Take 5 Payment Plan Agreement (Canada)
Last Updated: November 2, 2020
The following terms and conditions apply to the Take 5 Payment Plan Agreement (the "Agreement") entered into between Scratch Financial, Inc. ("Scratchpay," "we," "us" or "our") and you, the user of the Scratchpay Take 5 Payment Plan (the "Plan"). Please read this Agreement carefully. By accepting this Agreement, you acknowledge having received, read and understanding the following terms and conditions and agreeing to be bound by the Agreement. If you DO NOT agree to the terms and conditions that follow, you must not use the Plan. Additional details regarding the terms of your Plan will be sent to you in a welcome email ("Welcome Email"). The Welcome Email is incorporated into and forms part of this Agreement. This Agreement is a contract between you and Scratchpay and imposes rules, obligations and other responsibilities on you in respect of your use of the Plan.
HOW THE PLAN WORKS:
- The Plan allows you to pay for the goods or services you purchase from authorized clinics, merchants and other providers (each a "Provider") with a series of payments over time.
- You must be at least the age of majority in the Canadian province or territory in which you reside, be capable of entering into a legally binding contract and be the authorized holder of an eligible debit/credit card to apply (prepaid cards are not accepted).
- We pay the Provider on your behalf for the goods or services you purchase, and you agree to repay those amounts to Scratchpay in accordance with this Agreement and the specific terms and related disclosures provided to you at the time of purchase which form part of this Agreement.
- The quality of the goods or services purchased using the Plan and any refunds are the responsibility of the Provider you make the purchase from and not Scratchpay. If goods or services you have purchased using the Plan are not provided within thirteen (13) days of purchase, we will promptly refund to the payment method you provided any amounts that you have paid.
- You may not use or permit your Plan to be used for any unlawful purposes or to make any illegal transactions.
- The first payment is charged when you sign up for your Plan.
- There are no interest charges with the Plan, and no fees when you follow your automatic payment schedule. The issuer of your debit or credit card you use to repay us under the Plan may charge interest or fees under your agreement with them. If you have any questions about those charges, you agree to contact your card issuer directly.
- Annual Interest Rate: 0%
- Annual Percentage Rate: 0%
- Principal Amount: The approved Principal Amount will be set out in your Welcome Email.
- Cost of Borrowing: There is no cost of borrowing so the total of all the payments you make, assuming all payments are made when due, is the Principal Amount.
- Term: 8 weeks
- Payment Schedule: 1/5th of Principal Amount due upon application approval, with four (4) more payments of 1/5th each coming due every fourteen (14) days thereafter. The exact amount and the due dates of your payments will be set out in your Welcome Email.
- Returned Payment/Dishonored Payment Fee: the lesser of: (i) $25.00 or (ii) 25% of Principal Amount, for each payment that is returned to us for any reason
Description of the Plan:
The Plan gives you the option to pay for your purchase with a credit or debit card (the "Card") in five (5) payments. Payments will be made directly to Scratchpay using your Card. Scratchpay does not charge you any interest to use the Plan, but the issuer of your Card may charge interest or other fees under the terms of your Card agreement.
When you sign up for a Plan, the total amount of the payments under the Plan (the "Plan Amount") is based on the estimated amount of your purchase. The final amount of your Plan is the amount reported by your Provider to Scratchpay after the goods have been delivered or the services have been rendered. By signing up for a Plan, you direct us to pay the Provider on your behalf in exchange for your agreement and obligation to repay us in accordance with this Agreement the Plan Amount on the dates outlined in your Welcome Email.
We will charge your Card for the first payment (1/5th of the Plan Amount) at the time you sign up for the Plan, and we will automatically charge your Card for the next four (4) payments every fourteen (14) days after that, according to your scheduled due dates for payments (each a "Due Date"). You can prepay the entire amount outstanding without charge or penalty and you can make partial prepayments any time before the scheduled Due Date. If you have more than one Plan, each Plan will have its own Due Dates.
If, after your first payment is charged, the Provider determines that the actual amount of your purchase is less than the initial Plan Amount, your first payment will remain the same, but we will reduce your next four (4) payments equally. For example, if your initial Plan Amount is $1,000, we will charge $200 to your Card at the time you sign up for the Plan and we will then charge your Card four (4) payments of $200 each every fourteen (14) days after that. If the Provider subsequently determines that the actual amount of your purchase is only $500, your first payment of $200 will remain, but we will reduce your next four (4) payments to $75 each.
If the actual amount of your purchase is less than the amount of your first payment, we will refund you the difference by crediting the amount to your Card. The actual amount of your purchase will never be more than the estimated Plan Amount, so your subsequent payments will never be greater than the estimated payments. If goods or services you have purchased using the Plan are not provided within thirteen (13) days of purchase, we will promptly refund to the payment method you provided any amounts that you have paid.
Accepted Cards/Automatic Payments:
We may limit the types of Cards we accept at our discretion. Most valid credit and debit Cards that are scheduled to expire after the remaining repayment period are accepted. If a type of Card is not accepted you will be notified before the purchase is completed. We do not accept prepaid cards.
