Effective Date: March 1, 2013
Last Updated Date: March 1,, 2013
I. Introduction and Eligibility
Binding Agreement. These Terms constitute a binding agreement between you ("you") and Expose Retail Strategies Inc. and its affiliates and subsidiaries ("Expose", "we", "us"). By downloading the My Elane application (the “My Elane Services”), you are agreeing to all of the Terms herein set out. We reserve the right to amend, alter and or delete some or all of the Terms from time to time, without any prior notice or liability to your or any other person. Any such changes will be posted on Expose’s website. Your continued use of the My Elane services will constitute your agreement to be bound by the Terms, as amended
Users. My Elane is designed for use by persons who possess a valid driver’s licence and have a current credit card in their own name. You may use the My Elane application only if you have reached the age of majority where you live and can form legally binding contracts and possess a credit card that has not expired. You may not use the My Elane application if you live in a jurisdiction where access to or use of the My Elane application or any part of it may be illegal or prohibited. It is solely your responsibility to determine whether your use of My Elane is lawful, and you must comply with all applicable laws.
II. My Elane
My Elane is an application that will allow you to place an order for products and services for pick-up at participating third party merchants (the “Merchants”) using a smart phone, tablet or other compatible mobile device (“My Elane”). Once placed, the order will automatically be charged to your credit card. My Elane will continually provide the selected merchant with an estimate of your arrival time for pick-up of your order to ensure it will be ready when you arrive.
You agree to receive e-mail from us at the e-mail address you provided to us for customer service related purposes.
IV. Electronic Notice
By using the My Elane Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy and administrative issues relating to your use of the My Elane Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the My Elane website or sending an e-mail to you.
V. Account Registration and How it Works
Registration Process. The first step to using the My Elane Service is to create a My Elane account (“Account”) by downloading the My Elane application and registering via the application. During the registration process we will ask you for your name, mobile phone number, date of birth, credit card information and to create a PIN. You must provide accurate and complete information in your registration application and are solely responsible for the security and privacy of your PIN. We reserve the right to suspend or terminate your My Elane Account if you provide inaccurate, untrue, or incomplete information, or fail to comply with the account registration requirements. You must provide accurate and complete information in response to our questions and also must keep the information that you provide up-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 relay information generated in connection with these payments. By accepting these Terms, you authorize us to hold, receive and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorization will remain in full force and effect until your Account is closed or terminated.
Term and Termination. These Terms are effective on the Effective Date. You may terminate these Terms at any time by uninstalling our mobile application and ceasing use of the My Elane Service. All sections of these Terms will survive termination including without limitation, ownership, warranty disclaimers, limitations of liability and any obligations to pay amounts accruing prior to the termination date.
My Elane’s Content. The contents of the My Elane Service include: designs, text, graphics, images, video, information, logos, button icons, software (including mobile applications and hosted software services), audio files, computer code and other My Elane content (collectively “My Elane Content”). All My Elane Content are the property of Expose and are protected under copyright, trademark and other laws.
My Elane and all 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 Elane application are trademarks of their respective owners. The trademarks of the Merchants are used under license. Nothing contained on My Elane should be construed as granting, by implication or otherwise, any license or right to use any trademarks, including the Trademarks, except with the express written permission of Expose or the other party that may own the applicable trademarks.
My Elane makes use of the following third party components:
License to You. We authorize you, subject to these Terms, to access and use the My Elane Content solely for the use of the My Elane Services at our discretion. In our sole discretion, in addition to any other rights or remedies available to us and without any liability whatsoever, we, at any time and without notice, may terminate or restrict your access to any component of the My Elane Services or revoke this license. Unauthorized use of the My Elane Content may violate copyright, trademark and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks and other proprietary notices contained in the original My Elane Content on any copy you make of the My Elane Content. You acknowledge that the My Elane Content license granted herein confers no title or ownership. It is not a sale of any rights in the My Elane Content. My Elane retains all intellectual property rights in the My Elane application and the My Elane Content including without limitation, all patent, copyright and trademark rights. All rights not expressly granted to you are reserved solely to Expose.
VI. User Content Disclaimers, Limitations and Prohibitions
We do not represent or guarantee the truthfulness, accuracy or reliability of content posted by other users and third parties, including Merchants. You accept that any reliance on material posted by third parties or third party service providers will be at your own risk.
VII. Prohibited My Elane Service Uses
You agree to use the My Elane Service only for its intended purpose. You must use the My Elane Service in compliance with all privacy, data protection, intellectual property and other applicable laws. The following uses of the My Elane Service are prohibited. You may not:
1. Aggregate, copy or duplicate any My Elane Content;
2. Use data mining, robots or other data gathering 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 the proper working of the My Elane Service;
5. Attempt to gain or gain unauthorized access to the My Elane Service or computers linked to the My Elane Service;
6. Attempt to reverse engineer, or reverse engineer the My Elane Service;
7. Frame or link to the My Elane Service without permission;
8. Attempt to or submit a virus to the My Elane Service;
9. Take any action imposing an unreasonable or disproportionately large loan on My Elane’s infrastructure;
10. Attempt to or obtain unauthorized access to other users’ accounts;
11. Sell, transfer or assign any of your rights to use the My Elane Service to a third party without our express written consent;
12. Use the My Elane Service 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 Elane Service in an illegal way or to commit an illegal act;
14. Access the My Elane Service 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 Elane Service to send spam, threats, profanity or hate speech, including any material that abuses or discriminates on the basis of race, religion, nationality, sexual preference, gender, age, etc;
17. Use the My Elane Service while driving; or
18. Use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a credit card or other content.
VIII. User Name and Password
Purchases on My Elane will be processed through your My Elane account which may be accessed only by use of your login name and password. You are solely responsible and liable for any use and misuse of your login name and password and for all activities that occur under your login name and password. For security reasons, you must keep your login name and password confidential and 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 a password that is unique to you and not easily guessed by others. You should change your password on a regular basis, and you must log out at the end of each session.
