Terms & Conditions

Effective Date: November 7, 2019

1) Master Subscription Agreement

This MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) is made by and between Maropost Marketing Cloud Inc., (hereinafter, “Maropost“), having its principal place of business at Maropost Inc, 180 University – Suite 5002, Toronto, ON, M5H 0A2, Canada and the undersigned (“You”) and describes the terms and conditions under which Maropost will provide services to You.

THIS MASTER SUBSCRIPTION AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO MAROPOST SERVICES BY YOU, YOUR AGENTS AND END-USERS. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Maropost’s direct competitors are prohibited from accessing the Services, except with Maropost’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Table of Contents:

1. Definitions
2. Use of the Services and Content
3. Confidentiality; Security and Privacy
4. Intellectual Property Rights
5. Third Party Services
6. Billing, Plan Modifications and Payments
7. Anti-Spam
8. Termination
9. Representations, Warranties and Disclaimers
10. Limitation of Liability
11. Indemnification
12. Assignment, Entire Agreement and Amendment
13. Severability
14. Notice
15. Governing Law
16. Survival

1. DEFINITIONS

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.

Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

Agent: means an individual (including those of Your Affiliates) authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.

Agreement: means this Master Subscription Agreement.

Applicable Data Protection Law: means the following data protection law(s): (i) where You (acting as data controller or data processor) are established in an European Economic Area (“EEA”) member state or where Your Agents or End-Users access the Services from a EEA member state the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)” and any applicable national laws made under it; and (ii) where You are established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but are not included in the Service Plan to which You subscribe.

Confidential Information: means all information disclosed by You to Maropost or by Maropost to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Maropost’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.

Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Maropost or its authorized subcontractors as indicated on an Order Form or other written document such as a SOW.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Maropost to You in the applicable Maropost help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).

End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact with while using a Service.

Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.

Personnel: means employees and/or non-employee service providers and contractors of the Maropost engaged by the Maropost in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.

Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.

Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.

Site: means a website operated by the Maropost, including www.Maropost.com, as well as all other websites that the Maropost operates.
Software: means software provided by Maropost (either by download or access through the Internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.

Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.

“We,” “Us” or “Our”: means Maropost as defined below.

Maropost: means Maropost Marketing Cloud Inc., or any of its successors or assignees.

“You” and “Your” means the Customer and “the Customer’s”), respectively.

2. USE OF SERVICES AND CONTENT

2.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Maropost regarding future functionality or features.

2.2 Customer Responsibilities. You represent and warrant that You are at least 18 years of age or, as applicable, the age of majority in the state or province in which You reside, and that You possess the legal right and ability to enter into this Agreement. If You are registering on behalf of a corporation, You warrant that You have the authority to bind the corporation. You agree to be financially responsible for Your use of the Services (as well as for use of Your account by others, including minors living with You) and to comply with Your responsibilities and obligations as stated in this Agreement. You must (a) obtain and pay for all equipment and third-party services (e.g., telephone and computer equipment) required for You to access and use the Services; (b) maintain the security of Your password, PIN number and other confidential information relating to Your account and; (c) be responsible for all charges resulting from use of Your account, including unauthorized use prior to Your notifying Maropost of such use and taking steps to prevent its further occurrence. Images hosted by Maropost on Maropost controlled servers may only be used in connection with the Services and for no other purpose whatsoever. To the extent You use images provided by Maropost, Maropost hereby grants to You a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with Your use of the Services.

2.3 Unlawful of Prohibited Use. As a condition of Your use of the Services, You will not use the Services for any purpose that is unlawful or prohibited by these Terms and any notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Maropost server, or the network(s) connected to any Maropost server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Maropost server or to any of the Services, through hacking, password mining or any other means. You will not use or register the name Maropost or any other trade name or trade mark of Maropost without express, prior permission, and You will not obstruct the identification procedures used by Maropost in the Services. You represent that the information submitted for transmission via the Maropost network for the Services is for lawful purposes only and that the transmission of emails or files is not in violation of any federal, state or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, provincial, state, national or other law. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. You are fully responsible for the content of Your transmissions through the Services and agree and acknowledge that You are the creator of all content, and that Maropost is not the author or publisher of any content and Maropost does not rent or sell lists of any kind. Maropost simply acts as a passive conduit for You to send and receive information of Your own choosing In accordance with its Prohibited Use Policy Maropost prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same): including, but not limited to, illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity/sexually explicit, and similar activities. This is not an exhaustive list, and Maropost, in its sole discretion, may determine whether Your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. Maropost will terminate Your use of its Services if Maropost determines such prohibited content or use is in violation of this Agreement. Any information stored on the Maropost servers that is deemed to be unlawful or in contravention of this Agreement or legal and regulatory requirements may be deleted at any time by Maropost without notice. Maropost reserves the right to remove any image which contravenes this Agreement without notice to You.

