Terms & Conditions
1. Account Terms
You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
To access and use the Services, you must register for a Phyxter account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Phyxter may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
You acknowledge that Phyxter will use the email address you provide as the primary method for communication.
You are responsible for keeping your password secure. Phyxter cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of Phyxter will result in an immediate termination of your services.
You are responsible for your Account and any Materials you upload to the Phyxter Service. Remember that with any violation of these terms we will cancel your service.
If we need to reach you, we will send you an email.
2. Account Activation
2.1 Phyxter Account
Subject to section 2.1.2, the person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
2.2 Payment Express Checkout and Phyxter Payments Accounts
Upon completion of sign up for the Service, Phyxter will create a Payment Express Checkout account on your behalf, using your email address. Depending on your location, Phyxter may also create a Phyxter Payments account on your behalf.
You acknowledge that Payment Express Checkout and/or Phyxter Payments will be your default payments gateway(s) and that it is your sole responsibility as the Account Owner to activate and maintain these accounts. If you do not wish to keep either of the payment accounts active, it is your responsibility to deactivate them. For the avoidance of doubt, Payment Express Checkout is a Third Party Service, as defined in Section 11 of these Terms of Service.
3. General Conditions
Technical support is only provided to paying Account holders and is only available via email.
The Terms of Service shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
You acknowledge and agree that Phyxter may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on Phyxter’s website, available at https://www.phyxter.com/legal/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to Phyxter’s website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
You may not use the Phyxter service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Canada and the Province of Ontario. You will comply with all applicable laws, rules and regulations in your use of the Service.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Phyxter.
You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Phyxter or Phyxter trademarks and/or variations and misspellings thereof.
Questions about the Terms of Service should be sent to firstname.lastname@example.org.
You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and Phyxter’s Terms of Service available in another language, the most current English version of the Terms of Service at https://www.phyxter.com/legal/terms will prevail.
The Phyxter service belongs to us. You are not allowed to rip it off or use it for any illegal or sketchy purpose.
If a dispute arises the issue will be dealt with in the Province of Ontario.
Your Materials may be transferred unencrypted and may be altered, but credit card information is always encrypted.
4. Phyxter Rights
We reserve the right to modify or terminate the Service for any reason, without notice at any time.
We reserve the right to refuse service to anyone for any reason at any time.
We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered via a store, or the Materials uploaded or posted to a store, violate our Acceptable Use Policy (“AUP”) or these Terms of Service.
Verbal or written abuse of any kind (including threats of abuse or retribution) of any Phyxter customer, Phyxter employee, member, or officer will result in immediate Account termination.
Phyxter does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Phyxter employees and contractors may also be Phyxter customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
Phyxter retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, Phyxter reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
We can modify, cancel or refuse the service at anytime.
In the event of an ownership dispute over a Phyxter account, we can freeze the account or transfer it to the rightful owner.
5. Limitation of Liability
You expressly understand and agree that Phyxter shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the service.
In no event shall Phyxter or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Phyxter partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
Phyxter does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
Phyxter does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
Phyxter does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
We are not responsible if you break the law, breach this agreement or go against the rights of a third party, especially if you get sued.
Service is “as is” so it may have errors or interruptions and we provide no warranties.
6. Waiver and Complete Agreement
The failure of Phyxter to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and Phyxter and govern your use of the Service, superseding any prior agreements between you and Phyxter (including, but not limited to, any prior versions of the Terms of Service).
If Phyxter chooses not to enforce any of these provisions at any time, it does not mean that they give up that right later.
These terms of service make up the agreement that applies to you. This means that any previous agreements between you and Phyxter don’t apply if they conflict with these terms.
7. Intellectual Property and Customer Content
We do not claim any intellectual property rights over the Materials you provide to the Phyxter service. All Materials you upload remains yours. You can remove your Phyxter store at any time by deleting your Account.
By uploading Materials and/or Services, you agree: (a) to allow other internet users to view the Materials and/or Services you post publicly to your store; (b) to allow Phyxter to store, and in the case of Materials and/or Services you post publicly, display, your Materials and/or Service; and (c) that Phyxter can, at any time, review all the Materials and/or Service submitted to its Service, although Phyxter is not obligated to do so.
