PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS WHICH INCLUDE BINDING ARBITRATION; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SERVICES IN ANY MANNER. SPEND RESERVES THE RIGHT TO AMEND THESE TERMS AND CONDITIONS AT ANY TIME WITHOUT NOTICE.
1.1 These Card Terms are entered into by and between you Spend and govern your use of the Spend Card. By ordering a Spend Card you agree to be bound by these Card Terms and you should therefore read these Card Terms carefully. If you have any questions in respect of anything set out in these Card Terms please contact [email protected]
1.2 Your Spend Card is issued by the applicable Card Issuer, and is subject to the Card Issuer Terms, which you agree to and accept in ordering and using a Spend Card.
1.3 The Card Issuer Terms are separate and independent from these Terms.
We shall be entitled at our sole discretion to (i) change the eligibility criteria for registration at any time and/or (ii) refuse your application, and/ or (iii) having accepted your application to register you or having approved you through the Verification process, terminate your use of the Card and/ or Your Account if you fail to fulfil any one of the following criteria. By signing up for a Card and the corresponding Account, you represent and warrant that:
A. you are at least eighteen (18) years of age;
B. you are eligible to register for and use the Card and the corresponding Account in accordance with the Verification process
C. you have the full right, power, and legal authority to enter into this Agreement; an
D. you are not impersonating any other person, operating under an alias or otherwise concealing your identity.
3. ON-BOARDING, KYC, & PERSONAL DATA
3.1 To apply for a Card, you must have completed Verification.
3.2 We reserve the right to refuse to top-up / load / approve any Account or Card, and may suspend or terminate your use of the Card if you have failed to, or in our reasonable belief it becomes apparent that you have failed to:
A. you fail to submit satisfactory KYC Information to be determined at Spend’s discretion; or
B. you submit inaccurate or incomplete KYC Information; or
C. we are unable to verify your identity based on the KYC Information you submit or (d) at any time we suspect that you are using your Account for any purpose which is prohibited under these Card Terms.
4. USING YOUR SPEND CARD
4.1 Please note that your Card is not a credit card and does not incorporate or allow any credit facility. Transactions made using the Card will only be successful to the extent your Account holds a sufficient Usable Balance to settle transactions and you will not be able to complete transactions in the event you have a Negative Balance. Spend will debit the relevant Supported Currency within your Account when used. You can use your Card to complete transactions, which will deplete your Usable Balance, debiting the relevant Supported Currency Account. You will need to activate your Card and top-up / load funds onto your Account in accordance with these Card Terms in order to use your Card to make purchases. Subject to any limitations contained in these Card Terms, once your Card is activated and loaded, you may use your Card to:
A. purchase goods and services from merchants which accept payment via your Card; and
B. withdrawal cash from ATMs outside of the Territory which allow withdrawals using your Card.
4.2 The Account to which your Card is linked is not a savings or checking account and no interest whatsoever shall be due or payable to you in respect of any part of the Usable Balance stored in your Account.
4.3 For the avoidance of doubt, Spend is not a party to any transaction for sale and purchase of goods and services between you and any merchant. The rights and obligations in connection with (a) the sale and provision of goods and services which are the subjects of such transactions, (b) the transaction methods and terms, and (c) performance or non-performance of the transactions (including but not limited to refusal to perform, delay, non- delivery, defects, errors, return or replacement of goods and services, and refund), exist only between you and such merchant, and Spend has no control over and is not responsible for the delivery, quality, safety, legality, fitness for purpose or any other aspect of goods or services that you purchase with the Card or Account. Spend cannot and does not guarantee or ensure that the merchant you are dealing with will complete the transaction or that the merchant is authoriZed to do so.
5. YOUR SPEND CARD PIN NUMBER
5.1 You must log in to your Spend Dashboard to activate your Card and follow the instructions online to select your PIN to enable use of your Card. You are at all times responsible for maintaining adequate security and control of your PIN or any other codes that you use to access the services provided under these Card Terms.
