Shopper Terms and Conditions.
These terms outline the rules and regulations for the use of Blackcart's services.
Last Updated: December 29, 2023
PLEASE READ THE USER AGREEMENT CAREFULLY. BY ACCESSING THE BLACKCART WEBSITE OR USING THE BLACKCART SERVICE, YOU AGREE TO BY BOUND BY THE BLACKCART USER AGREEMENT AND THE BLACKCART PRIVACY POLICY. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THE BLACKCART WEBSITE OR USE THE BLACKCART SERVICE. PLEASE KEEP A COPY OF THE AGREEMENT FOR YOUR RECORDS.
By choosing to checkout with try before you buy for qualified consumer goods (“Order”) from a participating merchant (“Merchant”) with Blackcart, you agree to the terms in the Blackcart User Agreement (“Agreement”). The following terminology applies to the Blackcart User Agreement: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the terms of service in the Blackcart User Agreement, “Ourselves”, “We”, “Our” and “Us” refers to our Company. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
Changes to this Agreement.
Blackcart may unilaterally decide to change this Agreement from time to time, provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes. Additionally, YOU AGREE TO ACCEPT ANY CHANGES TO THIS AGREEMENT BY USING THE BLACKCART SERVICES AFTER CHANGES HAVE BEEN POSTED. If Blackcart makes any changes to this Agreement that it deems to be material, Blackcart will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to our website from time to time to see if it has been changed.
Eligibility.
Blackcart and its services are intended solely for Clients who are natural persons, sixteen (16) years of age or older. However, if law requires that you must be older in order for Blackcart to lawfully provide the services to you without parental consent (including using of your personal data) then the minimum age is such older age. By using Blackcart or accessing this website, you represent and warrant that you are eligible to do so. We must also be able to verify your identity.
Services Description.
Blackcart can be used to try items before buying them when shopping online with Blackcart merchants. The Service is designed to offer people the opportunity to pick out their own items and try them in the privacy of their own home before committing to purchase. A BlackCart merchant will send a limited number of items (“shipment”). Once you check out, an account is automatically created for you to view your orders and updated information. With each shipment, you have a certain number of days (the “try period”) after it is delivered to review the selection of items and try them. We charge you for all items not returned in accordance with the Return Policy, below, at the end of the try period, although we may bill you earlier in certain circumstances (for example, if you return item(s) from your shipment before the try period is over, if you request us to, if we have reason to believe that the order is fraudulent, if there has been a pattern of credit issues, or if we notify you that we will do so). For more details about the Service, please see https://blackcart.com/how-it-works.
You may suspend your account at any time by contacting BlackCart customer support at support@blackcart.com.
Promise to pay.
The Agreement governs your repayment to us in connection with funds we disbursed at your direction and on your behalf to an approved merchant to acquire certain merchandise or services that you selected to Try Before You Buy. The amount due will include all items you purchase from the merchant plus shipping and handling and any other fees or charges by the Merchant, less any items you decide to send back to the Merchant (the “final purchase price”). You promise to pay Blackcart the total value of the final purchase price on or shortly after the expiration of the try period. To make this payment, you authorize Blackcart to charge the Bank Card you provide in connection with the Order transaction or any substitute Bank Card you may provide Blackcart. In the event that Blackcart’s charge to a Bank Card fails, you authorize Blackcart to continue attempting to charge any Bank Card until such charge is successful. In the event that you close a Bank Card, report it as lost or stolen or know that Blackcart’s charge to the Bank Card will fail, you agree to immediately provide Blackcart with a substitute Bank Card.
Fees.
There are no finance charges, late fees, NSF fees or interest associated with this Agreement.
Approval.
All purchase order requests are subject to our approval. We may, in our sole discretion, not approve your order request.
Returns Policy.
You may return any qualifying item from your shipment you receive through our service (in accordance with instructions provided with your shipment) within the try period. Any items returned must be in their original condition and include all tags and packaging. If no action is taken, you will be charged for all items in your order.
Any returns or exchanges after the try period is a matter between you and the Merchant. You will need to contact the Merchant directly.
Delinquency and Default.
If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent. If you are delinquent, have filed or have instituted against you bankruptcy or insolvency proceedings or are in breach of any other material term of this Agreement, we may, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder. If you fail to make a payment required under this Agreement, collection proceedings may be initiated to collect your outstanding owed amount which may include contacting you, the assignment of your balance to a third party collections agency, reporting negative information to the credit reporting agencies. Blackcart also reserves the right to limit, restrict, suspend or terminate your access to Blackcart services.
Authorization.