You retain ownership over all Materials and/or Services that you upload to a Phyxter store; however, by making your store public, you agree to allow others to view Materials and/or Services that you post publicly to your store. You are responsible for compliance of the Materials and/or Services with any applicable laws or regulations.
We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials and/or Services or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
Phyxter shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your business to promote the Service.
Anything you upload remains yours and your responsibility.
8. Payment of Fees
You will pay the Fees applicable to your Phyxter Account, including but not limited to fees relating to the processing of transactions under your Account (“Transaction Fees”), and any fees related to Third Party Services (“Additional Fees”). Together, the Transaction Fees and the Additional Fees are referred to as the “Fees”.
In order to utilize our in-app payment processing you must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Phyxter will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and Phyxter will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in Canadian dollars, and all payments shall be in Canadian currency.
Transaction Fees and Additional Fees may be charged from time to time for additional or optional services and at Phyxter’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. As well, an invoice will appear on the Account page of your Phyxter administration console.
If we are not able to process payment of Fees using the Authorized Card, we will make a second attempt to process payment using the Authorized Card 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next Billing Cycle. You will not be able to access your Account during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, Phyxter reserves the right to terminate your Account.
All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
You are responsible for all applicable Taxes that arise from Phyxter’s products and services. These Taxes are based on the rates applicable to the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Card. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Phyxter of your exemption. If you are not charged Taxes by Phyxter, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
You must maintain your current location in the administration menu of your Phyxter store and promptly update your location if you move jurisdictions. If you change jurisdictions you must promptly update your location in the administration menu.
Phyxter does not provide refunds.
A valid credit card is required for all stores. Any Transaction Fees or Additional Fees will be charged to your credit card. If we are not able to process payment of Fees using your credit card, we will try your credit card again 3 days following the initial failed attempt. If we are unable to process payment of Fees on the second attempt, we will attempt to process payment of Fees on your credit card a third and final time 3 days following the second attempt. If payment of Fees is unsuccessful after three attempts, Phyxter may freeze your store. You may be required to remit Taxes to Phyxter or to self-remit to your local taxing authority. No refunds.
9. Cancellation and Termination
You may cancel your Account at anytime by emailing email@example.com and then following the specific instructions indicated to you in Phyxter’s response.
Upon termination of the Services by either party for any reason:
Phyxter will cease providing you with the Services and you will no longer be able to access your Account;
unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
any outstanding balance owed to Phyxter for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
your store website will be taken offline.
If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
We reserve the right to modify or terminate the Phyxter Service or your Account for any reason, without notice at any time.
Fraud: Without limiting any other remedies, Phyxter may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
To initiate a cancellation, email firstname.lastname@example.org. Phyxter will respond with specific information regarding the cancellation process for your account. Once cancellation is confirmed, Phyxter will no longer be automatically renewed. If you cancel in the middle of your billing cycle, you’ll have one last email invoice.
We may change or cancel your account at any time. Any fraud and we will suspend or cancel your account.
10. Modifications to the Service and Prices
Prices for using the Services are subject to change upon 30 days’ notice from Phyxter. Such notice may be provided at any time by posting the changes to the Phyxter Site (Phyxter.ai) or the administration menu of your Phyxter store via an announcement.
Phyxter reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
Phyxter shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
We may change or discontinue the service at anytime, without liability.
11. Third Party Services
In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Phyxter’s partners or other third parties.
Phyxter may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or Phyxter’s website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, Phyxter may receive a revenue share from Third Party Providers that Phyxter recommends to you.
We do not provide any warranties with respect to Third Party Services. You acknowledge that Phyxter has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Phyxter’s websites, including the Phyxter App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Phyxter. Phyxter does not guarantee the availability of Third Party Services and you acknowledge that Phyxter may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Phyxter is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Phyxter strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Phyxter is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
Google Maps is a Third Party Service that is used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
Under no circumstances shall Phyxter be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if Phyxter has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Phyxter partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
We are not responsible for third party services so use them at your own risk. If you use any third party services on the Phyxter platform, you permit us to send your data to those services. If you use them you agree that we do not provide a warranty, so get advice beforehand.