5.2 Once you have successfully activated your Card, set up your payment PIN, and loaded funds onto your Account, you may use your Card to conduct transactions in accordance with these Card Terms. Your selected PIN must be designated by you and must not be shared or stored with any other person.
5.3 Where you believe the security of your PIN has been compromised, please contact Spend Support on [email protected] and follow the procedures we instruct.
6. PROTECTING YOUR CARD, PIN AND PASSWORD.
6.1 Your Card and the corresponding Account shall be for your use only and may only be used after the Card has been activated in accordance with these Card Terms. You are responsible for keeping your PIN and password confidential and secure. You must not:
A. keep any written record of your PIN or password;
B. allow another person to see your PIN or password;
C. keep your PIN or password in a form that can be readily identified as the PIN or password to your Card
D. disclose your PIN or password to any other person (including your family members or spouse);
E. carry your PIN or password with your Card or store them in your mobile devices.
6.2 You must set a password to be able to log into your Spend Dashboard. Using your Card, go to the Website and set up your access to the Spend Dashboard.
6.3 If you forget your password or believe it may have been compromised, you should contact Customer Support immediately on [email protected] You may reset your password by logging into your Spend Dashboard at any time you wish.
7. MOVING YOUR PERMANENT RESIDENT TO ANOTHER COUNTRY
Should you change your country of residence to a territory outside the Territory after signing up for your Card, you may be prevented from loading funds to your Account. You will however still be able to (a) use any positive Usable Balance remaining in your Account to conduct transactions or cash withdrawals in accordance with these Card Terms until the expiry date stated on your applicable Card or until your Usable Balance is fully utilized, whichever is occurs first; or (b) obtain a refund of your Usable Balance.
8. CONTACTING SPEND CUSTOMER SUPPORT
8.1 Unless otherwise stated in these Card Terms, should you have any request, issue, or any complaint regarding the Card, you may contact Customer Support any day from Monday to Sunday by email to [email protected]
8.2 You agree that Spend and/or the Card Issuer may (i) monitor and/or record any conversations you have with our Customer Support officers; and (ii) use such recordings or electronic transcripts from such recordings for quality assurance and training purposes or as evidence in any dispute or anticipated dispute.
8.3 Should you urgently need to disable or block any transaction or ATM withdrawal undertaken using your Card, you may access your Spend Dashboard and freeze your Card.
9. MULTI-CURRENCY DIGITAL WALLET
You may top-up / load / spend supported Currency Wallets in your Account with the applicable Supported Currency. Where you provide funds in an Unsupported Currency, the Payment Processor may first convert such sums of Unsupported Currency into an equivalent amount in your selected Supported Currency (at the applicable prevailing exchange rate). Funds transferred between your Currency Wallets will also be subject to the prevailing Exchange Rate.
10. USE OF YOUR ACCOUNT
10.1 Only you as the cardholder, are authorized to use your Card and the associated Account. You can use your Card to access the Usable Balance on your Account to purchase goods and services from Visa-supported merchants worldwide, who accept the Card. However, where a merchant or financial institution does not accept payment via your Card or Account, Spend shall not be liable in such cases. You may also use your Card to withdraw sums from the Usable Balance on your Account at any ATM which accepts your Card. Your Card and its corresponding Account may only be used to make any transactions or withdrawals if it has a positive Usable Balance. We will not under normal circumstances authorize transactions for a transaction or withdrawal amount which is larger than your Usable Balance. Where such transactions are processed, you shall be liable to us for any resulting Negative Balance plus any applicable fees, along with any costs incurred by us or any other relevant third party in recovering or attempting to recover from you the amount of Negative Balance that you owe. Where we permit a Negative Balance to be incurred, it shall not be deemed to set any precedent for subsequent occasions.
10.2 Each time you make a transaction or withdrawal, your Account will be debited immediately by the amount of such transaction or withdrawal, plus any applicable fee and any other amount that we may deduct from your Account under these Card Terms. The Usable Balance on your Account will be reduced accordingly.
