Last updated: May 30, 2023
These Terms of Use (the “Agreement”) set forth a legally binding agreement between you and SMC Software Inc. (“SMC”).
By purchasing, using or accessing the Services or by visiting the Sites (each as defined below), you acknowledge that you have read and agree to be bound by this Agreement and agree to comply with all applicable laws with regard to your use of the Services and the Sites.
You represent that you have authority to bind yourself or any party you represent to this Agreement.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES OR THE SITES.
“Aggregated Statistics” means data and information related to your use of the Sites and Services that is used by SMC in an aggregated and anonymized manner, provided that any such data and information has been fully de-identified as to Your Content (as defined in Section 4) and does not identify you or any other individual person.
“Claims” means any and all manner of claims, demands, actions, suits, investigations or proceedings, including, without limitation, all rights with respect to any and all Losses.
“Losses” means any and all manner of losses, damages, fines, penalties, costs and expenses (including legal fees on a full indemnity basis), known or unknown, foreseeable or not foreseeable, liquidated or unliquidated.
“Services” means those services made available to you by SMC, including but not limited to SMC’s proprietary RefundPros software, training, and support.
“Sites” means SMC’s website located at: https://refundpros.com and all associated and successor URLs.
SMC will audit data from certain third party providers to determine whether you are eligible for a full or partial refund, credit, or replacement according to the third party providers’ policies. These third party providers include, without limitation, shipping carriers, third party logistics companies, and e-commerce service providers (collectively, “Third Party Providers”). SMC will submit refund requests on your behalf, and track and report to you on these requests.
Subject to the terms of this Agreement, when you sign up for the Services, SMC grants you a fee- bearing, non-exclusive, personal, non-transferable, non-sub-licensable and fully revocable limited right to access and use the Services during the Term, solely for your internal business purposes.
You agree to provide true, accurate, current and complete information about yourself and your accounts with Third Party Providers, including as prompted when registering (signing-up) for an account (the “User Account”). You must maintain and promptly update your User Account and Your Content (as defined in Section 4) to keep it true, accurate, current and complete.
You are responsible and liable for all activities occurring under your User Account and shall abide by all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You are responsible for maintaining the confidentiality of your username, password and all other sensitive, confidential or proprietary information relating to or used in connection with your User Account. You agree to notify SMC immediately of any unauthorized access to or use of your User Account or your username, password or other security information associated with your User Account, or any other breach of security by emailing us at support@refundpros.com SMC is in no way responsible for any Losses incurred by you or any third party as a result of any unauthorized access to and/or use of your User Account.
If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if SMC has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, SMC has the right to suspend or terminate your User Account and refuse current or future use of any or all of the Services. You may not register for or access the Services if you are a competitor of SMC or the Services, except with SMC’s express prior written consent. You may not use the User Account of another person, entity, customer, subscriber, company, or organization without the express prior written permission of SMC.
In order for SMC to provide the Services, you must provide SMC with information, data, passwords, usernames, PINs, other login information, materials and other content related to or maintained by Third Party Providers (“Your Content”).
By using the Services, including but not limited to, submitting Your Content:
Except as expressly permitted in this Agreement, you agree you will not (and will not allow any third party to): (i) rent, lease, copy, transfer, resell, sublicense, time-share, or otherwise provide access to the Sites or Services to a third party; (ii) alter, edit, modify or create derivative works of the Sites or Services or any portion of the Sites or Services; (iii) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to the Sites or Services; (iv) use the Sites or Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses; (v) interfere with or disrupt the integrity or performance of the Sites or Services or third-party data contained therein; (vi) attempt to gain unauthorized access to the Sites or Services or the related systems or networks; (vii) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit; (viii) access the Sites or Services for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Sites or Services in any manner that violates terms of this Agreement; or (x) remove or obscure any of SMC’s proprietary or other notices contained in the Sites or Services.
Personal information you provide to SMC through the Sites or Services is governed by SMC’s Privacy Policy and applicable laws related to personal information. Your election to use the Sites or Services indicates your acceptance of the terms of the then-current Privacy Policy. The current Privacy Policy can be viewed at https://refundpros.com/privacy.
The Services will include certain communications from SMC, such as service announcements, administrative messages, reports and e-newsletters. You understand that these communications are considered part of the Services. We also provide you the choice of opting-out from receiving e-newsletters and promotional e-mails from us.
There is no charge for the Services until a refund identified and submitted by the Services has been approved by the Third Party Provider. SMC will charge you a percentage of the refund amount confirmed by the Third Party Provider, as set out in your User Account (the “Fees”). Fees will be billed in Canadian or US Dollars (as applicable to you) and are subject to applicable local taxes. You are responsible for providing a valid credit card and for keeping your payment information up-to-date. You hereby authorize SMC, through its third party payment processor, to automatically charge your credit card the Fees every two weeks if any Fees are due.
