Agreement, Moola shall be solely entitled to the entire proceeds of the sales of the Listed Merchant’s Cards to its Members, with no obligation whatsoever to remit any of such proceeds to the Listed Merchant. Upon termination of the Merchant Agreement, Moola’s rights under this section 2 shall continue to survive until Moola has sold, gifted, or distributed all of the Cards purchased by Moola pursuant to the Merchant Agreement prior to termination.
10.3 Merchant-Funded Promotions
The Listed Merchant may offer a discount on the sale of its Cards through the Moola App (such offer, a “Merchant-Funded Promotion”), provided that the Listed Merchant shall be entirely responsible for the costs of such Merchant-Funded Promotion and shall make Moola whole.
Each Listed Merchant is solely responsible for preparing the terms and conditions applicable to its Cards, delivering such terms and conditions to Moola, and for any changes or amendments to, or disputes arising out of, such terms and conditions. Moola will present the Listed Merchant’s then-current terms and conditions for the purchase and redemption of Listed Merchant’s Cards on the Moola App at the point of resale.
Each Listed Merchant is responsible for ensuring that such terms and conditions comply with all laws and regulations applicable to its Listed Merchant’s Cards. Each Listed Merchant is responsible for ensuring that any recipients of its Cards comply with the terms and conditions applicable to such Cards, and Moola shall not be liable for a recipient’s non-compliance with the terms and conditions applicable to a Listed Merchant’s Cards.
10.5 Delivery of Cards.
All Cards purchased by Moola from the Listed Merchant shall be electronically delivered by the Listed Merchant in the manner, quantity and amounts agreed to by the Listed Merchant and Moola, and the Listed Merchant explicitly authorizes Moola to digitize such Cards as required for electronic resale through the Moola App. If the Listed Merchant elects to transmit electronic data, including Confidential Information (as defined in section 6) to Moola for the purposes of this Agreement (the “Transfer”), the Transfer must be done using a secure medium as directed by Moola.
10.6 Intellectual Property.
a) For the purposes of this section 10.6:
- “Intellectual Property” means all material (A) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereto and patents, patent applications and patent disclosures, together with reissuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof, (B) Marks, (C) copyrightable works, copyrights and applications, registrations and renewals in connection therewith, (D) trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, source codes, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals), (E) computer or application software (including data and related documentation), (F) other proprietary rights, (G) rights as a licensee or authorized user of the intellectual property of any third party and (H) copies and tangible embodiments thereof (in whatever form or medium), owned or created by Moola or the Listed Merchant, as applicable, prior to or at any point during the term of the Merchant Agreement; and
- “Marks” means trademarks, service marks, trade dress, logos, trade names, and corporate names (whether or not registered), together with translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith and applications, registrations, and renewals in connection therewith
b) License from Listed Merchant: Each Listed Merchant hereby grants to Moola a personal, non-transferable, non-exclusive, limited license to use and display the Listed Merchant’s Marks on the Moola App for the purposes of:
- communicating the partnership between Moola and the Listed Merchant;
- advertising the Moola App and Services;
- promoting and selling the Merchant Gift Cards to Members; and
- allowing Members to view and sort Merchant Gift Cards through the Services.
c) License from Moola. Moola hereby grants to each Listed Merchant a personal, non-transferable, non-exclusive license to use and display Moola’s Marks in the Listed Merchant’s stores, website, social media accounts, and other locations as mutually agreed for the purposes of (i) communicating the partnership between Moola and the Listed Merchant; and (ii) advertising the Moola App and Services.
d) Terms of License. Each Listed Merchant hereby represents to Moola, and Moola hereby represents to each Listed Merchant, that it has the necessary rights and authority to grant the licenses described in sections 6(b) and 10.6(c), respectively. Such licenses are strictly limited to their specific terms and for the specific purposes provided above and no license is granted for any other purposes. Each party agrees that: (i) use of the other party’s Marks will not confer any proprietary right thereto in any manner; and (ii) all goodwill established thereby will enure to the sole benefit of the Owner of the Marks.