12. DMCA Notice and Takedown Procedure
Phyxter supports the protection of intellectual property and asks Phyxter merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Phyxter’s designated agent. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material.
Phyxter respects intellectual property rights and you should too. If we receive a DMCA Notice, we may disable access or remove the allegedly infringing content from your website. If you don’t think the claim is valid, you can proceed with a counter notification.
If you believe one of our merchants is infringing your intellectual property rights, you can send Phyxter a DMCA Notice. We will expeditiously disable access or remove the content and notify the merchant. Be advised that we post all notices we receive.
13. Privacy & Data Protection
Additionally, if: (a) you are established in the European Economic Area (EEA); (b) you provide goods or services to customers in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, Phyxter’s collection and use of personal information of any European residents is also subject to our Data Processing Addendum.
14. Additional Terms of Service for Consumer
Upon registration with Phyxter, a Consumer may submit a request for service or work (“Service Request”) from Pros. All Service Requests posted through must be lawful and not in violation of any city ordinance, provincial / Provincial/State, local or federal law. After submission of a Service Request, Phyxter will inform requested Pros of services requested by Consumer. However, Phyxter does not and cannot guarantee that there will be Pros who are capable of or willing to complete the requested services at the time and place requested.
Service Request Acceptance
When a Pro accepts a Service Request, the Consumer and Pro enter a binding legal agreement between for the Pro to complete the Service Request and the Consumer to pay the Pro.
Service Request Completion
When a Pro has completed the Service Request, the Pro will mark the request as complete and notify the Consumer via the Service. The Consumer will be automatically billed with their payment information registered with the Service. See below for dispute resolution policies.
INTERACTIONS AND DISPUTES WITH PROS
YOU SHOULD VERIFY THAT THE INFORMATION PRESENTED BY THE PRO, INCLUDING THE INFORMATION IN THE PRO’S PROFILE, IS ACCURATE. PHYXTER DOES NOT VERIFY ALL INFORMATION OR DOCUMENTS PROVIDED BY PROS AND EXPRESSLY DISCLAIMS ANY GUARANTEES OR WARRANTIES CONCERNING SUCH INFORMATION. CONSUMERS SHOULD CONDUCT THEIR OWN INVESTIGATION OF PROS, TO INVESTIGATE AND TO DETERMINE, AMONG OTHER THINGS, WHETHER PROS ARE APPROPRIATELY LICENSED FOR THE REQUESTED SERVICES, FREE OF SIGNIFICANT PROVINCIAL/PROVINCIAL/STATE-LEVEL CIVIL LEGAL JUDGMENTS, AND CARRY APPROPRIATE INSURANCE OR BONDING AT APPROPRIATE LIMITS. PHYXTER DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION RECEIVED BY CONSUMER FROM PROVINCIAL/STATE OR OTHER GOVERNMENT AGENCIES OR FROM THIRD PARTY SOURCES IS ACCURATE, ERROR FREE, OR THAT IT IS UP TO DATE OR UPDATED AT THE TIME THAT CONSUMER CHECKS SUCH INFORMATION. MOST AGENCIES HAVE PERIODIC UPDATE CYCLES OR SCHEDULES AND THIS INFORMATION IS NOT UPDATED ON A REAL-TIME BASIS BY SUCH
No Warranty or Endorsement of Pro Services
PHYXTER DOES NOT ENDORSE OR RECOMMEND THE SERVICES OF ANY PARTICULAR PRO. THE DECISION TO ENTER INTO AN AGREEMENT FOR WORK BELONGS ENTIRELY TO THE CONSUMER. PHYXTER DOES NOT WARRANT THE PRO’S PERFORMANCE ON THE JOB OR THE QUALITY OF GOODS, MATERIALS, EQUIPMENT OR SERVICES FURNISHED BY PRO. PHYXTER DOES NOT CONTRACT FOR OR PERFORM, AND IS NOT RESPONSIBLE FOR ANY OF THE SERVICES REQUESTED BY THE CONSUMER IN THE SERVICE REQUEST. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. PHYXTER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY PRO OR THE PRO’S ABILITY TO PROVIDE A SERVICE COMPLIANT WITH THE CONSUMER’S SERVICE REQUEST. YOU EXPRESSLY ACKNOWLEDGE THAT PHYXTER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY OF SERVICES RENDERED BY ANY SERVICE PROVIDER.
