Effective Date: March 1, 2013
Last Updated Date: March 1,, 2013
I. Introduction and Eligibility
Binding Agreement. These Terms constitute a binding agreementbetween you ("you") and Expose Retail Strategies Inc. and itsaffiliates and subsidiaries ("Expose", "we","us"). By downloading the My Elaneapplication (the “My Elane Services”), you are agreeingto all of the Terms herein set out. Wereserve the right to amend, alter and or delete some or all of the Terms fromtime to time, without any prior notice or liability to your or any otherperson. Any such changes will be postedon Expose’s website. Your continued useof the My Elane services will constitute youragreement to be bound by the Terms, as amended
Users. My Elane isdesigned for use by persons who possess a valid driver’s licence and have acurrent credit card in their own name. You may use the My Elane application only ifyou have reached the age of majority where you live and can form legallybinding contracts and possess a credit card that has not expired. You may notuse the My Elane application if you live in ajurisdiction where access to or use of the My Elaneapplication or any part of it may be illegal or prohibited. It is solely yourresponsibility to determine whether your use of My Elaneis lawful, and you must comply with all applicable laws.
II. My Elane
My Elane isan application that will allow you to place an order for products and servicesfor pick-up at participating third party merchants (the “Merchants”) using asmart phone, tablet or other compatible mobile device (“My Elane”). Once placed, the order will automatically becharged to your credit card. My Elane willcontinually provide the selected merchant with an estimate of your arrival timefor pick-up of your order to ensure it will be ready when you arrive.
You agree to receive e-mail from us atthe e-mail address you provided to us for customer service related purposes.
By using the My Elane Service or providing personal information to us, youagree that we may communicate with you electronically regarding security,privacy and administrative issues relating to your use of the My Elane Service. If welearn of a security system’s breach, we may attempt to notify youelectronically by posting a notice on the My Elanewebsite or sending an e-mail to you.
V. Account Registration and How itWorks
Registration Process. Thefirst step to using the My Elane Service is to createa My Elane account (“Account”) by downloading the My Elane application and registering via the application. During the registration process we will askyou for your name, mobile phone number, date of birth, credit card informationand to create a PIN. You must provideaccurate and complete information in your registration application and aresolely responsible for the security and privacy of your PIN. We reserve the right to suspend or terminateyour My Elane Account if you provide inaccurate,untrue, or incomplete information, or fail to comply with the accountregistration requirements. You mustprovide accurate and complete information in response to our questions and also must keep the information that you provideup-to-date in the event of any changes.
Definition of Relationship and Authorization. As a merchant payment processor, My Elane processes payments you provide to Merchants. This means that we collect, analyze and relayinformation generated in connection with these payments. By accepting these Terms, you authorize us tohold, receive and disburse funds on your behalf. Your authorization permits us to generate apaper draft or an electronic funds transfer to process each payment transactionthat you authorize. Your authorizationwill remain in full force and effect until your Account is closed orterminated.
Term and Termination. These Terms are effective on the Effective Date. You may terminate these Terms at any time byuninstalling our mobile application and ceasing use of the My Elane Service. Allsections of these Terms will survive termination including without limitation,ownership, warranty disclaimers, limitations of liability and any obligationsto pay amounts accruing prior to the termination date.
My Elane’s Content. The contents of the My ElaneService include: designs, text,graphics, images, video, information, logos, button icons, software (includingmobile applications and hosted software services), audio files, computer codeand other My Elane content (collectively “My Elane Content”). AllMy Elane Content are the property of Expose and areprotected under copyright, trademark and other laws.
My Elane andall other related trademarks and design marks displayed on the My Elane application (collectively, the “Trademarks”) are registered and common law trademarks of Expose.Other trademarks and design marks appearing on the My Elaneapplication are trademarks of their respective owners. The trademarks of theMerchants are used under license.Nothing contained on My Elane should be construed asgranting, by implication or otherwise, any license or right to use anytrademarks, including the Trademarks, except with the express writtenpermission of Expose or the other party that may own the applicable trademarks.