e) Moola IP. The Intellectual Property owned or created by Moola is the exclusive property of Moola and/or its licensors. All rights, title, and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to Moola’s Intellectual Property and Marks are reserved for the sole benefit of Moola. Except as explicitly set forth in this Agreement, no rights or licenses to Moola’s Intellectual Property are transferred or assigned to any Listed Merchant by way of the Agreement, and no Listed Merchant has any interest in or to Moola’s Intellectual Property. To the extent that a Listed Merchant receives or is in possession of any of Moola’s Intellectual Property, then except as explicitly set forth in this Agreement, the Listed Merchant shall not make any alteration, change, or modification to any of such Intellectual Property, nor shall the Listed Merchant recompile, decompile, disassemble, or make or distribute any other form of, or any derivative work from Moola’s Intellectual Property.
f) Merchant IP. The Intellectual Property owned or created by a Listed Merchant is the exclusive property of such Listed Merchant and/or its licensors. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to a Listed Merchant’s Intellectual Property and Marks are reserved for the sole benefit of such Listed Merchant. Except as explicitly set forth in this Agreement, no rights or licenses to a Listed Merchant’s Intellectual Property is transferred or assigned to Moola by way of the Agreement, and Moola does not have any interest in or to such Listed Merchant’s Intellectual Property. To the extent that Moola receives or is in possession of any Listed Merchant’s Intellectual Property, then except as explicitly set forth in this Agreement, Moola shall not make any alteration, change or modification to any of such Intellectual Property, nor shall Moola recompile, decompile, disassemble, or make or distribute any other form of, or any derivative work from the Listed Merchant’s Intellectual Property.
10.7 Confidential Information.
a) Definition. For the purposes of this section 7, “Confidential Information” shall mean: all information of a confidential or proprietary nature, including any information about an identifiable individual collected, used, disclosed, or processed in connection with the Services, provided by either Moola or a Listed Merchant (in each case, the “Disclosing Party”) to the other (the “Receiving Party”) for use in connection with the Merchant Agreement and the Services, but does not include
- information that is already known by the Receiving Party,
- information that becomes generally available to the public other than as a result of disclosure by the Receiving Party in violation of this Agreement, and
- information that becomes known to the Receiving Party from a source other than the Disclosing Party on a non-confidential basis. Confidential Information also includes the Disclosing Party’s trade secrets, processes, proprietary data, source code, information or documentation related thereto, or any pricing or product information furnished to a Listed Merchant by Moola.
b) Confidentiality. All Confidential Information disclosed hereunder by either the Disclosing Party to the Receiving Party shall remain the exclusive and confidential property of the Disclosing Party. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party and shall use at least the same degree of care, discretion, and diligence in protecting the Confidential Information of the Disclosing Party as it uses with respect to its own Confidential Information, and in any event, no less than a reasonable standard of care, or in the event that any Confidential Information is protected by law or statute, then in compliance with such laws or statutes. The Receiving Party may disclose Confidential Information to the extent necessary to:
- comply with any law, rule, regulation, or ruling applicable to it;
- fulfill its obligations under this Agreement and,
- if with respect to Confidential Information received by Moola, to the extent necessary for the provision of the Services to its Members. Upon the request of the Disclosing Party, the Receiving Party shall, to the extent reasonably possible, return or destroy all Confidential Information of the Disclosing Party that is in its possession and any information not so returned or destroyed shall remain subject to the confidentiality obligation herein. The Receiving Party may disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body or otherwise, provided that the Receiving Party:
- provides prompt written notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or another appropriate remedy;
- takes such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and
- in any event, makes such disclosure only to the extent so required.
c) Return or Destruction. Except as set out below, the Receiving Party shall, upon request by the Disclosing Party at any time or, in any event, upon the termination of this Agreement, return or destroy as per the requesting Disclosing Party’s requirements all of the Disclosing Party’s Confidential Information, and all copies, summaries, extracts and other materials associated with this Agreement within ten (10) business days of a request. Any return of the information, copies, summaries, extracts, and other materials associated with this Agreement shall be returned as directed by the Disclosing Party, or alternatively destroyed by the Receiving Party. The Receiving Party will confirm to the other in writing the completion of the return or destruction of all information which it is required to return or destroy under this section, as the case may be, and its removal from its computers and networks. Notwithstanding the foregoing, the Receiving Party shall not be required to delete information that may be stored in its electronic back-up and data archival systems, provided that such information is not used by the Receiving Party for any purpose. Furthermore, the Receiving Party shall not be required to return or destroy information which, in the opinion of its legal counsel, it is required to maintain under applicable law.
