Thank you for visiting the SB Mobile web site. These are important and legally binding terms and conditions that apply to your use of the services (the “Services”) offered through this site (the “Site”). By using this Site you are agreeing to these terms and conditions (the “Agreement”). Please read this Agreement carefully.
You may be an individual user (each a “User”) or a merchant user (each a “Merchant”) of the Services. The term “Member” shall apply to all Users and Merchants.
The Site is owned and operated by 8579083 CANADA INC., a Canadian corporation, having its registered address at 515 Legget Dr., Suite 800, Kanata, Ontario, K2K 3G4 and doing business under the name Network Oxygen (NO2) and/or SB Mobile and/or Mobitize (“SBM”).
THE SERVICES ARE NOT ALL OPERATIONAL YET. WHILE SBM WISHES TO LAUNCH THE BETA OF ITS SERVICE WITHIN THE DELAY POSTED ON THE SITE; THAT DELAY IS SUBJECT TO CHANGE WITHOUT ADVANCE PRIOR NOTICE TO OR CONSENT FROM MEMBERS. ANY AND ALL FEES COLLECTED BY SBM ARE FOR SERVICES THAT ARE ALREADY AVAILABLE ON THE SITE. SBM DOES NOT COLLECT SERVICES THAT ARE NOT YET AVAILABLE ON THE SITE. SBM IS NOT A BANK. ANY FUNDS THAT YOU MAY ADD TO ANY ACCOUNT WITH SBM ARE NOT INSURED AND WILL BE LOST IN THE EVENT OF A BANKRUPTCY OF SBM.
i. "Account" means an account maintained through SBM whereby a Member can maintain a balance of SBM Dollars pursuant to the terms hereof;
ii. “Benjamins” means a form of Commission that may be redeemed only at Merchants and may not be converted into cash by a Member;
iii. "Commissions" means commissions to which a Member may be entitled pursuant to the Commission Schedule published on the Site;
iv. "Commission Schedule” means a description of the rights and obligations of Members to and relating to all Commissions posted on the Site, such as it may be from time to time;
v. “Deposit Account” means a bank account of the Member maintain a bank or financial institution to which and from which the Member wishes to make payments into the Account via ACH or EFT;
vi. “Fees” means those amounts for which Members are liable to pay in consideration of the Services, including, without limitation, Transactions;
vii. “Product" means any product or service for sale by Merchant for which Merchant wishes to receive payment in the form of SBM Dollars;
viii. “SelfBank Cash Advance Rewards” are Benjamins earned by a Member pursuant to the Commission Schedule;
ix. “Services” means (i) the supply of the Tools; and (ii) the service of selling credits within the SBM community, which credits can be transferred from one Member to another or returned to a Member, subject to the terms hereof;
x. "Tools" means those marketing and promotion tools and software available to Members through the Site;
xi. "Transaction" means any transaction whereby a Member wishes to credit or debit they are Account or any amount of SBM Dollars;
xii. "SBM Dollars" means a form of electronic cash maintain in the Account;
xiii. “SelfBank Cash Back Rewards” are discounts that a Member offers to other SelfBank Members at the time of purchase of goods or services. Percentage of discount will be no less than 1% of total purchase price or higher, based upon the discretion of the Member. These “SelfBank Cash Back Rewards” will be deposited into a separate account, that is specifically held on the behalf of the Member and can be transferred into their main Account once balance is $100 or higher.
2. Obligations of SBM
2.1 Services. Services are not all available as of now. The Service of enabling Transactions is not yet available, and there is no surgeon date on which it will be available. SBM shall use commercially reasonable efforts to cause all of the Services to be supplied.
2.2 Commissions. SBM shall use commercially reasonable efforts to pay the Commissions to Members.
2.3 Benjamins. Pursuant to the terms of the Commission Schedule, Members shall earn Benjamins.
2.4 Record Keeping. SBM shall maintain records of Transactions and eligibility for Commissions which records shall be authoritative in settling any disputes between SBM and any Member or between any two Members in respect of Commissions owing.