As part of our approval process and our assessment as to whether or not you have the ability to fulfill your obligation to pay when due all amounts owed under this Agreement, we reserve the right to conduct an authorization of your Payment Method. This is not a transaction, only a verification of funds availability. Once the trial period is complete, your Payment Method will be charged for the items kept and the authorization will be canceled. After we cancel the authorization, it may take your bank one to two business days to process the cancelation and make your funds available.
Transfers or Assignments.
We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. To the extent permitted by applicable law, you hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.
Complaints and Disputes.
If you have a complaint with us arising out of or related to this Agreement, you should contact us at support@blackcart.com. If you have a complaint arising out of the delivery or quality of the goods you have purchased, you should contact the merchant using the details posted on the merchant’s website. You acknowledge and agree that Blackcart is not responsible for resolving disputes you may have with merchants. If you wish to submit a general complaint to us, you should do so by contacting us at support@blackcart.com. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving all complaints and disputes.
Arbitration Agreement.
(a) To expedite resolution and to minimize the cost of any claims and disputes arising out of or relating to this Agreement (“Dispute(s)”), we both agree to attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Blackcart account. Our address for such Notices is: Blackcart 510 Front Street West, Unit 400, Toronto Ontario M5V 1B6 , Attention: Legal, or by email to support@blackcart.com. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, to help us to evaluate the Dispute and to attempt to resolve it. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, to help you to evaluate the Dispute and to attempt to resolve it. If the informal negotiations are successful, no further action is necessary.
(b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, WITHIN THIRTY (30) DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION BY A SOLE ARBITRATOR. THE ARBITRATOR SHALL HAVE THE JURISDICTION TO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY (COLLECTIVELY, “ARBITRABILITY” ISSUES).
(c) The arbitration will be seated in the Toronto, Canada and shall be conducted under the rules of the International Centre for Dispute Resolution (the “ICDR”) in accordance with its International Arbitration Rules (the “ICDR Rules”) which are available on the ICDR’s website www.icdr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the ICDR Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
(d) The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any legal proceeding to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any legal proceeding to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Notwithstanding the foregoing, either party may assert claims, if they qualify, in small claims court in any jurisdiction in Canada in which you live or work.
(e) You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents.
(f) NOTWITHSTANDING THE FOREGOING, YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO THE FOLLOWING ADDRESS: Blackcart 510 Front Street West, Unit 400, Toronto Ontario M5V 1B6or by electronic mail at support@blackcart.com, Attention: Legal, and include (i) your name, (ii) your address, (iii) your telephone number, (iv) your email address and (v) a clear statement indicating that you do not wish to resolve claims through arbitration. If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.
Applicable Law and Jurisdiction.
This Agreement shall be governed by the laws of the Province of Ontario without regard to its conflict of law’s provisions. You agree to reasonably cooperate with Blackcart to serve as a reference account upon request.
No Warranties; Limitation of Liability.
Blackcart shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Blackcart or by third-party providers, or because of other causes beyond Blackcart’s reasonable control, but Blackcart shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, BLACKCART DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BLACKCART AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MERCHANT TO BLACKCART FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BLACKCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
No Liability for the Purchase Transaction.
You acknowledge that Blackcart is not engaged in the sale of any goods you purchase from a merchant and that we do not have control of and are not responsible or liable for such products. You agree that we shall have no liability whatsoever caused by a merchant’s delay in providing the goods or the quality of the goods.
Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Marketing.
(a) Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text.
(b) You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about purchase order request, this Agreement and/or your account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.
(c) By signing this Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Agreement and your Blackcart account. You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
(d) If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us at support@blackcart.com. Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you fail to provide or if you withdraw your consent to receive SMS communications as set forth in this section, Blackcart reserves the right to restrict, deactivate or close your Account and you agree that you may be prevented from using Blackcart in the future.
(e) You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements. You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.
Updating your Information.
You agree that it is your responsibility to notify Blackcart of any changes to your primary email address, phone number, or any other contact information so that Blackcart can communicate with you electronically. You agree that Blackcart is not responsible for any delay or failure in your receipt of any Disclosure, text message or email notice that is not caused by Blackcart's failure to send such a Disclosure or notice to the phone number or email address you have provided to us. We will not assume liability for non-receipt of notification of availability of electronic Documents in the event your mobile number, email address or other contact information on file is invalid; your email or Internet service provider filters the notification as "spam" or "junk mail"; there is a malfunction in your computer, mobile device, browser, Internet service, mobile connectivity and/or software; or for other reasons beyond our control.
It is your responsibility to provide us with true, accurate and complete mobile number, e-mail address, contact, and other information related to the Blackcart Services, and to maintain and update promptly any changes in this information. To update your information, contact customer support at support@blackcart.com.
Termination.
You agree that Blackcart, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Blackcart believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Blackcart may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Blackcart may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Blackcart will not be liable to you or any third-party for any termination of your access to the Service.