Relationship Between Pros and Consumers
CONSUMER IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS WITH PROS. CONSUMER’S RIGHTS UNDER CONTRACTS YOU ENTER INTO WITH PROS ARE GOVERNED BY THE TERMS OF SUCH CONTRACTS AND BY APPLICABLE FEDERAL, PROVINCIAL/STATE, PROVINCIAL AND LOCAL LAWS. SHOULD YOU HAVE A DISPUTE WITH ANY PRO, YOU SHOULD ADDRESS SUCH DISPUTE WITH THE PROS DIRECTLY. PHYXTER IS NOT A PARTY OR THIRD-PARTY BENEFICIARY TO THE CONTRACTS BETWEEN CONSUMERS AND PROS.
IN EXCHANGE FOR THE REFERRAL SERVICE PROVIDED BY PHYXTER AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS ACKNOWLEDGED, YOU EXPRESSLY AGREE TO RELEASE PHYXTER, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE WITH ONE OR MORE PROS.
PHYXTER MAKES NO REPRESENTATION ABOUT THE SUITABILITY OF THE CONTENT ON OR SERVICES OF THIS SERVICE FOR ANY PURPOSE. PHYXTER DOES NOT PROMISE THAT THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT IT WILL PROVIDE SPECIFIC RESULTS FROM USE OF THE SERVICE OR ANY CONTENT, SEARCH OR LINK ON IT. THE SERVICE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. PHYXTER SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THIS SERVICE, FOR YOUR ACTION OR INACTION IN CONNECTION WITH THIS SERVICE OR FOR ANY DAMAGE TO YOUR COMPUTER OR DATA OR ANY OTHER DAMAGE YOU MAY INCUR IN CONNECTION WITH THIS SERVICE. PHYXTER SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PHYXTER MAKES NO GUARANTEES OF ANY SPECIFIC RESULT FROM USE OF THIS SERVICE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL PHYXTER, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, EMPLOYEES AND/OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO (1) THE USE OF, CONTENT IN, DELAY OR INABLITY TO USE, OR OTHERWISE ARISING IN CONNECTION WITH THIS SERVICE, (2) THE CONDUCT OF A USER, PRO OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. PHYXTER IS NOT LIABLE FOR ANY LOST DATA RESULTING FROM THE OPERATION OF THE SERVICE OR THE ENFORCEMENT OF THE TERMS. PHYXTER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTY USERS, PHYXTER USERS, ADVERTISERS AND/OR SPONSORS ON THE SERVICE, IN CONNECTION WITH THE SERVICE OR OTHERWISE RELATED TO YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE. TO THE EXTENT YOUR PROVINCIAL/STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
CONTENT ON SERVICE
Users may post “star ratings”, information, reviews, comments, messages, photos, profiles, send emails, submit materials, suggestions, ideas, comments, questions, or other information (collectively “User Content”), so long as the User Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You agree that all of the User Content and information posted on the Service (including any ratings, reviews and/or other User Content posted by you), is the sole and exclusive property of Phyxter or the party posting such content. Phyxter reserves the right (but not the obligation) to remove, change or edit such User Content in its sole discretion.
Reliance on Content
“Star ratings”, opinions, advice, Provincial/Statements, reviews, offers, or other information or User Content made available through the Service, but not directly by Phyxter, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such User Content. Phyxter does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Service; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or Provincial/Statement made by any party that appears on the Service. Under no circumstances will Phyxter or its affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Service or transmitted to or by any Users.
15. Additional Terms of Service for Service Professionals
Welcome to Phyxter, a technology service (“Service”) that enables to service professionals (“Pros,” or "you") to run their business operations and to participate in the Phyxter consumer marketplace operated by Phyxter Corp. (“Phyxter,” “we,” or “us”). This section explains the terms by which you may use our Service as a Pro, including but not limited to our interactive and/or mobile service, web sites, and software.
Use of the Service is permitted only by individuals who can form legally binding contracts under applicable Law. If you do not qualify, do not use the Service. You may not use our service for any unlawful purposes or in furtherance of illegal activities.