2.5 Account. As of when SBM announces that Transaction Services are available, SBM shall sell SBM Dollars to Members who may pay for such SBM Dollars by those means that shall be published by SBM on the Site. In the event that any purchase of SBM Dollars is chargeback by the Member making the purchase, such Member shall not receive the credit of the SBM Dollars and shall be liable for chargeback fees as per the Commission Schedule. When Transaction Services are available, Members shall be able to transfer SBM Dollars to other Members, subject to the terms hereof.
2.6 Directory Listing. As and when made available through the Site, SBM shall provide Members with a business directory listing hosted by the Site that will permit them to promote their services for Fees posted on the Site.
2.7 Educational Programming. As and when made available through the Site, SBM shall provide Members with educational programming for Fees posted on the Site.
3. Obligations of Members
3.1 Promotion of Services. Member shall promote the Services, subject to the terms hereof. In the course of promoting the Services, Member shall not make any reference to the Services or to SBM except as expressly permitted by SBM. Notwithstanding any review of any promotional material by SBM, the Member shall remain bound by the standards for promoting the Services described at the Site as well as the terms of this Agreement. Member shall not make any misrepresentations as to the nature or extent of the Services. Member shall clearly inform all prospective other members that certain parts of the Services are not yet available, including, without limitation, the ability to carry out Transactions. Member shall be liable to SBM for any and all liability arising from any breach of this provision or any other provision of this Agreement.
3.2 Representations and Warranties. It is agreed between the Parties that performance by SBM hereunder, whether the representations, warranties and covenants of the Member are fulfilled or not, shall in no manner whatsoever waive the benefit, to SBM, of any such representations, warranties and covenants of the Member. The Member hereby warrants and covenants to SBM that:
a) Duly Constituted. If it is not an individual, that it is duly constituted under the laws of its constituting jurisdiction and that it has legal capacity to enter into this Agreement and perform its obligations hereunder;
b) Capacity. If it is an individual, that he or she is of at least 18 years of age and of the legal age for the conclusion of verbal contractual obligations in his or her place of residence and his or her place of business and that he or she does not require the consent, approbation, or approval of any other person to conclude or contract a valid obligation of the type set forth herein;
c) Duly authorized. It or he has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Member does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Member is subject.
d) Opportunity to consult counsel. It has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof.
e) Business. If it is a Merchant, it is entering into this Agreement in its capacity as a business and not as an individual consumer;
f) Changes in Member Information. It shall submit to SBM in writing, for SBM’s written consent, any changes or modifications to the Member Information;
g) SBM’s Reputation. It will uphold the good name and reputation of SBM;
h) Notice of Defects. It will immediately advise SBM in writing of defects in the Product or any claim or threatened claim against it in relation to the Product;
i) Compliance with Laws. The Product conforms to all applicable laws in the jurisdictions where SBM, Member and its customers are located. It will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable laws and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold by SBM. Member shall not use the Services to sell or promote or otherwise facilitate pornography, gambling or casinos, whether online or otherwise;
j) Fraud. It shall not promote or allow the use of the Services or the Product in connection with any money laundering, fraudulent or other illegal activities under any laws or regulations of any applicable jurisdiction;
k) Prohibited Uses. It shall not use the Services to itself or permit any third party to operate any e-wallet, payment aggregation or payment services company, nor shall it use the Services in relation to the sale or promotion of any pornography, pharmacy, pharmaceuticals, drugs, prohibited substances, controlled substances, the collection and resale of personal information or any other product or service deemed unacceptable by SBM, acting at its sole discretion.
l) Independent Contractor. SBM is an independent contractor and that nothing herein shall be construed as creating a joint venture, partnership or for sale agency relationship between them. Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent.
3.3 Fees. Members shall pay Fees. In the event that a Member does not pay Fees within 10 days of a demand notice appearing for the Member on the Site, SBM may deduct the amount of Fees owing to it from the Account. SBM does not collect Fees in respect of Services that are not yet available. The Fees that have been collected to date and that are being collected now are in consideration of those Services that are available today through the Site. Fees collected are not refundable.