My Elanemakes use of the following third party components:
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License to You. We authorize you, subject to these Terms, toaccess and use the My Elane Content solely for theuse of the My Elane Services at our discretion. In our sole discretion, in addition to anyother rights or remedies available to us and without any liability whatsoever,we, at any time and without notice, may terminate or restrict your access toany component of the My Elane Services or revoke thislicense. Unauthorized use of the My Elane Content mayviolate copyright, trademark and applicable communications regulations andstatutes and is strictly prohibited. Youmust preserve all copyright, trademarks, service marks and other proprietarynotices contained in the original My Elane Content onany copy you make of the My Elane Content. You acknowledge that the My Elane Content license granted herein confers no title orownership. It is not a sale of anyrights in the My Elane Content. My Elane retainsall intellectual property rights in the My Elaneapplication and the My Elane Content includingwithout limitation, all patent, copyright and trademark rights. All rights not expressly granted to you arereserved solely to Expose.
VI. User Content Disclaimers,Limitations and Prohibitions
We do not represent or guarantee the truthfulness, accuracy or reliabilityof content posted by other users and third parties, including Merchants. You accept that any reliance on materialposted by third parties or third party service providers will be at your ownrisk.
VII. Prohibited My ElaneService Uses
You agree to use the My Elane Service only for its intended purpose. You must use the My ElaneService in compliance with all privacy, data protection, intellectual propertyand other applicable laws. The followinguses of the My Elane Service are prohibited. You may not:
1. Aggregate, copy or duplicate any My ElaneContent;
2. Use data mining, robots or other datagathering devices on the My Elane Service;
3. Remove, disable, damage,circumvent or otherwise interfere with the security of the My Elane Service;
4. Interfere or attempt to interfere with theproper working of the My Elane Service;
5. Attempt to gain or gainunauthorized access to the My Elane Service orcomputers linked to the My Elane Service;
6. Attempt to reverse engineer, or reverseengineer the My Elane Service;
7. Frame or link to the My ElaneService without permission;
8. Attempt to or submit a virus to the My Elane Service;
9. Take any action imposing anunreasonable or disproportionately large loan on My Elane’sinfrastructure;
10. Attempt to or obtain unauthorized access toother users’ accounts;
11. Sell, transfer or assign any ofyour rights to use the My Elane Service to a thirdparty without our express written consent;
12. Use the My ElaneService in a manner that results in or may result in complaints, disputes,claims, fines, penalties and other liability to Expose or others;
13. Use of the My ElaneService in an illegal way or to commit an illegal act;
14. Access the My ElaneService from a jurisdiction where it is illegal, unauthorized or penalized;
15. Post any libelous, defamatory, obscene,pornographic, abusive or otherwise illegal material;
16. Use the My ElaneService to send spam, threats, profanity or hate speech, including any materialthat abuses or discriminates on the basis of race, religion, nationality,sexual preference, gender, age, etc;
17. Use the My ElaneService while driving; or
18. Use a false e-mail address,impersonate any person or entity, or otherwise mislead as to the origin of acredit card or other content.
VIII. User Name andPassword
Purchases on My Elane will be processed through your My Elaneaccount which may be accessed only by use of your login name and password. Youare solely responsible and liable for any use and misuse of your login name andpassword and for all activities that occur under your login name and password.For security reasons, you must keep your login name and password confidentialand not disclose them to any person or permit any other person to use them,except an authorized representative of Expose. We recommend that you choose apassword that is unique to you and not easily guessed by others. You shouldchange your password on a regular basis, and you must log out at the end of eachsession.
All login names and passwords remainthe property of Expose, and may be cancelled or suspended at any time by Exposewithout any notice or liability to you or any other person. Expose is not underany obligation to verify the actual identity or authority of the user of anylogin name or password.
