Last updated: May 1, 2017
Please read this Agreement before purchasing a product or service using the Health Smart Services (as defined below).
This End User Agreement (“Agreement”) is a legal agreement between you (“you” or “your”) and Health Smart Financial Services Inc., including its partners, affiliates, agents or assigns (“Health Smart”, “we”, “us” or “our”).
This Agreement sets out the terms and conditions of:
For the purposes of this Agreement, unless stated otherwise, the following words shall have the following meanings:
“Health Smart Platform” shall mean the Websites, any microsite of Health Smart within the Merchant’s website, the loan system of Health Smart accessed via the sales computers or other browsing computers, including tablets and mobile devices, at the Merchant’s premises, and other sales channels which allow the Merchant and Health Smart to communicate from time to time, including telephone.
“Intellectual Property Rights” shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part.
“Merchant(s)” shall mean the merchant(s) Health Smart is affiliated with and from which you purchase the Product.
“Product” shall mean the product or service you purchase from the Merchant using the Health Smart Services.
2.1. By accessing the Websites and/or submitting an application for the Health Smart Services, you agree to comply with the terms and conditions of this Agreement.
2.2. The terms of this Agreement extend to any future updates or supplements to the Websites or the Health Smart Services, unless they come with separate terms, in which case those terms apply.
2.3. You acknowledge and agree that internet transmissions are never completely private or secure. You understand that any information you provide using the Health Smart Platform or the Websites may be read or intercepted by others, even if there is a notice that a particular transmission is encrypted.
3.1. Health Smart shall, subject to the terms and conditions set forth in the Agreement, provide you with the Health Smart Services.
3.2. To be eligible for the Health Smart Services, you must:
3.3 To apply for the Health Smart Services, you must, either alone or assisted by Merchant or Health Smart staff, use the Health Smart Platform to:
3.4. Where you access the Health Smart Platform via telephone, you may be required to send Health Smart copies of your information in 3.3(b).
3.5. By submitting an application for Health Smart Services, you authorize Health Smart and its service providers to:
3.6. The decision to approve an application for Health Smart Services and provide a credit limit is final and at the sole discretion of Health Smart.
3.7. If you are approved, financing will be available to you through a prepayable, fixed rate instalment loan with a term to be specified in the terms and conditions of your loan agreement. The loans may be issued by Health Smart or other lenders with which Health Smart is partnered, and may be assigned to other lenders. The terms of your loan will be governed by a loan agreement that you agree to, and will be bound by, at the time a transaction is authorized by Health Smart. Any interest on the amount you borrow to finance your purchase will start accruing only once the loan has been issued. Your loan may not be issued or may be cancelled for any reason, including if Health Smart determines not to issue the loan or if you violate this Agreement.
3.8. Health Smart shall provide you with a user account (the “Online Portal”) which allows you to access information on the Websites regarding your use of the Health Smart Services, including payments made and yet to be paid to Health Smart.
5.1. By accepting the final terms of the Health Smart Services at any Merchant location or website, and by entering into a loan agreement, you are agreeing to repay the loan to Health Smart based on the terms and conditions of your loan agreement, unless the loan is not issued. Once the loan has been issued, you are responsible for making the payments pursuant to your loan agreement.
5.2. Refunds and cancellations are subject to the return and refund policies of Merchants. You must contact your Merchant directly to request refunds. Health Smart will process a refund to you if directed to do so by the Merchant.
5.3. If a refund or cancellation is processed between you and the Merchant after the loan has been issued, the Merchant will notify us and the amount of your loan will be adjusted accordingly. We may rely solely on the Merchant for the amount of the refund or cancellation to adjust your loan amount. Any disputes as to the adjusted amount of the loan are to be resolved between you and the Merchant unless the adjusted amount of the loan is the result of an error.
5.4. If a refund or cancellation is for the entirety of the borrowed amount, you may still owe finance charges depending on when the merchant notifies us of the refund or cancellation.
6.1. You agree to receive electronically all disclosures, communications, notices, and other information that Health Smart may send to you or be required to send to you under applicable law or otherwise (the “Health Smart Electronic Signature Consent”) pursuant to the terms and conditions set forth below (the “Health Smart Electronic Signature Policy”).
6.2. Scope of Consent. Your Health Smart Electronic Signature Consent applies to any transactions undertaken by you with us, or any of our affiliates, assigns, agents or representatives, including use of the Health Smart Services, any communication from us or our representatives or agents to you, including all disclosures, communication, notices, and other information required to be given to you under applicable law, any other information required by law to be provided either before or after your loan is issued, your loan agreement, billing statements, adverse action notices, any updates to your account, in each case, pertaining to any transaction with us or any use of the Health Smart Services, whether now or in the future (the “Disclosures”). Your consent will remain in effect from the time you initially apply for the Health Smart Services or access the Websites until such time as your account with Health Smart is terminated and, once terminated, will continue until such a time as all Disclosures relevant to your account have been provided.
6.3. Means of Communication. We may send any Disclosures to you via email to the email address that you have provided (or may provide later) to us or via text message to the mobile telephone number that you have provided (or may provide later) to us. We may also post Disclosures on your Online Portal or on the Websites. You agree that Health Smart is not responsible for your failure to receive any Disclosures sent via text message or email that is not caused by our failure to send the Disclosure to the mobile number or email address that you would have provided to us.