3.4 Sale of Product. If the Member is a Merchant it shall offer for sale those Products that it advertises on the terms and conditions advertise by the Member. Member shall not make any false representations concerning any Products.
3.5 Intellectual Property in Product. Member represents and warrants that the Product shall perform as described in any documentation relating thereto and shall be free from defects. If a breach of the foregoing occurs, Member shall replace, repair, and/or modify such Product without charge to SBM and without delay. Member shall test programming materials for viruses, time bombs, back doors and other disabling or harmful devices (“Unauthorized Code”) and remove any Unauthorized Code before use by Member, SBM, or any customer of a Member. Member represents and warrants to SBM that no portion of the Product is subject to the intellectual property rights of any third party, including but not limited to, copyrights, patent rights, trademark rights, trade secret rights, or rights as confidential information.
3.6 Compliance. Throughout the term hereof, Member and its affiliates shall themselves and shall ensure that: (a) the Product, and all related products or services, do not contain any content that is unlawful, threatening, defamatory, obscene or otherwise objectionable; (b) the Product does not consist of, promote or relate to (A) sexually explicit materials, violence, discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation or age, (B) illegal activities or (C) infringement on intellectual property rights.
3.7 SPAM Prohibited. The Member may also promote the Product or Service in any manner it deems fit provided that such promotion does not violate any applicable laws and does not consist of use of bulk e-mails, fax blasting for any illegal or distasteful business practices.
3.8 Maintenance and Service. Member shall be responsible for any and all support and maintenance related to the Product all of which it shall supply to purchasers of Product on reasonable terms.
3.9 Background Check. Member authorises SBM and its representatives to obtain from third parties financial, credit information and personal background relating to Member, its shareholders, directors and officers to assist SBM's determination of whether to accept this Agreement and SBM’s continuing evaluation of the financial and credit status of the Member. Upon request, Member shall provide to SBM or its representatives reasonable access to Member's facilities and records for the purpose of performing any inspection and/or copying of Member's books and/or records deemed appropriate by SBM in order to verify compliance with the terms hereof.
3.10 Indemnification. Member shall defend, indemnify and hold harmless the SBM, its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) arising out of or resulting from (i) Member’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Member; (ii) the negligent or willful acts or omissions of Member or Member’s agents and/or employees; and (iii) any statements, claims, representations or warranties made by Member or Member’s agents and/or employees, relating to the Products.
3.11 ACH/EFT Authorization. As of the time when Transaction Services are activated on the Site, Member authorizes SBM to draw a debit or credit in paper, electronic or other form for the purpose of making payment or receiving redemption for SBM Dollars on the Deposit Account. Member authorizes the financial institution where the Deposit Account is located to honour and pay such debits and credits that may be transmitted via the Automated Clearing House (“ACH”) or as a Electronic Funds Transfer (“EFT”) (the “ACH Authorization”). The ACH Authorization shall permit SBM to deposit and withdraw varying amounts at varying intervals form the Deposit Account, including, without limitation, any amounts that Member may wish to credit to its Account hereunder or amounts or which Member is liable to SBM hereunder or amounts that Member may wish to debit from its Account and have deposited in its Deposit Account. If, or whatever reason, SBM is unable to debit an amount of Fees payable to hereunder by ACH or EFT, Member shall pay such amount to SBM within five (5) business days of a demand therefore. Member may be allowed to purchase SBM Dollars or redeem SBM Dollars by means other than ACH or EFT as may be permitted by SBM, from time to time
4. Term and Termination
4.1 Term. This Agreement shall be effective commencing on the date that Member has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and ending one (1) year thereafter (the “Initial Term”). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive one (1) year periods, unless earlier terminated in accordance with the terms hereof.
4.2 Termination at Will. Either party may terminate this Agreement at any time on notice to the other party.
4.3 Procedure upon Termination. Upon any termination of this Agreement, Member shall longer be entitled to use the Services or the Site. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Member of its obligations to pay accrued Fees or other liabilities to Member hereunder. If this Agreement is terminated for breach by the Member, Member shall forfeit its rights in any and all SBM Dollars in the Account. If this Agreement is terminated or any other reason, SBM shall refund to the Member any amounts in the Account within 30 days of such termination subject to any and all applicable Fees or other amounts owing by Member to SBM hereunder.