SMC reserves the right at any time, in its sole discretion, to modify the Fees. You will be given reasonable advance notice and the opportunity to cancel the Services before such changes are implemented.
SMC is not responsible or liable for any changes to a Third Party Provider’s refund policies. However, in the event a Third Party Provider determines that a confirmed refund is ineligible for reimbursement, SMC may, in its sole discretion, offer you a refund of the applicable Fees.
SMC may terminate this Agreement and your rights under it, or suspend your access to the Sites or Services, without notice, at any time and for any reason, including but not limited to (i) any breach of the terms of this Agreement, including your failure to pay the Fees when due; or (ii) any use of the Sites or Services that, in SMC’s sole discretion, threatens the security, integrity or availability of the Sites or Services. You may cancel the Services and terminate your User Account by notifying SMC in writing at support@refundpros.ca.
In the event of termination of the Services by you or SMC for any reason: (i) SMC will deactivate your User Account and delete Your Content to the extent permitted or required by law; and (ii) all Fees will become immediately due and payable.
Sections 1, 5, and 11 - 15 of this Agreement, and all other sections that by their terms contemplate obligations intended to survive, shall survive in full force and effect notwithstanding any termination or expiry of this Agreement.
From time to time during the term of this Agreement, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information” ). Confidential Information does not include information that: (a) was already rightfully known to the receiving party at the time of disclosure by the disclosing party without any obligation of confidentiality; (b) is, or through no fault of the receiving party becomes, generally available to the public; (c) was rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as evidenced by appropriate records.
The receiving party will only use the disclosing party’s Confidential Information for the purposes of exercising its rights or performing its obligations under this Agreement. The receiving party will protect the Confidential Information from any unauthorized access, use or disclosure using the same degree of care that the receiving party uses to protect its own confidential information of a similar nature but in no event less than a reasonable degree of care. The receiving party may share the Confidential Information with its affiliates and its and their employees, contractors, officers, directors, agents and professional advisors (“Representatives”), provided they: (i) need to know the Confidential Information; and (ii) are bound to the receiving party by confidentiality obligations no less protective than those set out in this Agreement. The receiving party is responsible for any breach of this Agreement by its Representatives. The receiving party may disclose the Confidential Information if required by law, provided that the receiving party: (i) gives the disclosing party as much notice as possible prior to the disclosure to the extent practicable and permitted by law; and (ii) reasonably cooperates with the disclosing party, at the disclosing party’s cost, to seek a protective order or otherwise prevent disclosure.
The receiving party will delete all of the disclosing party’s Confidential Information in its possession, custody, or control within 30 days’ of a request by the disclosing party or automatically on 30 days of termination or expiration of this Agreement. However, the receiving party will not be obligated to erase Confidential Information that is contained in an archived computer system backup in accordance with its security and/or disaster recovery procedures or for archival or record retention purposes as required by applicable law, subject to compliance with the confidentiality obligations of this Agreement for so long as any such copies are retained.
To the extent that you have entered into a non-disclosure agreement with SMC in contemplation of this Agreement (“NDA”): (i) all Confidential Information disclosed under the NDA is deemed to have been disclosed under this Agreement; (ii) this Agreement is deemed to replace and supersede the NDA; and (iii) the NDA is hereby terminated.
As between SMC and you, you own all rights, title and interests in and to Your Content. You grant SMC a sublicensable, fully paid-up, transferable, non-exclusive, limited right to use Your Content as necessary to provide and improve the Services.
Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that SMC may (i) monitor your use of the Sites and Services; (ii) collect and compile Aggregated Statistics based on such use, including, without limitation, Your Content; and (iii) use such Aggregated Statistics in any manner, including, without limitation, to improve the Sites and Services.
SMC’s names, slogans, logos, trademarks, service marks, domain names, designations, the Sites, the Services, Aggregated Statistics, any and all related documentation, technology, code, know-how, and templates, and the arrangement and look and feel of the Sites and Services, and any updates, modifications or derivative works of any of the foregoing, (collectively the “SMC IP”) are SMC’s exclusive property. SMC retains all rights, title, and interests in and to the SMC IP. You acknowledge having been advised by SMC that the SMC IP is protected in Canada and internationally by applicable law including, but not limited to, copyright laws, trademark laws, treaty provisions and other intellectual property, confidential information and proprietary rights laws.
You acknowledge that: (i) the Sites and Services may not be in final form or fully functional and may contain defects, errors, design flaws or other problems, and (ii) use of the Sites and Services may result in unexpected results, loss of data or other unpredictable damage or loss to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITES AND SERVICES ARE MADE AVAILABLE ON AN “AS-IS”, “AS AVAILABLE”, “WHERE AS” AND “WITH ALL FAULTS” BASIS.