10.8 Compliance with Laws
Each Listed Merchant is responsible for its own compliance with all laws and governmental regulations affecting its business, including but not limited to any applicable anti-money laundering laws, consumer protection laws, and data protection or privacy laws.
The Listed Merchant represents and warrants that:
- that it will comply with applicable consumer protection laws and data protection laws and regulations including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada); and
- its internal policies are in compliance with the Canadian Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Moola shall maintain adequate security with respect to its facilities, employees, representatives, contractors, third parties, and other matters relating to this Agreement. Moola shall take reasonable precautions, including the implementation of appropriate security and access controls to minimize the possibility that no unauthorized persons are able to access the other Party’s Confidential Information, while in its possession.
Each Listed Merchant severally represents and warrants to Moola and acknowledges that Moola is relying on such representations and warranties:
- Existence and Good Standing. The Listed Merchant is a corporation duly and validly incorporated, organized, and existing under the laws of its jurisdiction of incorporation and has the legal capacity and right thereunder to carry on its business and to own its assets and has the right to carry on its business and to own its assets in each other jurisdiction in which it carries on business or where any of its assets are located.
- Authority. The Listed Merchant has the legal capacity and authority to enter into the Merchant Agreement and do all acts and things and execute and deliver all agreements, documents, and instruments as are required thereunder to be done, observed, or performed by it in accordance with the terms and conditions thereof, and to grant to Moola the rights granted therein.
- Solvency. The Listed Merchant is not insolvent, has not been adjudged a bankrupt, has not made a general assignment for the benefit of creditors, has not taken the benefit of any law in force for insolvent persons, or no receiver or manager has been appointed for the Listed Merchant’s business.
As between Moola and each Listed Merchant individually (as applicable, the “Indemnifying Party”) the Indemnifying Party shall indemnify and save harmless the other party and its directors, officers and shareholders, past, present and future (collectively, the “Indemnified Parties”) from and against any and all expenses, losses, damages or liabilities as and when incurred, including, without limitation, penalties, interest and reasonable legal fees (on a solicitor and own client basis) and expenses relating to all claims, debts, demands, suits, actions and causes of action whatsoever which may be brought or made against the Indemnified Parties or any one of them by any person, government department or agency, as well as all losses, costs, damages, expenses and liabilities, all direct and actual damages resulting from the criminal or fraudulent action, or intentional misconduct of Indemnifying Party’s entities and its employees, which may be suffered or incurred by the Indemnified Parties or any one of them arising out of:
- the Indemnifying Party’s breach of the Merchant Agreement;
- the Indemnifying Party’s negligence; or
- the Indemnifying Party’s infringement of the other party’s intellectual property rights.
10.13 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MOOLA NOR A LISTED MERCHANT SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CLAIMS FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, BUSINESS INTERRUPTION, EXEMPLARY OR INDIRECT DAMAGES, OR LOST PROFITS ARISING FROM THIS AGREEMENT, WHETHER UNDER STATUTE, IN TORT, CONTRACT OR OTHERWISE. THE FOREGOING LIMITATION WILL NOT APPLY TO LIMIT ANY PARTY’S LIABILITY WITH RESPECT TO
(A) ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OF THESE TERMS,
(B) GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT, AND
(C) CRIMINAL ACTS. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOOLA OR A LISTED MERCHANT FOR ANY CLAIM ARISING OUT OF OR IN ANY WAY CONNECTION TO THE APPLICABLE MERCHANT AGREEMENT OR THE FULFILMENT OR INTENDED FULFILMENT OF ANY OF THE OBLIGATIONS UNDER SUCH MERCHANT AGREEMENT EXCEED THE AMOUNT PAID BY MOOLA TO THE LISTED MERCHANT PURSUANT TO SUCH MERCHANT AGREEMENT OVER THE PREVIOUS SIX (6) MONTHS FROM THE DATE OF SUCH CLAIM.