11. CHARGES & FEES
11.1 All fees and charges that relate to the use of your Card and Account are detailed in the Fees Section. All applicable fees and charges (unless otherwise specified) will be deducted from your Usable Balance in addition to the sum debited from your Account as part of any Transaction. Fees are exclusive of Transaction amounts.
11.2 Unless otherwise specified in these Card Terms, all Account fees and charges as listed will be deducted from your Default Wallet in the first instance. Where your Default Wallet contains insufficient funds to complete such deductions, to satisfy the payment of such Account fees and charges, the transaction may be declined.
12. INTERNATIONAL ATM FEES
12.1 Fees in respect of international ATM withdrawals made using your Card will be deducted in the manner set out below:
12.2 For ATM withdrawals in a Supported Currency, the international ATM withdrawal fee will be deducted from the Currency Wallet containing such Supported Currency.
12.3 For ATM withdrawal in an Unsupported Currency, the international ATM withdrawal fee amount will be deducted from your Default Wallet in the relevant currency contained in your Default Wallet.
12.4 Please note that: (i) some ATM operators may impose an operator fee which will be charged in addition to the total transaction amount (along with Spend’s imposed Fees) and be deducted from your Usable Balance and (ii) not all ATM operators advise you of their ATM operator fees before you withdraw money.
13. SUPPORTED CURRENCY CARD TRANSACTIONS
13.1 When you withdraw money from an ATM, make a purchase, or where an ATM operator charges you an ATM Operator Fee, in each case in a Supported Currency that you have loaded on your Account, the transaction amount including any fees payable will be deducted from the relevant Currency Wallet holding such Supported Currency. Where you have insufficient funds in that Currency Wallet, the transaction will not be successful.
13.2 A transaction cannot be funded from multiple Currency Wallets. Automated Currency Transfer is not currently supported by the Spend Website or Spend app.
13.3 Unsupported Currency Transactions: When you withdraw money from an ATM, make a purchase, or where an ATM operator charges you an ATM operator fee, in each case in an Unsupported Currency, funds from your Default Wallet will be debited and converted to the Unsupported Currency at the applicable Exchange Rate. If your Default Wallet has no funds, or insufficient funds, then the transaction will be unsuccessful.
14. TRANSACTION DISPUTES & ERRORS
14.1 You should retain all vouchers and transaction records, transaction advices and receipts issued by merchants and ATMs, and check all transactions details and entries by reviewing your transaction records and history (which may be accessed on your Spend Dashboard or via Customer Support) on a regular basis. We accept no responsibility for your failure to regularly review, reconcile and verify the correctness of your transaction history and details nor your failure to promptly report to us any discrepancy, errors, omissions or unauthorised transactions in relation thereto.
14.2 Details in the entries of your transaction history reflected on your Spend Dashboard are presumed to be true and correct unless you notify us in writing of any disputes or inaccuracies thereon within two (2) weeks from the time of transaction.
15. DISPUTES REGARDING ERRORS
15.1 If you believe an accounting error has occurred with regard to the Usable Balance in your Account, or your transaction history, you must notify and report such errors to us as soon as possible, in any case within two (2) weeks from the date of the disputed transaction by contacting our Customer Support team.
15.2 You are required to provide your proof of transaction along with as much relevant information surrounding such disputed transaction as possible. Once we have received that information, we will investigate such errors and acknowledge receipt of the same in writing within five (5) business days. Where we do not acknowledge receipt, it shall be deemed that we have not received the information.
15.3 Unless you have not complied with our request for information or there are exceptional circumstances impeding our investigations (in which case we will write to you to let you know), we will complete the transaction investigations (in most cases) within forty five (45) business days of acknowledging the receipt of the information from you and notify you of the outcome. Any decision made by Spend in the resolution of such dispute shall also be final and in the sole discretion of Spend.