INFORMATION YOU PROVIDE AS A PRO
Phyxter requires Pros to complete a profile (“Business Profile”). Phyxter does not review or verify the information or representations set forth in those Business Profiles. Pros are required to warrant that the information they submit is complete, accurate and current.
Pros are requested to post licensing information in their Business Profile. Different jurisdictions may require Province/State and/or local (county or municipal) level licensing for certain services, work, and/or project amounts. Pros are required to warrant that the information they submit is complete, accurate and current.
Insurance and Bonding
Pros may post information and documents concerning insurance policies and/or bonds covering their operations. While Phyxter does not verify this information, Pros are required to warrant that the information they submit is complete, accurate and current.
Individual customer data entered or imported by Pros shall remain the property of the Pro. Phyxter will not market to a Pro's customers without the consent of the Pro.
Service Pricing Data
Service pricing data entered or imported by Pros shall remain the property of the Pro. Phyxter will not share the individual price with a third party.
Pros grant Phyxter the right and permission to use their logo on Phyxter marketing.
In the event that you provide Phyxter with any feedback regarding the Phyxter Service, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the service or the Service (“Feedback”), you hereby assign to Phyxter all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account.
FEES FOR USE OF PHYXTER CORP
Phyxter Corp has various levels of service that are billed on a percentage of revenue basis. When you sign up, you agree allow us to bill your credit card (or other payment method) for all due charges. Percentage of revenue billing occurs immediately at the point of sale. We will re-bill for any failed billing or past-due amounts.
Phyxter reserves the right to change any and all service fees at Phyxter’s sole discretion.
Phyxter may also charge penalty Fees for fraud, misconduct or other violations of these Terms, as determined in our sole discretion. Information about current penalty Fees is available in the policy or support center.
You agree to pay these Fees. Information about current penalty Fees is available in the policy or support center. You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to your credit card, PayPal or other payment method designated at the time you make a purchase or register for a service. If you do not pay on time or if Phyxter cannot charge a credit card, PayPal or other payment method for any reason, Phyxter reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or Fees due will be made by electronic mail or by phone. Such communication may be made by Phyxter or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that Phyxter may charge such unpaid Fees to your credit card or otherwise bill you for such unpaid Fees. You understand and agree that you are solely responsible for determining your own tax reporting and sales tax collection requirements in consultation with tax advisers, and that we cannot and do not offer specific tax advice to either Service Members or Customer Members. All sales on Phyxter are final and non-refundable, except as otherwise specified herein
PAYMENT PROCESSING TERMS FOR PROS
Card Not Present
You acknowledge that all Card transactions are processed as “card not present” transactions, even where the consumer is at the physical point of sale and a consumer has different Chargeback rights for “card not present” transactions than for transactions where the buyer physically presents the card to the seller.
We will review some or all of the information that you submit in connection with your request to sign up for the Service. We may forward such information on to our payments processor. After you submit your application, we or our processor may conclude that you will not be permitted to use the Service.
We may impose various transaction limits and rules on Pros. If you believe that the transaction limits are interfering with your business, please contact our support to request higher limits. We may require more information about your business to evaluate your request and will decide at its sole discretion whether to honor such requests. We will consider a variety of factors in making its decision, including but not limited to a proprietary set of rules, Chargeback rates, transaction behavior, and other supplemental data about your business.
Payment Processing Fees
Marketplace payment processing services for Service Members on Phyxter are provided by Stripe, and, where applicable, may include money transmission services pursuant to licenses held by Stripe. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these terms or continuing to operate as a Service Member on Phyxter, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Phyxter enabling payment processing services through Stripe, you agree to provide Phyxter accurate and complete information about you and your business, and you authorize Phyxter to share with Stripe this information and transaction information related to your use of the payment processing services provided by Stripe.
Phyxter serves as a limited payment collection agent of a Service Member and is authorized to collect payment from Customer Members on behalf of a Service Member. Payment made by a Customer Member to Phyxter in connection with Pro Services shall be considered the same as a payment made directly to a Service Member. As a Service Member, you hereby appoint Phyxter as your limited payment collection agent solely for the purpose of accepting payment from Customer Members in connection with Pro Services. You agree that payment made to Phyxter shall be considered the same as a payment made directly to you. You further understand that, as a limited payment collection agent for its Service Members, Phyxter’s obligation to you, as the Service Member, is subject to and conditional upon successful receipt of payment from Customer Member. In accepting appointment as your limited payment collection agent, Phyxter assumes no liability for your acts or omissions in your capacity as the Service Member.