2.4 Removal of Content and Non-Maropost Applications. If You receive notice that Content or a Non-Maropost Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, You will promptly do so. If You do not take required action in accordance with the above, or if in Maropost’s judgment continued violation is likely to reoccur, Maropost may disable the applicable Content, Service and/or None-Maropost Application. If requested by Maropost, You shall confirm such deletion and discontinuance of use in writing and Maropostshall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Maropost is required by any third party rights holder to remove Content, or receives information that Content provided to You may violate applicable law or third-party rights, Maropost may discontinue Your access to Content through the Services.

3. CONFIDENTIALITY; SECURITY AND PRIVACY

3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect with respect to the exchange of Confidential Information after the acceptance of this Agreement. To be clear, any exchange of Confidential Information prior to the acceptance of this Agreement shall continue to be governed by such non-disclosure agreement.

3.2 Maropost will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement,

3.3 To the extent Service Data constitutes Personal Data, You and the Maropost hereby agree that You shall be deemed to be the data controller and the relevant entity in the Maropost Party shall be deemed to be the data processor as those terms are understood under the Applicable Data Protection Law. Unless otherwise specifically agreed to by Maropost, Service Data may be hosted by the Maropost or their respective authorized third-party service providers in the Canada, the EEA or other locations around the world. In providing the Services, Maropost will engage entities within the Maropost and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the EEA, Canada and in other countries and territories.

3.4 As between the Parties, all Service Data Processed under the terms of this Agreement shall remain the property of Subscriber. Under no circumstances will We act, or be deemed to act, as a “controller” (or equivalent concept) of the Service Data Processed within the Service under any Applicable Data Protection Law.
3.5 You accept and agree to Maropost’s Privacy Policy located at https://www.maropost.com/privacy-policy/. You acknowledge and agree that such Privacy Policy is hereby incorporated into this Agreement and You hereby accept Maropost’s Privacy Policy and any amendments thereto made by aropost from time to time.

4. INTELLECTUAL PROPERTY RIGHTS

Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, your Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Maropost and belong exclusively to Maropost. Maropost shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Maropost, and its other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of Maropost (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.

5. THIRD PARTY SERVICES

5.1 You must (a) obtain and pay for all equipment and third-party services (e.g., telephone and computer equipment) required for You to access and use the Services; (b) maintain the security of Your password, PIN number and other confidential information relating to Your account and; (c) be responsible for all charges resulting from use of Your account, including unauthorized use prior to Your notifying Maropost of such use and taking steps to prevent its further occurrence.

6. BILLING, PLAN MODIFICATIONS AND PAYMENTS

6.1 You agree to pay all charges for Your use of the Services according to the payment plan applicable to Your Services, and in effect for Your country of residence. Maropost reserves the right to change prices or institute new charges for access to or use of Maropost Services, unless You have a signed Written Agreement with Maropost, in which case such changes shall take effect at the end of your then current Term. All changes will be posted by Maropost on the Maropost Web sites, and You are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of the Services or non-termination of Your Maropost account after changes are posted constitutes Your acceptance of the prices as modified by the posted changes.

6.2 Charges for Services may include activation, recurring subscription, and usage fees. Your activation and recurring subscription fees are payable in advance and are COMPLETELY NON-REFUNDABLE. Usage charges are charged as and when such charges are incurred or by accumulating such charges (in the sole discretion of Maropost) in accordance with the usage rates applicable to each of the Services You use.

6.3 Your payment plan may include a monthly or annual allowance of free emails, or contacts. In the event that You have exceeded Your rate plan’s allotted allowance You will be automatically charged usage fees for each email or contact in excess of Your monthly allowance at a rate determined by reference to your rate plan’s per email rate plus thirty (30%) percent. Unused allowances are not transferrable from month to month.

6.4 Unless otherwise agreed to with Maropost, payment of Your Maropost account balance is due annually in advance and, unless You have a qualified business account, must be made by the credit card designated by You for Maropost use and transactions. If Your Maropost account is a qualified business account and is approved by Maropost for corporate billing, charges will be accumulated, identified by Customer identification number and invoiced on a monthly basis. Where there are overage charges on your account, associated with use of the Services in excess of your contracted usage or otherwise, Maropost shall bill for such overages monthly in arrears, and payment shall be due within fifteen (15) days of receipt of the invoice in respect of such overages.

6.5 If You subscribed for Services pursuant to a special offer granting You a trial period, Your activation fee and an initial monthly Services fee will BE PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT. Meaning, the amounts pre-authorized will not be considered available credit or debit funds in such account. It will be immediately charged to Your credit or debit card, without further authorization from You, upon the expiration of such free trial period, unless You provide prior notice (in accordance with Maropost verification procedures, as may be established by Maropost from time to time in its sole discretion) that You have terminated this authorization. Such notice will not affect charges submitted before Maropost reasonably could act on Your notice.