For the purposes of the section this section 11, unless otherwise specified, any reference to a “party” or to “you” shall refer to each Member and to each Listed Merchant, severally.
11.2 Governing Law
This Agreement shall be construed and governed exclusively by the laws in force in British Columbia and the laws of Canada applicable therein, and the courts of British Columbia (and the Supreme Court of Canada, if necessary), and except as set out below in “Resolution of Disputes”, shall have exclusive jurisdiction to hear and determine all disputes arising hereunder. Except as provided in Section 9 b. “Resolution of Disputes”, each of the parties hereto irrevocably attorns to the jurisdiction of said courts, consent to the commencement of proceedings in such courts, and waive any right to a jury trial. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any forum non conveniens defense to the maintenance of such action or proceeding in any such court. This provision shall not be construed to affect the rights of a party to this Agreement to enforce a judgment or award outside said province, including the right to record and enforce a judgment or award in any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.3 Resolution of Disputes
a) Limitation period. YOU AND MOOLA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
b) Mandatory Arbitration. The decision of the Arbitrator on all issues or matters submitted to the Arbitrator for resolution shall be conclusive, final, and binding on all of the parties hereto. The arbitrator shall be appointed by agreement between the parties, or in default of agreement, the arbitrator shall be appointed by a judge of the Supreme Court of British Columbia, upon the application of any party to this Agreement. The Arbitrator shall determine who shall bear the costs of arbitration pursuant to this section. The place of the arbitration shall be in Vancouver, British Columbia.
c) Class Action Waiver. THE ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
d) Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to a court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Upon the termination of this Agreement for whatever reason, and by either party, the following provisions shall continue in force: definitions; proprietary rights; submitted data; indemnity; limitation of liability; and general. In addition, as between each Listed Merchant and Moola, the following provisions in section 10 shall continue in force: intellectual Property; confidentiality; indemnity; and limitation of liability.
11.5 Notification Procedures
If we need to contact you about these Terms, you:
- agree to receive electronic messages from us; and
- agree that all terms and conditions, agreements, notices, disclosures, and other messages we send to you electronically satisfy all legal requirements as if they were in writing.
11.6 Changes to Terms
We may make changes to these Terms, including when there are changes to our Services, technology, or any law or regulation to which we are subject and/or for any other reason. If we do, we will provide you with notice of such changes by posting the updated Terms on our website and changing the “Last Updated” date above.
With respect to any Member, any amended Terms will become effective immediately. our continued use of our Services following the effective date of such changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you must discontinue using our Services.
With respect to any Listed Merchant, any changes to section 10 will become effective 14 days after they are posted and will apply prospectively to the Services after such changes become effective, except that any changes addressing new functions of our Services or changes made for legal reasons will come into effect immediately. A Listed Merchant shall have 14 days after delivery of notice to raise any objection to such changes by delivering notice email@example.com.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by Moola without restriction. With respect to a Listed Merchant, merger or consolidation of the Listed Merchant into, or the sale of all or substantially all of the assets of the Listed Merchant to, a third party shall be deemed to be an assignment.
11.8 Entire Agreement/Severability
11.9 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Moola’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
11.11 Changes to Terms
We may change this Agreement without notice to you and this will be reflected by the “Last Updated” date above. Please revisit this page to stay aware of any changes. Your continued use of the Services constitutes your agreement to the Terms and any amendments.
If you have any questions, comments, complaints, or suggestions, please contact Moola at firstname.lastname@example.org.
Our address is Moola Inc.
Unit 777 – 838 Hastings St W
Vancouver, BC Canada