If any Member does not make a marketplace payment on time or if Phyxter cannot charge a credit card, PayPal or other payment method for any reason, Phyxter reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or payments due will be made by electronic mail or by phone. Such communication may be made by Phyxter or by anyone on its behalf, including but not limited to a third-party collection agent. If you have a balance due on any Account, you agree that Phyxter may charge such unpaid payments to your credit card or otherwise bill you for such unpaid payments.
All cancellation and refund requests will be subject to Phyxter’s review and absolute discretion. We will normally process your valid written request within thirty (30) days of receiving it, unless a shorter period is required by law. You may request a cancellation or refund by emailing your request to Phyxter support at email@example.com. If you cancel your Account at any time, you will not receive any refund.
Access to Your Funds
We will deposit to your bank account the amounts actually received by us for transactions submitted through the Service (less any applicable Fees). We reserve the right to revise our payout schedule. Once your bank account information is verified, we will automatically initiate a payout to your designated bank account at the end of every business day except as provided below. Payouts to your bank account will normally register within 2-3 business days subject to your bank’s policies.
Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error will be deemed a waiver of any right to amounts owed to you.
Restrictions on Availability of Funds
Should we need to conduct an investigation or resolve any suspicious activity or pending dispute related to Pro account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
The amount of a transaction may be reversed or charged back to your bank account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Associations, our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.
There is a non-refundable $25 fee for each Chargeback regardless of the outcome of the dispute.
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a Chargeback with the payer, the payer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to the Pros account. If a Chargeback dispute is not resolved in your favor by the Association or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
Our Collection Rights for Chargebacks
For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (defined below). We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the Card Association or our processor from your bank account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts to your bank account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all the Pros account deficit balances unpaid by you.
If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts and (d) terminating or suspending your access to the Service.
If we have reasonable suspicion of misuse, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks or refunds, or other indications of performance problems related to your use of the Service. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or our processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your account, including but not limited to any funds (a) due to you under this Agreement or (b) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your bank account.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection to your use of our Service (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, we will report annually to the United States Internal Revenue Service (“IRS”) or the Canada Revenue Agency (“CRA”), as required by law, your name, business name, address, Tax Identification Number the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
You are solely responsible for all customer service issues relating to your services, including pricing, fulfillment, cancellation by you or customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback, reviews, or ratings concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to your account.
Refunds and Returns
You agree to process returns, and provide refunds and adjustments for, your goods or services through your Pro account in accordance with these terms and Card Association Rules. Card Association Rules require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a Card sale, unless required by law and (d) not accept cash or any other item of value for preparing a Card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a Chargeback relating to such sales. You can process a refund through your account up to sixty (60) days from the day you accepted the payment. If the balance in your account is insufficient to cover the refund, we will withdraw up to the requested refund amount from your bank account and credit it back to your customer’s Card. Transaction Fees are also refunded, so the full purchase amount is always returned to your customer. We have no obligation to accept any returns of any of your goods or Service on your behalf.
We provide you an online transaction history of all of your authorized transactions. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your account and your use of the Service and (b) reconciling all transactional information that is associated with your account.
We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, we will credit your bank account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, we will debit the extra funds from your bank account. We will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
SMS NOTIFICATION, CHAT, AND PHONE NUMBER
Default phone number
We will provide a default notification phone number for your business. This phone number will send job related notifications to your customers when notifications are turned on. Customers will not be able to respond to messages sent from this default number.
Company specific notification phone number
You will be able to add the company specific phone number feature for an additional monthly charge if your Phyxter Corp subscription includes access to the feature. You can choose the area code in which the company specific phone number is located. This number cannot be changed once it is chosen.
Notification phone number transferability
Company specific notification phone numbers are not transferable. Your company specific notification phone number will be held for ninety (90) days if you cancel your subscription.