15.4 If we determine any transaction error or dispute to be attributable to our fault or the fault of our services providers (including the Card Issuer), we will take steps to rectify such errors and make the appropriate refunds to your Card and/or Account where necessary. However, if on reasonable grounds we decide that any such errors of defaults are not attributable whether directly or indirectly to us, the Card Issuer or our service providers, we will notify you of our decision in writing and shall not be obliged to take any further action. Unless a transaction or recording error is due directly to our fault, we shall have no liability to you.
16. UNAUTHORIZED TRANSACTION DISPUTES OR NON-RECEIPT OF ITEM
16.1 Please note that you cannot stop or reverse a payment on any transaction after it has been authorized or completed. Where you would like to receive a refund after conducting a transaction you should contact the relevant merchant directly with your request. Where a merchant decides to process your request for a refund, it must issue a valid refund voucher to Spend in order for Spend to make a refund to you. Spend can only credit your Account with the refund after we have received such voucher from the merchant.
16.2 Any dispute you have with a merchant over good or services procured using your Card or Account must be addressed directly to the merchant from whom such goods or services were provided.
16.3 We may (but are not obliged), in our sole and absolute discretion, file a formal dispute with a merchant on your behalf over a transaction for which you believe you are entitled for a refund, or is otherwise unauthorized, provided that you duly comply with our requests for information (including provision of proof of transaction) and make available to us all relevant documentation. Provided that the dispute is resolved by the merchant in your favor, in accordance with the rules of the applicable card network, we as the issuer of the Card will credit your Account with the disputed amount.
17. REVERSALS & REFUNDS
17.1 Any refunds, payment rebates or reversals made by a merchant to you in connection with a transaction previously made in a Supported Currency, will be credited to your Currency Wallet holding that particular Supported Currency. If at the time during or after the rebate, refund or payment reversal is processed, you no longer have the applicable Currency Wallet and you already have the maximum number of Currency Wallets allowed, we will return the equivalent amount to your Default Wallet after applying the Exchange Rate applicable at the time of the rebate, refund or reversal.
17.2 Rebates, refunds or reversals made in an Unsupported Currency will be converted at the applicable Exchange Rate to USD and returned to your Default Wallet. We will also refund any currency conversion fee charged on your original transaction, and we will not charge another currency conversion fee on the refunded amount. Note that amounts returned for Unsupported Currencies and currency conversion fees may differ from the amount deducted from your Account at the time of the original transaction due to exchange rate fluctuations.
18. ACCOUNT LIMITATIONS
18.1 When using your Card with certain merchants (such as hotels and car rentals), the merchant may obtain an authorization or approval to debit your Account for an amount up to 20% more than the anticipated total bill to cover additional items such as incidentals or to ensure adequate funds are available. The entire amount of the authorization or approval will not be deducted from your Usable Balance until the authorization or approval is confirmed. Only the amount actually spent or authorized will be finally deducted from your Usable Balance after the authorization or approval is confirmed.
18.2 You may not use your Card or Account for the following purposes:
A. making purchases from merchants who do not accept the Card;
B. engaging in any transactions:
C. which violate any Applicable Laws;
D. involve Prohibited Articles;
E. in, or with any persons in any Prohibited Country;
F. involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent; or
G. are part of or connected to a money transfer mechanism to transfer funds to a third party which does not relate to an underlying transaction of goods and services.
19. ACCOUNT LIMITS & FEES
To see the latest applicable top-up / load limits and schedule of applicable fees please see our Fees Section.
20.1 You may request a new Card or replace an old or faulty Card at any time by:
A. contacting Customer Support; or
B. making a Card request via the Spend Dashboard.
20.2 Card replacements are subject to the Card Replacement Fee.
20.3 Upon activation and until the expiry date shown on your Card, your Card may be used to access your Account for the purpose of making purchases and withdrawals at ATMs. You may close your Account at any time prior to your Card expiration by contacting Customer Support.