You must immediately notify Expose ofany unauthorized use of your login name or password, or if you know or suspectthat your login name or password has been lost or stolen, has become known toany other person, or has been otherwise compromised.
IX. Payments and Billing
When you make a purchase through the MyElane Service it is a binding commitment to purchasethe products you selected. You agree topay the applicable charges for any orders you place through the My Elane Service. Our Merchants reserve the right to changethe amounts they charge for products at any time. All balances and all fees, charges andpayments collected or paid through the My ElaneService are denominated in Canadian dollars.
Refunds and Returns. We are solely a facilitator oftransactions. You acknowledge and agreethat in the event of any dispute over a payment, the merchant who provided theapplicable food and/or beverages is solely responsible for providing you withany refunds that you may be owed.
X. Consequences of Violating TheseTerms
We reserve the right to suspend orterminate your My Elane Account and prevent access tothe My Elane Service for any reason, at ourdiscretion. We reserve the right torefuse to provide the My Elane Service to you in thefuture. You agree to be responsible forany claims, fees, fines, penalties and other liability that may be incurred byus or others caused by or arising out of your breach of these Terms and youruse of the My Elane Service.
XI. Expose’s Liability
Changes to the My Elane Service. We may change, suspend or discontinue any aspect of the My Elane Service at any time, including hours of operation oravailability of the My Elane Service or any feature,without notice or liability.
Content Accuracy. We make no representations about accuracy,reliability, completeness or timeliness of any contents of the My Elane Service, including inventory availability at theMerchants premises. Merchants are underno obligation to make promotional prices available on My ElaneServices. Market conditions may cause prices to change without notice.Merchants may sell items for less than the prices on the site.
We rely on the information you provideto the My Elane Services, including accountinformation (name and e-mail address), payment information (credit card numbersand expiration dates), and transaction related information, which must be true,accurate, current and complete. You will be solely responsible and liable forany loss, damage and additional costs that you, we or any other person mayincur as a result of your submission of any false,incorrect or incomplete information or your failure to update your registrationinformation and payment information.
In addition, we make no representationsabout accuracy, reliability, completeness or timeliness of any data from thirdparty service providers or the quality or nature of third party productsobtained through the My Elane Service. Use of the My ElaneService is at your own risk.
We make no promises and disclaim allliability of specific results from the use of the My ElaneService.
DISCLAIMER OF WARRANTIES – READ THE FOLLOWING CAREFULLY
Released PartiesDefined. “Released Parties” includeExpose and its affiliates, officers, employees, agents, partners, licensors,third party licensors and Merchants.
YOU EXPRESSLY UNDERSTAND AND AGREETHAT: (A) YOUR USE OF THE MY ELANE SERVICEIS AT YOUR SOLE RISK AND THE MY ELANE SERVICE AND MY ELANE CONTENT ARE PROVIDEDON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLYDISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUTNOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY MERCHANTS ORRESULTS THAT MAY BE OBTAINED BY CONSUMERS THAT USE THE MY ELANE SERVICE,IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLEAND NON-INFRINGEMENT AND THOSE ARRISING BY STATUTE OR OTHERWISE IN LAW OR FROMA COURSE OF DEALING OR USAGE OF TRADE; (B) THE RELEASED PARTIES MAKE NOWARRANTY THAT (i) THE MY ELANE SERVICE OR MY ELANECONTENT WILL MEET YOUR REQUIREMENTS, (ii) THE MY ELANE SERVICE WILL BEUNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BEOBTAINED FROM THE USE OF THE MY ELANE SERVICE WILL BE ACCURATE OR RELIABLE,(iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL YOUOBTAINED THROUGH THE MY ELANE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANYERRORS IN THE MY ELANE SERVICE OR MY ELANE CONTENT WILL BE CORRECTED; AND (C)ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MY ELANESERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELYRESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OFDATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FORANY (i) ERRORS, MISTAKES OR INACCURACIES OF CONTENT;(ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTINGFROM YOUR ACCESS TO OR USE OF THE MY ELANE SERVICE; (iii) ANY UNAUTHORIZEDACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATIONSTORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROMTHE SERVICE; (v) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BETRANSMITTED TO OR THROUGH THE MY ELANE SERVICE BY ANY THIRD PARTY; (vi) ANYERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS ARESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISEMADE AVAILABLE THROUGH THE MY ELANE SERVICE; (vii) USER CONTENT OR THEDEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (viii)LATE, LOST, INELIGIBLE, MISDIRECTED OR STOLEN MESSAGES, UNAVAILABLE NETWORKCONNECTIONS, FAILED INCOMPLETE, GARBLED OR DELAYED COMPUTER TRANSMISSIONS,TECHNICAL MALFUNCTIONS OR DISTURBANCES OR ANY OTHER COMMUNICATION FAILURES ORCIRCUMSTANCES AFFECTING, DISRUPTING OR CORRUPTING COMMUNICATIONS.