5. Confidential Information
5.1 Confidentiality. Member agrees that, during the Term hereof, so long as Member is receiving Fees hereunder and for a period of two (2) years thereafter neither Member nor any of its affiliates will directly or indirectly engage in the following conduct itself nor permit or assist any third party to breach any of the following obligations (collectively, the “Confidentiality Obligations”):
a) Confidential Information. For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to SBM and any of its affiliates, operations, employees, independent sales organizations, agents, products or services, clients, customers or potential customers, Members, users or merchants. Confidential Information shall include, without limitation, Member lists, all Member agreements and all parts thereof, financial or other data in any format, computer access codes, instruction and/or procedural manuals, payroll information, human resource or personnel information, business strategies and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. In order for Member to perform hereunder, SBM will be obliged to disclose to Member certain Confidential Information concerning the Services and Merchants.
b) Non-Disclosure. Member agrees that it shall not, except as expressly required in the conduct of its obligations hereunder or as authorized in writing by SBM, publish or disclose, during Member's provision of services to SBM or subsequent thereto, any trade secret or Confidential Information relating to Services (or SBM's sponsoring banks' or processors' products or services) that Member may in any way acquire by reason of his or her association with SBM. Member shall not speak to or communicate with any media or journalist or make any public statements concerning this Agreement, the Services or SBM without the prior written consent of SBM.
c) Legally Required Disclosure. In the event that the Member is required by law or legal process to disclose any of the trade secret or Confidential Information, the Member shall provide SBM with prompt oral and written notice, unless notice is prohibited by law (in which case such notice shall be provided as early as may be legally permissible), of any such requirement so that SBM may seek a protective order or other appropriate remedy.
d) Return of Confidential Information. Upon any termination of this Agreement, Member shall surrender to SBM all Confidential Information and materials furnished to Member by SBM and any materials developed by Member during the course of the Agreement’s term including but not limited to the following: (1) Rules and Procedures, (2) all lists of Merchants and prospective Merchants, (3) forms, office supplies, manuals and any other material previously furnished or made available by SBM to Member. In addition, upon any termination hereof, Member shall cease any and all contact with any Merchant, agent or employee of SBM and shall no longer promote the Services.
6. Limitation of Liability
6.1 NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SBM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY SBM OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
6.2 Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SBM, IT’S MEMBERS, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE PUBLISHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF SBM HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL SBM’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE MEMBER IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO SBM DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
6.3 Force Majeure. SBM shall use its commercially reasonable efforts to perform its obligations hereunder, however, SBM, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of Member, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond SBM’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. SBM’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by Member.
7.1 Notices. Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to the SBM at the postal address provided therefore on the Site; to Member at the address provided therefore upon registration with the Site; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
7.2 On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by Member or by execution of a written acceptance of the terms hereof by Member, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
7.3 Amendments. None of the terms of this Agreement shall be amended except by a written agreement between the parties hereto or by SBM posting an amendment to the Site.
7.4 Assignment. None of Member or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of the SBM which consent may be withheld for any reason, at the SBM's sole discretion.
7.5 Successors. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
7.6 Enforcement. The Member shall be liable for and shall indemnify and reimburse the SBM for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by the SBM in the enforcement of this Agreement, or in collecting any amounts due from Member hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
7.7 Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
7.8 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
7.9 Governing Law and Choice of Forum. This Agreement shall be deemed to be governed and enforced in accordance with the laws of the Province of Ontario whose courts shall have exclusive jurisdiction over disputes arising hereunder. The parties hereto agree that this agreement is drafted and executed in the English language. Les parties aux présentes s'entendent pour que la présente convention soit rédigée en langue anglaise.
7.10 Whole Agreement. References to "this Agreement" include any Commission Schedules, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by the SBM and furnished to Member from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.