20.4 Your Card cannot be used at merchants or ATMs after the expiry date. Should we be unable to contact you based on our records of your contact information six (6) months or more after the expiry date of your Card, you acknowledge and agree that we may hold your Usable Balance in accordance with Applicable Laws. Your Usable Balance will be held in your Default Wallet, with amounts in any other Currency Wallets converted at the then applicable Exchange Rate.
20.5 At your option, you may choose to close your Account and obtain a refund of your Usable Balance. Upon closure of your Account, you may be asked to destroy or return the Card to us. The Card linked to your Account will nevertheless be automatically cancelled by us.
21. TERMINATION OF THESE CARD TERMS
21.1 You acknowledge that we may restrict, withhold or suspend the use of your Account and/or Card or terminate these Card Terms immediately, without prior notice under any of the following circumstances:
A. your use of the Card and/or Account has, or we reasonably believe it has, breached any Applicable Laws or these Card Terms;
B. we suspect any illegal or unauthorized use of your Account or Card;
C. you gave us, or we reasonably suspect that you have given to us false or inaccurate information (including KYC Information);
D. in the case of a suspension, where necessary for relocating, replacing, maintaining, updating or repairing the software or hardware facilities of Spend or the Card Issuer;
E. here the Card and Account functions cannot be operated normally by Spend or Card Issuer due to a Force Majeure Event, or due to acts or omissions of third parties (including service providers of Spend and/or Card Issuer) which are not otherwise caused (whether directly or indirectly) by Spend and/or Card Issuer;
E. we believe that your Account has been or is likely to be misused or compromised;
F. where the continued use of your Account or the Card may cause Spend or Card Issuer to be in breach of any Applicable Laws (including, without limitation, laws relating to anti-money laundering and combating the financing of terrorism);
G. you no longer satisfy the eligibility requirements set out in Clause 2.10 of Section 2 of these Terms; or
H. we reasonably believe that your Card, Account, PIN, or Spend Dashboard is being used in a way that may cause, whether directly or indirectly, losses to you or us.
21.2 Without limiting the foregoing, in the event of a suspension of your use of your Card and the corresponding Account, you agree that we may hold your Usable Balance pending the outcome of any investigations in connection with the provision of our services, and that we may also disclose information relating to your breach or suspected breach to such law enforcement or other authorities as we may deem necessary. You acknowledge that our decision to take certain actions, including termination and limiting access to your Card and/or Account, may be based on confidential criteria that is essential to our management of risk, the security of all our customers and the integrity of our system. You agree that we are under no obligation to disclose the details of our risk management or security procedures to you.
21.3 Without prejudice to Clause 21.2 above, you agree that we may close your Account and terminate these Card Terms without reason by giving you at least thirty (30) days’ prior notice.
21.4 You may also terminate your Card (and the Account) by giving us notice thereof in writing sent via email to our Customer Support team or by requesting for such termination via the Spend Dashboard. Upon termination of your Card, you must (where possible) cut the relevant Card in half through the chip and magnetic stripe and cease all usage of the Card. You will pay such fees as we may from time to time specify with respect to such termination.
21.5 Where we exercise our right of termination under Clause 21.1, you will be entitled to a refund of any Usable Balance on your Account in accordance with these Card Terms.
22. RETURN OF UNUSED BALANCE
If you would like to obtain a complete refund of the total amount of Usable Balance left in your Account at any time, please contact Customer Support.
23. UNAUTHORIZED TRANSACTIONS
23.1 To block and/ or suspend your Account you must promptly notify us via Customer Support or log on to your Spend Dashboard if you believe any of the following has occurred:
A. your Account is hacked, misused or compromised;
B. any of your Cards is lost or stolen;
C. any of your Cards is damaged or not working properly;
D. any of your Cards is retained by an ATM; or
E. the security of your PIN or password are compromised in any way.
23.2 Upon our receipt of your notification of any of the events above, we will suspend your Card and/or Account and prevent any further transactions from being made using your lost, stolen or compromised Card and/or Account, until appropriate measures are taken to replace your Card and/or restore security to your Account.