YOU ASSUME TOTAL RESPONSIBILITY ANDRISK FOR YOUR USE OF THE MY ELANE SERVICE, MY ELANE CONTENT, ALL SITE-RELATEDSERVICES AND THIRD PARTY WEBSITES. NOORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EXPOSE OR ITS AUTHORIZEDREPRESENTATIVES SHALL CREATE A WARRANTY OF ANY KIND. ANY REFERENCES TO SPECIFIC PRODUCTS ORSERVICES ON EXPOSE WEBSITES DO NOT CONSTITUTE OR IMPLY A RECOMMENDATION ORENDORSEMENT BY EXPOSE UNLESS SPECIFICALLY STATED OTHERWISE.
OUR MAXIMUM LIABILITY ARISING OUT OF ORIN CONNECTION WITH THE MY ELANE SERVICE OR YOUR USE OF THE MY ELANE CONTENT,REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OFWARRANTY OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (i)THE AMOUNT, YOU PAID (IF ANY) TO USE THE MY ELANE SERVICE; OR (ii) $100.00.
You agree to defend, indemnify and holdharmless the Released Parties from and against any claims, actions or demand,including without limitation, reasonable legal and accounting fees, arising outof or resulting from (i) your use of the My Elane Service; (ii) your use of or reliance on the My Elane Content; (iii) your breach of any of these Terms; or(iv) your violation of any rights of a third party.
Expose enables My Elaneusers to provide Expose with feedback by email or otherwise (“Customer Content”). If you provideCustomer Content you grant Expose a non-exclusive, royalty-free, perpetual,irrevocable, and fully sublicensable right to use,delete, reproduce, modify, adapt, publish, translate, create derivative worksfrom, distribute, and display that Customer Content throughout the world in anymedia, now known or later developed, for any purpose whatsoever, commercial orotherwise, without providing compensation to you or any other person, withoutany liability whatsoever, and free from any obligation of confidence, and youwaive any and all moral rights in the Customer Content. You also grant Expose the right to use the name you submit with theCustomer Content, if any, in connection with Expose’s rights set out in thissection.
xiii. General Terms
These Terms constitute the entireagreement between you and Expose concerning your use of the My Elane Service. Ourfailure to exercise or enforce any right or provision of these Terms shall notconstitute a waiver of such right or provision. If any provision of these Terms is found by a court of competentjurisdiction to be invalid the parties nevertheless agree that the court shouldendeavour to give effect to the parties’ intentions as reflected in theprovision and the other provisions of these Terms shall remain in full forceand effect. These Terms and any rightsand licenses granted hereunder may not be transferred or assigned by you butmay be assigned by Expose without restriction. The section titles in these Terms are for convenience only and have nolegal or contractual effect.
These Terms and the relationshipbetween you and Expose shall be governed by the laws of the Province of Ontarioand the Federal laws of Canada applicable therein. You and Expose agree to submit to theexclusive jurisdiction of the courts of the Province of Ontario any disputesrelating to your use of the My Elane Service.