Statute of Limitations.
You and Blackcart both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, Terms of Service or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
PLEASE READ THE USER AGREEMENT CAREFULLY. BY ACCESSING THE BLACKCART WEBSITE OR USING THE BLACKCART SERVICE, YOU AGREE TO BY BOUND BY THE BLACKCART USER AGREEMENT AND THE BLACKCART PRIVACY POLICY. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THE BLACKCART WEBSITE OR USE THE BLACKCART SERVICE. PLEASE KEEP A COPY OF THE AGREEMENT FOR YOUR RECORDS.
By choosing to checkout with try before you buy for qualified consumer goods (“Order”) from a participating merchant (“Merchant”) with Blackcart, you agree to the terms in the Blackcart User Agreement (“Agreement”). The following terminology applies to the Blackcart User Agreement: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the terms of service in the Blackcart User Agreement, “Ourselves”, “We”, “Our” and “Us” refers to our Company. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
Changes to this Agreement.
Blackcart may unilaterally decide to change this Agreement from time to time, provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes. Additionally, YOU AGREE TO ACCEPT ANY CHANGES TO THIS AGREEMENT BY USING THE BLACKCART SERVICES AFTER CHANGES HAVE BEEN POSTED. If Blackcart makes any changes to this Agreement that it deems to be material, Blackcart will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to our website from time to time to see if it has been changed.
Eligibility.
Blackcart and its services are intended solely for Clients who are natural persons, sixteen (16) years of age or older. However, if law requires that you must be older in order for Blackcart to lawfully provide the services to you without parental consent (including using of your personal data) then the minimum age is such older age. By using Blackcart or accessing this website, you represent and warrant that you are eligible to do so. We must also be able to verify your identity.
Services Description.
Blackcart can be used to try items before buying them when shopping online with Blackcart merchants. The Service is designed to offer people the opportunity to pick out their own items and try them in the privacy of their own home before committing to purchase. A BlackCart merchant will send a limited number of items (“shipment”). Once you check out, an account is automatically created for you to view your orders and updated information. With each shipment, you have a certain number of days (the “try period”) after it is delivered to review the selection of items and try them. We charge you for all items not returned in accordance with the Return Policy, below, at the end of the try period, although we may bill you earlier in certain circumstances (for example, if you return item(s) from your shipment before the try period is over, if you request us to, if we have reason to believe that the order is fraudulent, if there has been a pattern of credit issues, or if we notify you that we will do so). For more details about the Service, please see https://blackcart.com/how-it-works.
You may suspend your account at any time by contacting BlackCart customer support at support@blackcart.com.
Promise to pay.
The Agreement governs your repayment to us in connection with funds we disbursed at your direction and on your behalf to an approved merchant to acquire certain merchandise or services that you selected to Try Before You Buy. The amount due will include all items you purchase from the merchant plus shipping and handling and any other fees or charges by the Merchant, less any items you decide to send back to the Merchant (the “final purchase price”). You promise to pay Blackcart the total value of the final purchase price on or shortly after the expiration of the try period. To make this payment, you authorize Blackcart to charge the Bank Card you provide in connection with the Order transaction or any substitute Bank Card you may provide Blackcart. In the event that Blackcart’s charge to a Bank Card fails, you authorize Blackcart to continue attempting to charge any Bank Card until such charge is successful. In the event that you close a Bank Card, report it as lost or stolen or know that Blackcart’s charge to the Bank Card will fail, you agree to immediately provide Blackcart with a substitute Bank Card.
Fees.
There are no finance charges, late fees, NSF fees or interest associated with this Agreement.
Approval.
All purchase order requests are subject to our approval. We may, in our sole discretion, not approve your order request.
Returns Policy.
You may return any qualifying item from your shipment you receive through our service (in accordance with instructions provided with your shipment) within the try period. Any items returned must be in their original condition and include all tags and packaging. If no action is taken, you will be charged for all items in your order.
Any returns or exchanges after the try period is a matter between you and the Merchant. You will need to contact the Merchant directly.
Delinquency and Default.
If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent. If you are delinquent, have filed or have instituted against you bankruptcy or insolvency proceedings or are in breach of any other material term of this Agreement, we may, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder. If you fail to make a payment required under this Agreement, collection proceedings may be initiated to collect your outstanding owed amount which may include contacting you, the assignment of your balance to a third party collections agency, reporting negative information to the credit reporting agencies. Blackcart also reserves the right to limit, restrict, suspend or terminate your access to Blackcart services.
Authorization.
As part of our approval process and our assessment as to whether or not you have the ability to fulfill your obligation to pay when due all amounts owed under this Agreement, we reserve the right to conduct an authorization of your Payment Method. This is not a transaction, only a verification of funds availability. Once the trial period is complete, your Payment Method will be charged for the items kept and the authorization will be canceled. After we cancel the authorization, it may take your bank one to two business days to process the cancelation and make your funds available.