23.3 You will not be liable for any unauthorised transactions made using your Card or Account after we have been notified of the loss/theft or compromise of your Card or Account in accordance with this Clause after you have blocked the use of the Card or Account (as applicable). However, you shall be liable for all transactions carried out before we are notified of such loss/theft or before you block the use of your Card or Account, even if such transactions were carried out without your authorisation.
You shall fully indemnify and hold Spend, Card Issuer, and each of their respective officers, directors, employees, partners and agents (“Indemnitees”) harmless from and against any and all damages, awards, expenses, losses, claims, actions, liabilities, penalties, costs and/or demands (including statutory liability and liability to third parties, economic loss, accounting fees, and court and legal costs assessed on a solicitor-client basis), suffered or incurred by any of the Indemnitees arising whether directly or indirectly from your:
A. act, omission, negligence, wilful default, mistake, misconduct, dishonesty or fraud (including any theft or loss of your Card and/or Account, or any fraud or misuse in relation thereto)
B. breach of these Card Terms
C. breach of any Applicable Laws, or any contractual or fiduciary obligations;
D. access and use of the Spend Dashboard, your Card and/or Account (or any access and use referable to your PIN and passwords)
E. payment and/or ATM cash withdrawal instructions, and/or our acting in good faith and taking or refusing to take action based thereon; an
F. violation of any rights of any person or entity.
Your Card(s), the corresponding Accounts, and the Spend Dashboard are provided to you “as is”, “as available”, without warranty of any kind, whether express or implied (including any implied warranty of merchantability or satisfactory quality, fitness for a particular purpose, compliance with any description, non-infringement, or any implied warranty arising from course of performance, course of dealing, usage of trade or otherwise, all of which are expressly disclaimed).OUR SERVICES AND CONTENT ARE PROVIDED BY US (AND OUR LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF OUR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Without limiting the foregoing, we do not warrant:
A. that the services provided to you under these Card Terms will be error-free, virus-free or free from other invasive or damaging code, or that defects therein will be corrected
B. that the operation of the services (any information transmitted by you thereby) will be uninterrupted, continuous, or secure;
C. that any information we provide to you on the Spend Dashboard will be correct, accurate, complete, reliable or fit for purpose; and/o
D. that the use of your Card(s), the corresponding Accounts and/or that the Spend Dashboard will not give rise to any liability at law or under contract.
25. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL WE (OR OUR LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR
- ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO US IN CONNECTION WITH OUR SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
27. CHOICE OF LAW; ARBITRATION
You agree that these Terms are governed by and will be construed under the laws of the Province of Ontario, without regard to the conflicts of laws provisions thereof. You also agree that any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Ontario, Canada in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Ontario, Canada. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND SPEND.COM ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
28. LOSS OF SERVICE
Our Services are provided “as is” and without warranty. You acknowledge and agree that from time to time, our Services may be delayed, interrupted or disrupted for an indeterminate period of time. Such events may include, without limitation: server updates, software updates, power outages, equipment malfunctions, natural disasters, attacks on infrastructure by hackers or terrorists, and interruptions or delays in transmission by your telecommunications carrier. We and our affiliates are not liable for any claim arising from any such delay, interruption, disruption or similar failure. In no event will we or our affiliates be liable for indirect, consequential or special damages, including lost profits, arising from your use of our Service, even if such damages were reasonably foreseeable and notice was given regarding them. These limitations will apply to all causes of action, whether arising from breach of contract, tort (including negligence) or any other legal theory.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with our Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Spend.com agree that these Terms are the complete and exclusive statement of the mutual understanding between you and us, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Spend.com, and you do not have any authority of any kind to bind us in any respect whatsoever. Except as expressly set forth in the section below regarding the Apple specific terms and conditions, you and Spend.com agree there are no third party beneficiaries intended under these Terms.