SMC EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY, QUALITY AND NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE.
SMC DOES NOT WARRANT THAT:
SMC AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (THE “SMC PARTIES”) ARE NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF THE SITES OR SERVICES AND YOU ACCEPT THAT YOUR ACCESS TO AND USE OF THE SITES OR SERVICES IS AT YOUR SOLE RISK AND EXPENSE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE SMC PARTIES RELATED TO ANY OF THE SERVICES IS TERMINATION OF THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE AND FOREVER DISCHARGE THE SMC PARTIES FROM ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SITES, OR THE SERVICES, OF ANY NATURE OR KIND WHATSOEVER, AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER), THAT YOU NOW HAVE OR IN FUTURE MAY HAVE, EVEN IF SMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR LOSSES.
IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISION OF THE SITES AND SERVICES UNDER THIS AGREEMENT DO NOT INCLUDE ANY ASSUMPTION OF RISK OR LIABILITY BY THE SMC PARTIES FOR ANY LOSSES. YOU FURTHER AGREE AND ACKNOWLEDGE THAT YOUR ACCESS TO AND USE OF THE SITES AND SERVICES IS CONDITIONAL ON THE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, INCLUDING THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SPECIFIED HEREIN. IT IS AGREED AND ACKNOWLEDGED THAT THE FUNDAMENTAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT AND FOR USE OF THE SITES AND SERVICES BETWEEN YOU AND SMC AND EACH HAS RELIED ON THIS ALLOCATION AND LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT.
THIS LIMITATION UPON CLAIMS AND LOSSES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
NOTWITHSTANDING THE ABOVE, IF ANY OF THE SMC PARTIES ARE FOUND LEGALLY RESPONSIBLE TO YOU FOR ANY LOSSES YOU MAY HAVE SUFFERED ARISING IN CONNECTION WITH THE YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE SITES OR SERVICES, THEN THE SMC PARTIES’ AGGREGATE LIABILITY TO YOU WILL NOT EXCEED THE GREATER OF: (I) THE FEES SMC ACTUALLY RECEIVED FROM YOU FOR THE SERVICES DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH LIABILITY AROSE; AND (II) FIVE HUNDRED DOLLARS CANADIAN ($500 CAD).
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE SMC PARTIES FROM AND AGAINST ALL CLAIMS OF THIRD PARTIES (INCLUDING BUT NOT LIMITED TO THIRD PARTY PROVIDERS) BROUGHT AGAINST, AND ALL LOSSES, OF WHATEVER NATURE INCURRED OR SUFFERED BY, ANY OF THE SMC PARTIES ARISING FROM OR IN ANY WAY RELATED TO: (I) YOUR USE OF OR RELIANCE ON THE SITES OR SERVICES; (II) YOUR CONTENT; (III) SMC RELYING ON OR ACTING PURSUANT TO THE AUTHORIZATIONS; AND (IV) YOUR BREACH OF THIS AGREEMENT.
SMC reserves the right, at its own expense, to assume exclusive defence and control of any matter subject to indemnification by you. You agree to provide all assistance as SMC may reasonably request in defence of any such Claims.
SMC may, acting in its sole discretion and without notice to you, change the terms of this Agreement from time to time (“Changes”). You agree to visit the Sites and review this Agreement periodically to ensure you are familiar with the current version in force, and your continued use of the Sites or Services constitutes your acceptance of the Changes.
This Agreement constitutes the entire agreement between you and SMC related to the subject matter of this Agreement and supersedes all prior or contemporaneous understandings, agreements, and representations and warranties, both written and oral, related to the subject matter of this Agreement. Except as provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except with the written consent of the Company.
Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, SMC may assign its rights and obligations to an acquirer of all or substantially all of its business assets in connection with merger, corporate reorganization, or like corporate transaction. This Agreement is binding on and will enure to the benefit of the parties and their respective permitted successors and assigns.
Each section of this Agreement is distinct and severable. If any section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that section, in whole or in part, will not affect: (i) the legality, validity or enforceability of the remaining sections of this Agreement, in whole or in part; (ii) the legality, validity or enforceability of the remaining part of that section, if applicable; or (iii) the legality, validity or enforceability of that section, in whole or in part, in any other jurisdiction.
This Agreement is governed by and is to be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law rule in any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. The parties accept and submit to the exclusive jurisdiction of the federal or provincial courts located in Vancouver, British Columbia, Canada (except that SMC may seek injunctive relief to prevent improper or unauthorized use or disclosure of any SMC IP in any court of competent jurisdiction).
EACH PARTY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees on a full indemnity basis.
If you have questions or wish to get in touch, please contact SMC using the form on the Contact Us page.