Transfers or Assignments.
We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. To the extent permitted by applicable law, you hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.
Complaints and Disputes.
If you have a complaint with us arising out of or related to this Agreement, you should contact us at support@blackcart.com. If you have a complaint arising out of the delivery or quality of the goods you have purchased, you should contact the merchant using the details posted on the merchant’s website. You acknowledge and agree that Blackcart is not responsible for resolving disputes you may have with merchants. If you wish to submit a general complaint to us, you should do so by contacting us at support@blackcart.com. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving all complaints and disputes.
Arbitration Agreement.
(a) To expedite resolution and to minimize the cost of any claims and disputes arising out of or relating to this Agreement (“Dispute(s)”), we both agree to attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Blackcart account. Our address for such Notices is: Blackcart 510 Front Street West, Unit 400, Toronto Ontario M5V 1B6 , Attention: Legal, or by email to support@blackcart.com. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, to help us to evaluate the Dispute and to attempt to resolve it. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, to help you to evaluate the Dispute and to attempt to resolve it. If the informal negotiations are successful, no further action is necessary.
(b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, WITHIN THIRTY (30) DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION BY A SOLE ARBITRATOR. THE ARBITRATOR SHALL HAVE THE JURISDICTION TO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY (COLLECTIVELY, “ARBITRABILITY” ISSUES).
(c) The arbitration will be seated in the Toronto, Canada and shall be conducted under the rules of the International Centre for Dispute Resolution (the “ICDR”) in accordance with its International Arbitration Rules (the “ICDR Rules”) which are available on the ICDR’s website www.icdr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the ICDR Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
(d) The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any legal proceeding to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any legal proceeding to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Notwithstanding the foregoing, either party may assert claims, if they qualify, in small claims court in any jurisdiction in Canada in which you live or work.
(e) You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents.
(f) NOTWITHSTANDING THE FOREGOING, YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO THE FOLLOWING ADDRESS: Blackcart 510 Front Street West, Unit 400, Toronto Ontario M5V 1B6or by electronic mail at support@blackcart.com, Attention: Legal, and include (i) your name, (ii) your address, (iii) your telephone number, (iv) your email address and (v) a clear statement indicating that you do not wish to resolve claims through arbitration. If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.
Applicable Law and Jurisdiction.
This Agreement shall be governed by the laws of the Province of Ontario without regard to its conflict of law’s provisions. You agree to reasonably cooperate with Blackcart to serve as a reference account upon request.
No Warranties; Limitation of Liability.
Blackcart shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Blackcart or by third-party providers, or because of other causes beyond Blackcart’s reasonable control, but Blackcart shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, BLACKCART DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BLACKCART AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MERCHANT TO BLACKCART FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BLACKCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
No Liability for the Purchase Transaction.
You acknowledge that Blackcart is not engaged in the sale of any goods you purchase from a merchant and that we do not have control of and are not responsible or liable for such products. You agree that we shall have no liability whatsoever caused by a merchant’s delay in providing the goods or the quality of the goods.
Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Marketing.
(a) Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text.
(b) You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about purchase order request, this Agreement and/or your account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.
(c) By signing this Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Agreement and your Blackcart account. You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
(d) If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us at support@blackcart.com. Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you fail to provide or if you withdraw your consent to receive SMS communications as set forth in this section, Blackcart reserves the right to restrict, deactivate or close your Account and you agree that you may be prevented from using Blackcart in the future.
(e) You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements. You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.
Updating your Information.
You agree that it is your responsibility to notify Blackcart of any changes to your primary email address, phone number, or any other contact information so that Blackcart can communicate with you electronically. You agree that Blackcart is not responsible for any delay or failure in your receipt of any Disclosure, text message or email notice that is not caused by Blackcart's failure to send such a Disclosure or notice to the phone number or email address you have provided to us. We will not assume liability for non-receipt of notification of availability of electronic Documents in the event your mobile number, email address or other contact information on file is invalid; your email or Internet service provider filters the notification as "spam" or "junk mail"; there is a malfunction in your computer, mobile device, browser, Internet service, mobile connectivity and/or software; or for other reasons beyond our control.
It is your responsibility to provide us with true, accurate and complete mobile number, e-mail address, contact, and other information related to the Blackcart Services, and to maintain and update promptly any changes in this information. To update your information, contact customer support at support@blackcart.com.
Termination.
You agree that Blackcart, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Blackcart believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Blackcart may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Blackcart may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Blackcart will not be liable to you or any third-party for any termination of your access to the Service.
Statute of Limitations.
You and Blackcart both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, Terms of Service or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
