GENERAL CONDITIONS OF USE
- Purposeand Scope
The Canadian website (hereinafter called the“Site”) and the Tcheck’it application are published by TCHECK’IT CONSULTING, a French company registered with the RCS under n°797519 451 R.C.S. PARIS, whose headquarters are locatedat 105, rue Lauriston 75116 Paris, and MCA an Ontario Company whose headquarters are located at 200 Hanlan Rd Unit A, Woodbridge, Ontario L4L 3P6;hereinafter called““Tcheck’it by MCA””.
“Tcheck’it by MCA”offers its customers, Retailers, Manufacturers, or others companies,who sell their products in particular in supermarkets and hypermarkets, pharmacies,mass,hardware, cafés, bars, restaurants and all other businesses or places open to the public, a solution enabling them to obtain a variety of information in real time abouttheconsumer experiencewith their productsor establishments, by providing access to a mobile application (hereinafter called the “Mobile Application”) to any adult person witha smartphone (hereinafter called the “User”) so that they may respond to various polls and surveys in retail outlets.
Thus, while shoppinginstores or when out at a restaurant, “Tcheck’it by MCA”allowsUsers to participate in pollsand/orsurveysin order to provide their opinions and/orshare their experiences.
In particular, pollsand/orsurveysmayconsist ofdescribing what the User sees in a store, at a specific location (for example: lines andproducts available, prices, promotions, etc.), to describeand/orgive an opinion of a promotional presentation, the service quality or the greeting/reception in the store, or even to share one or more product photograph(s).
Use of the Mobile Application and the services available through the use of the Mobile Application (hereinafter called the “Services”) constitutes acceptance of these general conditions of use (hereinafter called the“GCU”), as such may be revised from time to time, and is a binding agreement between the User and “Tcheck’it by MCA”. By downloading and installing the Mobile Application, the User acknowledges and agrees to be bound by the GCU. If the User does not agree to the GCU, the User should uninstall the Mobile Application immediately.
The GCU isavailable and directly viewable on theSiteand the Mobile Application,and can also be provided upon request.
The Services are accessibleviathe Mobile Application, which is downloadable for free using a smartphoneoperating with IOS or Android.
“Tcheck’it by MCA”reserves the right tomodify the GCU, Mobile Application and the Site at any time, as it deems useful and necessary.
- User Account
The use of the Mobile Application requires creation of a user account (hereinafter called a“User Account”) on the Mobile Application.
The ownerof aUser Account will then haveaccess to all the Mobile Application’spublic surveys, with the exception ofthe polling area, which is accessible by invitation only, according to criteriadefined by thepolling needs.
Users may own only one User Account, and only one Mobile Application can be installed on his/her Mobile device.
The Userwarrantsthat the information provided to create his/her User Account is truthful and accurate. Creation of a User Account and use of the Mobile Application may require the transmission of information provided by the User (“User Information”). The User consents to the transmission of User Information to “Tcheck’it by MCA”and authorizes “Tcheck’it by MCA”to record, process, and store such User Information as necessary for the functionality and administration of the Mobile Application, User Account and Site.
The Usercertifies being at least 18 years of age at the time when creating his/her User Account. The User represents and warrants that (a) he/she is not located in a country that is subject to a Canadian government embargo; and (b) he/she is not listed on any Canadian government list of prohibited or restricted parties.
The act ofopeninga User Accountconstitutes acceptance of receivingnotifications, emailsorSMS messagesfrom“Tcheck’it by MCA”sincethe User is likely to beinvited to participatein apollor survey. If the user no longer wants to receive notifications, emails or SMS messagesfrom“Tcheck’it by MCA”, it is his/her responsibility tomodifythenotifications settingsdirectly on his/her phone and to unsubscribe from receiving emails through his/her internet service provider (ISP)or to terminate his/her membership to the Services under the conditions defined in Article 10.
“Tcheck’it by MCA” is not responsible for any additional charges that the user may incur for using the Mobile Application or the Services, such as data or other telecommunication or Internet or wireless service provider fees.
The User accepts and agrees that he/she is responsible to protect the confidential and personal nature ofthe ID and password associated with his/her User Account. As a result, the Useragreesto besolely responsible for all activities performed on “Tcheck’it by MCA”from his/herUser Account,and for the safekeeping of his/her password. If the Useris awareof any non-authorized useof his/herpasswordand/orhis/her User Account, he/she agreesto promptly notify“Tcheck’it by MCA”at the Ontario address of MCA foundat the beginning of thisdocument, or by email to:
- User’s Obligations
The User is prohibited from using the Mobile Application to create, publish, post or otherwise make available any content which harasses, invades privacy, spams, or contains objectionable content.
The User is prohibited from using the Mobile Application to create, publish, post or otherwise make available any content for the purposes of solicitation, advertising, marketing, unsolicited email, or other such activities.
The User is responsible for the collection and payment of any and all Canadian taxes. Taxes could include, but are not limited to sales, use, transfer, value added, withholding, and other taxes as assessed. The User releases Tcheck’it by MCA from the responsibility of determining whether or not taxes apply.