If we are unable to charge your selected payment method for the amount due on your Due Date, you will be in default (assuming your Due Date has not been extended as described below). Please ensure you have enough funds available on your Card to pay your outstanding balance by the Due Date. If you are in default, provisions under "Default" Section below will apply.
Returned Payment Fees:
If your payment is returned for reasons of insufficient funds or otherwise refused to be honored by your financial institution for any reason, we will charge you a returned payment fee as set out in the Key Terms.
Extending Due Date:
You have the option to extend the Due Date by an additional two (2) weeks. You can do this by emailing your request to [email protected]. If you choose to extend a Due Date, you will be charged a non-refundable $5 fee (an "Extension Fee"), which will be added to the amount due on the extended Due Date. When you extend a Due Date, any subsequent Due Date will also be extended by two (2) weeks. You may extend a Due Date only once with respect to a payment, and you may only use this option two (2) times for any Plan. The ability to extend your Due Date is offered at our discretion, and may not always be available. Extending a Due Date does not affect or limit your obligations, including your obligation to make the scheduled payments, under this Agreement.
Any returns or refunds credited to your purchase will reduce your outstanding balance. You will need to continue to make your previously disclosed payments on scheduled Due Dates until your balance is paid in full. If you have a credit balance, you authorize us to credit the balance back to (a) your designated payment method, or any other Card we have on file for you; (b) by cheque to your mailing address on file; or (c) by direct deposit to any of your bank accounts on file or stated on any cheque you presented to us for payment.
You will be in default if: (a) you fail to make any payment by the Due Date; (b) you become the subject of insolvency or bankruptcy proceedings; (c) you supply false, misleading, or incorrect information to us; (d) a payment is charged back or returned to us by your bank; or (e) you violate, fail to or are unwilling to comply with any provision of this Agreement.
If you are in default, Scratchpay may: (a) charge the outstanding balance owing under your Plan immediately, using any Card or payment method we have on file for you or by a separate invoice; (b) employ a debt collection agency to receive payment and you will have to pay all reasonable costs (including reasonable legal fees) incurred by Scratchpay and/or the debt collection agency; (c) report default information to credit bureaus; and (d) terminate your access to a Plan in the future.
Storing Card Details:
You authorize Scratchpay to store your Card details in our systems for the purposes of processing future payments. We will use this information to authorize future payments under this Agreement. You may not cancel or obtain a refund for any payments made under your Plan once the goods or services associated with the Plan have been supplied by the Provider. You agree that Scratchpay may obtain updated Card information from the Card issuer and that we may use and store this updated information to process payments. You may cancel your authorization by contacting us at [email protected] and providing alternative Card information, provided that the new Card has adequate balance for future payments.
Changes to this Agreement
Subject to applicable law, we may amend this Agreement at any time by providing an updated disclosure statement in writing within 30 days after the date of the amendment notice to you in accordance with applicable law.
You authorize Scratchpay to charge your Card (if the Card is a credit Card) or initiate preauthorized transfers from the account related to your Card (if your Card is a network branded debit Card) for each payment on its due date, and for any other amounts that may become owing under this Agreement. You agree these Terms will serve as your copy of your authorization for Scratchpay to initiate preauthorized transfers. We will provide notice within 2 days after each payment confirming that you have paid the amount listed in your payment schedule.
Alternate Payment Card
You may add an alternate Card as a payment method by calling our customer support team at 855-727-2395, subject to our approval. You agree to extend your consent under the "Storing Card Details" section to any such newly added Card. Please note that the new Card does not replace the original Card you presented to us as the payment method at the time you signed up for a Plan. If any payment is declined on the new Card, we reserve the right to charge the original Card we have on file. You may cancel your authorization on the original Card by calling our customer support team at 855-727-2395, only if your original Card is expiring, lost or stolen. You can also email us at [email protected] and ask us to reach out to you about adding an alternate Card, but please make sure not to include sensitive information, including your Card number, in your email.
You understand and agree that Scratchpay may, without further notice or warning and in our discretion, monitor or record telephone conversations with you or anyone acting on your behalf has with Scratchpay or its service provider or agents for quality control and training purposes or its protection. You acknowledge and understand that, while your communications with Scratchpay may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Scratchpay, and Scratchpay does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
No Liability for the Purchase Transaction:
You acknowledge that Scratchpay is not engaged in the sale of any goods or services supplied by any Provider and that we do not have control of and are not responsible or liable for such products or services. You agree that we shall have no liability whatsoever caused by a Provider's delay in providing the goods or services and/or the Provider's decision to not complete any purchase made using the Plan.
You agree to defend, indemnify and hold Scratchpay, our parent, affiliates and the officers, directors, agents, joint venturers, employees and suppliers of Scratchpay harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of the Scratchpay services, and/or your violation of any law or the rights of a third party.