6.4. Minimum Requirements. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described:
6.5. Changes to Your Contact Information. You agree to keep us informed of any changes in your email address or mobile number so that you can continue to receive all Disclosures in a timely fashion. If your registered email address, registered address, or mobile number changes, you must notify us of the change by sending an email to firstname.lastname@example.org or calling 877.276.2780.
6.6. Acknowledging Your Ability to Access Disclosure. You agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or to your mobile number or posted on the Websites or Online Portal.
6.7. Legal Effect. Your Health Smart Electronic Signature Consent means that any Disclosures shall have the same meaning as if provided in paper form. Any Disclosures or other communication sent to you via email or text message shall be deemed delivered once received on your device. By pressing buttons or ticking boxes entitled “Apply”, “Accept and Checkout”, “Submit”, “Confirm”, “Verify”, “I Agree” or similar buttons and boxes indicating your authorization, you are providing your electronic signature with the same effect as if your signature had been provided on paper. You waive any and all defenses you may have that the Health Smart Services, the Agreement, the loan agreement, the Privacy Statement (as defined below) or any Disclosures were supplied to you in electronic form or that your signature or agreement to the Health Smart Services or to the loan agreement was obtained electronically.
7.1. All Intellectual Property Rights relating to the Health Smart Services, the Health Smart Platform, the Websites and any related services and/or materials provided by Health Smart to you or accessed by you under the Agreement shall be owned by Health Smart. All such rights are reserved.
7.2. You may print off one copy, and may download extracts, of webpages from the Websites for your personal use. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Our status (and that of any identified contributors) as the authors of such Intellectual Property Rights must always be acknowledged.
8.1. Please refer to Health Smart’s privacy statement (http://www.healthsmartfinancial.com/privacy) (the “Privacy Statement”) for information about how Health Smart collects, stores, uses, discloses and transfers your personal data.
9.1. The content on the Websites and other information which is displayed or provided to you when using the Health Smart Services is provided for general information only. It is not intended to amount to advice, including financial advice, on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Websites or other information displayed to you when using the Health Smart Services.
9.2. Although we make reasonable efforts to update the information on our Websites and otherwise provided to you in relation to the Health Smart Services, we make no representations, warranties or guarantees, whether express or implied, that the content on our Websites or in documents provided to you in relation to the Health Smart Services are accurate, complete or up-to-date.
10.1. To the maximum extent permitted by law, the Websites and the Health Smart Services are provided “as is” and “as available”. While Health Smart endeavours to provide the best service it can, Health Smart hereby disclaims all warranties of any kind, whether express, implied or otherwise, including, without limitation, the warranties of fitness for a particular purpose and non-infringement. Health Smart does not warrant that the Websites or the Health Smart Services will be complete, accurate, reliable, timely, secure, error free or that access thereto will be continuous or uninterrupted. You understand that you are using the Websites and the Health Smart Services at your own discretion and risk.
10.2. We do not warrant that the provision of the Websites and the Health Smart Services complies with the laws of any country apart from Canada.
10.3. The provisions in this clause do not affect your statutory or mandatory rights which cannot be excluded by applicable law.
The Websites may contain links to other independent third-party Websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
You represent and warrant that your use of the Websites and the Health Smart Services will be in strict accordance with the Agreement. In particular, you represent and warrant that:
13.1. Nothing in this Agreement limits or excludes Health Smart’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or any other liability than cannot be excluded under law.
13.2. To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Websites or the Health Smart Services, whether express or implied.
13.3. Health Smart will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
13.4. Health Smart shall not be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for indirect, consequential or special loss, loss of profit, loss sales or business opportunity, loss of agreements or contracts, loss of anticipated savings and loss of or damage to goodwill arising under or in connection with this Agreement.
13.5. In addition, Health Smart will not be liable for any loss or damage caused by:
13.6. Health Smart’s total liability to you under or in connection with this Agreement shall be limited to $100.
14.1. Health Smart may terminate this Agreement and suspend your use of or access to all or any part of the Websites or the Health Smart Services immediately by contacting you at your email address on record if:
14.2. On termination of the Agreement, all rights granted to you under the Agreement shall cease and you must immediately cease all activities authorised by the Agreement, including your use of the Health Smart Services.
14.3. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
14.4. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
15.1. With the exception of the terms set out in a separate loan agreement between you and Health Smart, this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2. Nothing in this Agreement affects the liabilities, rights and obligations of you and the Merchant under the applicable terms between you and the Merchant.
If Health Smart fails to insist that you perform any of your obligations under this Agreement, or if Health Smart does not enforce its rights against you, or if Health Smart delay in doing so, that will not mean that Health Smart has waived its rights against you and will not mean that you do not have to comply with those obligations. If Health Smart does waive a default by you, it will only do so in writing, and that will not mean that Health Smart will automatically waive any later default by you.
17.1. You may not assign, transfer or deal in any other manner with any or all of your rights under this Agreement without the prior written consent of Health Smart.
17.2. Health Smart may at any time assign, transfer or deal in any other manner with any or all of its rights under this Agreement, provided that such dealing will not materially affect your rights under this Agreement or the obligations owed to you under this Agreement.
Each of the paragraphs of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
We reserve the right to change the Agreement at any time for any reason. Any changes we may make to the Agreement in the future will be notified to you by email in advance.
This Agreement is between you and Health Smart. No other person shall have any rights to enforce any of its terms.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Province of Ontario and you agree that the courts of the Province of Ontario shall have exclusive jurisdiction over such disputes or claims.