The User agrees that the App is only to be used for lawful purposes in a lawful manner. Any use of the App that violates any applicable law or governmental regulation will result in the immediate termination of the User and possible legal recourse.
- Participation in Research and/or Surveys
The holderof aUserAccount is inviteddirectly via the Mobile Application, by email or by SMS message,to participate in pollsand/orsurveys. The frequency of theserequestsdepends in particular on the needs of Tcheck’it byMCA’scommercial clients.
EachUseris freetoparticipate, or not, in the proposed research or surveys. When he/she agreesto participate in the proposed researchand/orsurveys, the Useragrees to carefully completethe pollsand/orsurveysand not to provide false answers, absurd answers,or answers that do not comply with the provisionsin Article 3.
EachUsercan, at any time, cancel his/her participation in thepolls or surveys. The cancellationalso automatically occurs when the Userterminates his/her membership with “Tcheck’it by MCA”.
- Photographs
When they are requiredas an integral part of the answers to thesurveys, the photographs must be clear and legible in order to be used; otherwise,the User’s participation in thesurveywill not beconsidered.
Photographsofproduct displays, storefronts, sales promotions, productsand anyother photographyrequestedas part of the surveysare not considered asoriginals. However, as required, the Usergrants“Tcheck’it by MCA” free and exclusive intellectual property rightson these photographs, worldwide,and for the legal term of protectionofintellectual property rights.
The User declares and warrantshaving obtained all the necessary authorizations in order for “Tcheck’it by MCA’s” to use the photographs, in particularfrom individuals who may appear in said photographs. As a result, the User agrees to hold “Tcheck’it by MCA” harmless against any resulting claim, lawsuit, or potential action and will bear all charges, convictions, reimbursements or expenses that may result.
- Compensation
EachUserwill be compensatedfor the polls or surveyswhose answers are complete, truthful anduseful. Otherwise, “Tcheck’it by MCA” reserves the right to refuse to pay the applicable compensation.
The nature and amountof compensation are explained within each poll or survey offer on the Mobile Application, by email or by SMS message. The compensation may consist of collecting points, receiving a sum of money, a gift, participation in a draw, or similar reward.
In the eventwhere answers providedby the Userto a poll or survey’s introductory questions revealthat the Userdoes not belong to the identified target group sought, the questionnaire will automatically terminate. In this case, the Useris not entitled to any compensation, unless otherwise stipulated in the poll or survey’s offer.
Thecompensation is recordedand credited to the User’s Accountwithin 8 (eight) daysfollowing participation in the poll or survey.
Once theUser Accountcontains at least ten (10) dollars, the User may requestto transfer this amount to a bank account via bank to bank transfer or to their PayPal account. If no request is made, the monies will remain in the User Account indefinitely. Should the User Account not reach ten (10) dollars after a 3 month period, the User can request payment via email to .
The User is required to communicate information regarding their bank account or their PayPal account in the “My Account” section of the Mobile Application in order to be paid. Payment requestare done inthe "My Wallet” section of the Mobile Application. All payments will be made following a period of approximatelyeight (8)business daysafter being requested by the User,and within a maximum of 20 (twenty) business days.
The User isentirelyindependent andis free to participate, or not, in the polls or surveys. There is no obligationin regards tohow frequentlythe User uses the Mobile Application, or the number ofpolls or surveysin which he/she participates.
- Intellectual Property Rights
The Mobile Application, the Site and their contents are protected by the applicable Intellectual Property Laws as well asby all applicable international standards, and are the exclusive property of “Tcheck’it by MCA”.
Any reproduction, representation, publication, broadcasting, use or modification, fully or partially, of the Mobile Application, the Site and/orany of their elements, done without prior written authorization from “Tcheck’it by MCA”, constitutes an infringement that may result in a civiland/orcriminal action.
“Tcheck’it by MCA”grants a free, revocable license to the User, andnon-assignable and non-exclusive worldwide use ofthe Mobile Applicationin compliance with the GCU, for the duration of his/her membership.
- Disclaimer
The user agrees to use the Mobile Application at his/her own risks and perils, regarding theuse andpossible degradationof hardwareaffectedbythe use of the Mobile Application.
The userexpressly acknowledges and agrees that “Tcheck’it by MCA”is not required to keep the history of its contents and will not requestabackupor a copy of the informationand data that he/shehas made availableviathe Mobile Application.
“Tcheck’it by MCA”cannot be held liable for a User’s non-compliance with the internal rules of a private place. Users are reminded that thepollsand/orsurveysthat require photographs to be taken in private places or establishmentsmust comply with the internal rulesestablished by the owner. The useragrees toobtain prior authorizationfrom the owner beforetaking any photographs for apolland/orasurvey. The Usersubmitting a photograph viathe Mobile Applicationcertifies that thephotograph was taken with the owner’s consent.
“Tcheck’it by MCA”cannot be held liablefor technical difficulties such as misdirected email, internet communication interruptionsor degradation of the Mobile Application.