All login names and passwords remain the property of Expose, and may be cancelled or suspended at any time by Expose without any notice or liability to you or any other person. Expose is not under any obligation to verify the actual identity or authority of the user of any login name or password.
You must immediately notify Expose of any unauthorized use of your login name or password, or if you know or suspect that your login name or password has been lost or stolen, has become known to any other person, or has been otherwise compromised.
IX. Payments and Billing
When you make a purchase through the My Elane Service it is a binding commitment to purchase the products you selected. You agree to pay the applicable charges for any orders you place through the My Elane Service. Our Merchants reserve the right to change the amounts they charge for products at any time. All balances and all fees, charges and payments collected or paid through the My Elane Service are denominated in Canadian dollars.
Refunds and Returns. We are solely a facilitator of transactions. You acknowledge and agree that in the event of any dispute over a payment, the merchant who provided the applicable food and/or beverages is solely responsible for providing you with any refunds that you may be owed.
X. Consequences of Violating These Terms
We reserve the right to suspend or terminate your My Elane Account and prevent access to the My Elane Service for any reason, at our discretion. We reserve the right to refuse to provide the My Elane Service to you in the future. You agree to be responsible for any claims, fees, fines, penalties and other liability that may be incurred by us or others caused by or arising out of your breach of these Terms and your use 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 or availability 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 the Merchants premises. Merchants are under no obligation to make promotional prices available on My Elane Services. 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 provide to the My Elane Services, including account information (name and e-mail address), payment information (credit card numbers and expiration dates), and transaction related information, which must be true, accurate, current and complete. You will be solely responsible and liable for any loss, damage and additional costs that you, we or any other person may incur as a result of your submission of any false, incorrect or incomplete information or your failure to update your registration information and payment information.
In addition, we make no representations about accuracy, reliability, completeness or timeliness of any data from third party service providers or the quality or nature of third party products obtained through the My Elane Service. Use of the My Elane Service is at your own risk.
We make no promises and disclaim all liability of specific results from the use of the My Elane Service.
DISCLAIMER OF WARRANTIES – READ THE FOLLOWING CAREFULLY
Released Parties Defined. “Released Parties” include Expose and its affiliates, officers, employees, agents, partners, licensors, third party licensors and Merchants.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE MY ELANE SERVICE IS AT YOUR SOLE RISK AND THE MY ELANE SERVICE AND MY ELANE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY MERCHANTS OR RESULTS THAT MAY BE OBTAINED BY CONSUMERS THAT USE THE MY ELANE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND THOSE ARRISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE MY ELANE SERVICE OR MY ELANE CONTENT WILL MEET YOUR REQUIREMENTS, (ii) THE MY ELANE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MY ELANE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL YOU OBTAINED THROUGH THE MY ELANE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS 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 ELANE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE MY ELANE SERVICE; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (v) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE MY ELANE SERVICE BY ANY THIRD PARTY; (vi) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE MY ELANE SERVICE; (vii) USER CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (viii) LATE, LOST, INELIGIBLE, MISDIRECTED OR STOLEN MESSAGES, UNAVAILABLE NETWORK CONNECTIONS, FAILED INCOMPLETE, GARBLED OR DELAYED COMPUTER TRANSMISSIONS, TECHNICAL MALFUNCTIONS OR DISTURBANCES OR ANY OTHER COMMUNICATION FAILURES OR CIRCUMSTANCES AFFECTING, DISRUPTING OR CORRUPTING COMMUNICATIONS.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE MY ELANE SERVICE, MY ELANE CONTENT, ALL SITE-RELATED SERVICES AND THIRD PARTY WEBSITES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EXPOSE OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OF ANY KIND. ANY REFERENCES TO SPECIFIC PRODUCTS OR SERVICES ON EXPOSE WEBSITES DO NOT CONSTITUTE OR IMPLY A RECOMMENDATION OR ENDORSEMENT BY EXPOSE UNLESS SPECIFICALLY STATED OTHERWISE.
OUR MAXIMUM LIABILITY ARISING OUT OF OR IN 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 OF WARRANTY 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 hold harmless the Released Parties from and against any claims, actions or demand, including without limitation, reasonable legal and accounting fees, arising out of 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 Elane users to provide Expose with feedback by email or otherwise (“Customer Content”). If you provide Customer 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 works from, distribute, and display that Customer Content throughout the world in any media, now known or later developed, for any purpose whatsoever, commercial or otherwise, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence, and you waive any and all moral rights in the Customer Content. You also grant Expose the right to use the name you submit with the Customer Content, if any, in connection with Expose’s rights set out in this section.
xiii. General Terms
These Terms constitute the entire agreement between you and Expose concerning your use of the My Elane Service. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision and the other provisions of these Terms shall remain in full force and effect. These Terms and any rights and licenses granted hereunder may not be transferred or assigned by you but may be assigned by Expose without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect.
These Terms and the relationship between you and Expose shall be governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein. You and Expose agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario any disputes relating to your use of the My Elane Service.