No Guarantee of Approval:
We evaluate each request to participate in a Plan independently. Your participation in a Plan does not guarantee future Plan participation.
You may not transfer or assign any rights or obligations you have under this Agreement without Scratchpay's prior written consent. Scratchpay reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time, without your consent or notice, unless required under applicable law.
If you have a complaint relating to your Plan, you may contact us via email at [email protected] or by regular mail at Scratch Financial Inc., 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101, Attn: Take 5. If you have a complaint relating to the delivery or quality of the goods or services you purchased, you agree to contact the Provider directly. You acknowledge that Scratchpay is not responsible for resolving any disputes you may have with the Provider.
The place of this Agreement is deemed to be the address where you reside. This Agreement shall be governed by and constructed in accordance with the laws of the province or territory where you reside and the laws of Canada in effect in that province or territory. Subject to applicable law, if you and we cannot resolve any dispute, controversy or claim arising out of, or in connection with, or relating to, any aspect of the Plan or this Agreement (including, but not limited to, the formation, execution, validity, application, interpretation, performance, breach, termination or enforcement of this Agreement or our and your respective rights and obligations under this Agreement) ("Dispute") then, to the extent permitted by applicable law, any unresolved Dispute will be referred to final and binding arbitration to be resolved. The arbitration shall take place in Vancouver, British Columbia before a single arbitrator, and shall be conducted under the arbitration laws of British Columbia and pursuant to the Simplified Arbitration Rules of the ADR Institute of Canada (or any successor rules or legislation) (the "Rules") in force at the time the Dispute is submitted to arbitration. The language of the proceedings shall be English. Unless otherwise agreed to in writing, the Dispute will be heard by a single arbitrator who shall be appointed pursuant to the Rules. Once appointed, subject to applicable law, the arbitrator shall provide all necessary rules, orders, directions and decisions regarding all matters of procedure and conduct of the arbitration, including the conduct of the hearing, and you and we agree to be bound by all such rules, orders, directions and decisions of the arbitrator. The fact of the arbitration, the evidence, submissions and any arbitral award (including all documents, transcripts and other materials and information disclosed during the course of the arbitration) shall all be confidential and shall be used only for the purposes of the arbitration and, unless required by law, shall not be disclosed to any third party without the prior written consent of all parties to the arbitration. Any awards of the arbitrator will be final and binding upon you and us regarding all matters submitted to arbitration, with no rights of appeal on any grounds, even on questions of law. The arbitrator will have the authority to award pre- and/or post-judgment interest calculated from the date of the award on any sums awarded. You or we may have recognized and enforced any award rendered by the arbitrator in any court having jurisdiction. Subject to any award of the arbitrator, you and we agree to be responsible for your own legal fees and all other costs and expenses connected with the presentation of its own case and both parties agree to share equally the fees and expenses of the arbitrator. In the event that arbitration is not permitted under applicable laws, you and we submit to the jurisdiction of the courts of the province or territory where you reside and any other court having jurisdiction solely to enforce a judgment of a court of such province or territory. This provision shall survive termination of this Agreement.
Notwithstanding the terms of outlined above, either you or Scratchpay may at any time, apply to any court of competent jurisdiction for and receive interim or interlocutory injunctive or equitable relief in regard to any breach or threatened breach of this Agreement. You and Scratchpay agree to continue to perform all obligations hereunder while any dispute is resolved or until the Agreement is terminated, as applicable. The time frame for you or Scratchpay to cure any breach of the terms of the Agreement shall not be delayed or suspended pending the resolution of any dispute.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by applicable law.
The place of this Agreement is deemed to be the address where you reside. This Agreement shall be governed by and constructed in accordance with the laws of the province or territory where you reside and the laws of Canada in effect in that province or territory. For litigation arising from this Agreement, you and we submit to the jurisdiction of the courts of such province or territory and any other court having jurisdiction solely to enforce a judgment of a court of such province or territory.
Notices and Communications:
You (i) agree to receive this Agreement and all other communications regarding your Plan (including, but not limited to, any other agreements, notices, disclosures or other information we may send to you or that we may be required to send to you under applicable law) in electronic form; (ii) agree to retain copies of these communications for your records; and (ii) agree that any electronic disclosures have the same meaning and effect as if provided to you in writing, in paper form. Electronic communications will be sent to your email address or via your payment portal.
You agree that Scratchpay is not responsible for your failure to receive any disclosures or communications sent via email that is not caused by our failure to send such communications to the email address or contact details that you have provided to us. You understand and agree that, whether or not you choose to view the communication provided to you, any communication sent to you by email to your email address or using the contact details you provide to us from time to time will be considered received by you on the day after the day on which it is sent, unless we receive notification that delivery has failed. You agree to notify us promptly of any changes to your email address or other contact details so that you can continue to receive all communications from us in a timely manner.
If any provision of this Agreement is held by a court of competent jurisdiction to be prohibited by or invalid or unenforceable under applicable law, such provision will be ineffective only to the extent of such prohibition, invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement which shall be unaffected and remain in full force and effect.