- Personal Information
Furthermore, the Useraccepts that“Tcheck’it by MCA”collects, keeps, processes, uses andtransmits his/her connection and tracking data, as well as geographical location,for the purposes of conducting pollsand/orsurveys. This information may include the User’s geographic location duringthesearch forpollsor surveysand their completion. The User can, at any time, withdraw his/her consent by disablinghis/her phone’s location services.
- DurationandTermination
The User’s registration is indefinite. In the event the User breaches any of its obligations as defined by theseGCU, “Tcheck’it by MCA”reserves the rightto immediatelycancel, temporarily or permanently, his/her User Accountanddeny him/her accessto the Mobile Application.
The Userwho no longer wants the Services can request, at any time, to terminate his/her User Account by contacting “Tcheck’it by MCA”at:
- Indemnification
At “Tcheck’it by MCA”’s request, the User agrees to defend, indemnify, and hold harmless “Tcheck’it by MCA”, its parent and other affiliated companies, and their employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including legal fees and disbursements on a solicitor-client basis) that arise from the User’s use or misuse of the Mobile Application, violation of the GCU, or violation of any rights of a third party. “Tcheck’it by MCA” reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. In the event of any third party claim that the Mobile Application or User’s possession and use of the Mobile Application infringes that third party’s intellectual property right, “Tcheck’it by MCA” will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- Warranties; Disclaimers
“Tcheck’it by MCA” is providing the mobile application to the User “as is” and the User is using the Mobile Application at his or her own risk. To the fullest extent allowable under applicable law, “Tcheck’it by MCA” disclaims all warranties, whether express or implied, including any warranties that the Mobile Application is merchantable, reliable, accurate, fit for a particular purpose or need, non-infringing, free of defects or able to operate on an uninterrupted basis, that the use of the Mobile Application by the User is in compliance with laws applicable to the User or that User Information transmitted in connection with the Mobile Application will be successfully, accurately or securely transmitted.
Without limiting the generality of the foregoing, “Tcheck’it by MCA” makes no representation or warranty that: (a) the Mobile Application will be compatible with your device and software; (b) the Mobile Application will be available or will function without interruption or error; (c) the transmission of information to and from the Mobile Application will be secure; (d) the use of the Mobile Application will not infringe the right (including, without limitation, intellectual property rights) of any person; or (e) the use of the Mobile Application will not cause any damage to your device, software or electronic files.
- No Liability
To the fullest extent allowable under applicable law, in no event shall “Tcheck’it by MCA” (a) be liable to the User with respect to the use of the Mobile Application; or (b) be liable to the User for any indirect, special, incidental, consequential or exemplary damages, including, without limitation, damages for loss of goodwill, lost profits, loss, theft or corruption of User information, the inability to use the Mobile Application or device failure or malfunction. The User’s sole remedy is to cease use of the Mobile Application.
- General Provisions
“Tcheck’it by MCA”islikelyto send notifications toUsers, includingchanges to the GCU, by email, SMS message or by publishing it on the Site or the Mobile Application.
Any eventual abstention by “Tcheck’it by MCA”to exercise a right or a provisionunder thisGCUshall not constitute awaiverof this right or of this provision.
If a provision of theGCUis inapplicable orinvalid, the GCU’s other provisions remain fully effective, in force and applicable.
The rights acquired by “Tcheck’it by MCA”under the GCUcan befreely assigned or transferredorbe licensed by “Tcheck’it by MCA”, without restriction, with the exception of Users’ personal information to the extent of compliance with the GCU.
The GCU are non-assignable, non-transferable and cannot be sub-licensed by the User. “Tcheck’it by MCA”’s affiliates, agents, officers, directors, employees, counsel and other representatives, and each of their respective heirs, executors, successors and assigns are third party beneficiaries of these GCU. Upon User’s acceptance of the GCU Terms, such persons will have the right (and will be deemed to have accepted the right) to enforce these GCU against User as a third party beneficiary thereof.
The titles of paragraphs reproduced in theGCUare for information purposes onlyand have no legal or contractual value.
By using the English version of the Application, the parties acknowledge and agree that they have required that this Agreement be prepared in the English language. En utilisant la version anglaise de l’application, les parties reconnaissent avoir exigé que la présente convention soit rédigée en anglais.
- Governing Law and Court Jurisdiction
The GCU are governed by the laws of the Province of Ontario and the laws of Canada therein, and in respect of the application of the GCU, the parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario located in Toronto, Ontario.
Except where prohibited by applicable law, any claim (including disputes, controversies, etc.) arising out of or relating to the GCU will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator, who will be a person legally trained, has experience in information technology and is independent of both parties, to be held in Toronto, Ontario, in English and governed by Ontario law subject to the most current version of the Arbitration Act 1991 (Ontario). Each claim will be arbitrated on an individual basis and will not be consolidated with the claim of any other party. You agree to waive any right you may have to commence or participate in any class action against “Tcheck’it by MCA”. Notwithstanding the foregoing, “Tcheck’it by MCA” reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.