HOW TO USE PHYXTER WHOLESALE
Phyxter allows you to send Orders to Parts Vendors. The GPS receiver - which should be installed on the mobile device (smart phone) on which you have downloaded the Application - detects your location and uses your location to optimize sending an Order to a Parts Vendor. The Parts Vendor has sole and complete discretion to accept or reject each Order. Once you have submitted your Order and your payment has been authorized, you will not be entitled to change or cancel your Order, nor will you be entitled to a refund. Phyxter encourages all our Parts Vendors to accept all Orders and to communicate any rejection promptly, and Phyxter will notify you as soon as reasonably practicable if a Parts Vendor rejects your Order. Parts Vendors have the discretion to reject Orders at any time because they are too busy, due to weather conditions or for any other reason. If the Parts Vendor accepts a request, the Application notifies you that you have PAID for your order. Neither Phyxter nor the Parts Vendor guarantee that Orders will be ready for pick-up by the time or your arrival.
For the avoidance of doubt: Phyxter itself does not provide the Products, and Phyxter is not a Parts Vendor. It is up to the Parts Vendor to accept Orders for Products and services, which may be requested through the use of the Application or the Service. Phyxter only acts as intermediary between you and the Parts Vendor. The provision of the Product and fulfillment of any Orders by the Parts Vendor to you is subject to the agreement (to be) entered into between you and the Parts Vendor. Phyxter shall never be a party to such agreement.
YOUR USE OF PHYXTER WHOLESALE
You warrant that the information you provide to Phyxter is accurate and complete and that you will keep the information you have provided to Phyxter current through the Application. Phyxter is entitled at all times to verify the information that you have provided and to refuse the Service or use of the Application without providing reasons.
You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct Application for your device. Phyxter is not liable if you do not have a compatible mobile device or if you download the wrong version of the Application for your mobile device. Phyxter reserves the right to terminate the Service and the use of the Application should you be using the Service or Application with an incompatible or unauthorized device.
By using the Application or the Service, you further agree that:
You will only use the Service or download the Application for your sole, personal use and will not resell it to a third party;
You will not authorize others to use your account;
You will not assign or otherwise transfer your account to any other person or legal entity;
You will not use an account that is subject to any rights of a person other than you without appropriate authorization;
You will not use the Service or Application for unlawful purposes, including but not limited to sending or storing any unlawful material or for fraudulent purposes;
You will not use the Service or Application to cause nuisance, annoyance or inconvenience;
You will not impair the proper operation of the network;
You will not try to harm the Service or Application in any way whatsoever;
You will not copy, or distribute the Application or other Phyxter Content without written permission from Phyxter;
You will keep secure and confidential your account password or any identification we provide you which allows access to the Service and the Application;
You will provide us with whatever proof of identity we may reasonably request;
You will only use our Application or Service through an internet connection you are authorized to use;
You are aware that when Services may require receiving or sending messages by SMS (if available in your jurisdiction), standard messaging charges (if any) will apply;
You will not use the Service or Application with an incompatible or unauthorized device;
You will comply with all applicable laws including, federal, provincial and/or municipal laws of the area in which you are present while using the Application or Service.
Phyxter reserves the right to immediately terminate the Service and the use of the Application should you not comply with any of the above rules.
The use of the Application and the Service is available to you free of charge. Phyxter reserves the right to introduce a fee for the use of the Application and/or the Service. If Phyxter decides to introduce such a fee, Phyxter shall inform you accordingly and allow you to either continue or terminate the Contract.
Phyxter shall charge you for the Order placed by you on behalf of the Parts Vendor. You agree that you will pay for all Products you purchase from the Parts Vendor, and that Phyxter may charge your credit card account as provided by you when registering for the Service for the Products (including any taxes and late fees, as applicable) that may be incurred by or in connection with your account. You are responsible for the timely payment of all fees and for providing Phyxter with a valid credit card account for payment at all times. Any payment made is non-refundable.
Phyxter uses a third-party payment processor (the "Payment Processor") to link the payment card you provide to the Application and Service. The processing of payments or credits, as applicable, in connection with your use of the Application and Service will be subject to the terms, conditions and privacy policies of your credit card issuer in addition to these Terms. Phyxter is not responsible for any errors by the Payment Processor.
8 Victoria St.
Toronto, ON M5E 1L4
Last Edited on December 4th, 2018.