6.6 Unless otherwise agreed to with Maropost, charges are to be paid on an annual basis, in advance, in the currency in which billed. A failure to pay the charges is a material breach of this Agreement and grounds for termination by Maropost. If the payment method for Your Maropost account is by credit card and payment is not received by Maropost from the card issuer or its agents, You agree to pay all amounts due upon demand by Maropost. Each time You use the Services, allow or cause the Services to be used, You agree and reaffirm that Maropost is authorized to charge Your designated card. Your card issuer’s agreement governs Your use of Your designated card in connection with Maropost, and You must refer to such agreement (not this Agreement) with respect to Your rights and liabilities as a cardholder.

6.7 You agree that Maropost may (at its option) accumulate charges incurred during Your billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that Maropost may delay obtaining authorization from Your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement You receive from Your card issuer.

6.8 You agree that Maropost may submit charges for Your usage fees and recurring subscription fee each month or year, without further authorization from You, until You provide prior notice (in accordance with Maropost’ verification procedures, as may be established by Maropost from time to time in its sole discretion) that You have terminated this authorization or wish to change Your designated card. Such notice will not affect charges submitted before Maropost reasonably could act on Your notice. If You have any questions regarding any charges that have been applied to Your account, You must contact Maropost’ Customer Support within 30 days of the charge date. Failure to use Your account will not be deemed a basis for refusing to pay any charges submitted by Maropost in accordance with this Agreement.

6.9 All charges will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. Canadian residents will be charged H.S.T as applicable. If You reside outside of Canada, the place of residency will be deemed not to be Canada unless Maropost is notified otherwise. If Your residency status changes, You should notify Maropost and be required to provide a mailing address and proof of residency. Non-Canadian residents will be deemed not to have registered for H.S.T unless Maropost is notified otherwise.

To ensure that the Fees shall not be subject to GST/HST in Canada, the person completing this subscription agreement, an authorized representative of the subscriber, certifies that the subscriber is not resident in Canada for the purposes of the Excise Tax Act (Canada). The subscriber, or person acting for and on behalf of the subscriber in completing this subscription, has personal knowledge of such matters and is authorized to act on behalf of the subscriber. Where applicable, the undersigned agrees to advise Maropost of any change to the residence status of the subscriber for the purposes of the Excise Tax Act (Canada).

6.10 Where You fail to make payments under this Agreement when due, interest on overdue amounts shall accrue at the rate of 1.5% per month, compounding monthly (an effective rate of 19.56% per annum), both before and after judgment. Where You are in default on Your obligation to make payments under this agreement, and such default is not cured within ten (10) days of receipt of a demand from Maropost to pay such balance in arrears, the entire balance of the payments owing in respect of the balance of the term hereunder shall become immediately due and payable, with interest accruing thereafter on any unpaid amounts at the above specified rate.

6.11 Payments processed using our Commerce solution will be subject to a 0.5% fee per transaction (based on transaction value).

7. ANTI-SPAM

7.1 Maropost is committed to permission-based email marketing. This commitment is consistent with our goal of helping our clients become better marketers and ensure the best deliverability and highest reputation. To apply this, we extend beyond the minimum legal requires of the CAN-SPAM Act of 2003 and require our clients and our clients’ customers to adhere to our Anti-Spam Policy listed at: https://www.maropost.com/anti-spam-policy/, which is incorporated into and forms part of this Agreement. You hereby agrees to abide by such Anti-Spam Policy and any amendments thereto made by Maropost from time to time.

7.2 Without limiting the generality of any other provision of this Agreement and, in particular, without limiting the generality of any term of the Terms of Use, Maropost’s Privacy Policy, or Maropost’s Anti-Spam Policy, the parties agree as follows:

(a) You acknowledge and agree that nothing in this Agreement grants You any rights to the Services, or any related trademarks, copyrights, trade secrets or patents. You shall have no rights to the Services except as set forth herein. All information and data concerning the Services is the intellectual property and confidential information of Maropost; and

(b) You shall not violate any applicable laws or regulations, including without limitation, any privacy or anti-spam laws in connection with its use of the Services under this Agreement. You shall be liable to indemnify and hold Maropost harmless for any loss, claims, damages, or penalties Maropost suffers as a result of any such breach or violation on the part of You or any of the Your representatives. This indemnity shall survive the termination of this Agreement.

7.3 You agree and acknowledge that Maropost reserves the right to suspend or terminate Your use of the Services in the event of a violation of the Agreement, including without limitation, the Terms of Use, Maropost’s Anti-Spam Policy or the Privacy Policy. You agree that the Services are used only in compliance with: (a) all anti-Spam laws and regulations; and (b) Maropost’s threshold of acceptable SPAM complaints at 0.2% overall and 0.1% from any ISP or as otherwise determined by Maropost from time to time.

8. TERMINATION

8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription will renew automatically for an additional Subscription Term of one year. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed, as applicable, as of the time such subsequent Subscription Term commences.

8.2 Except for Your termination rights under Section 8.5, no refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.

8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or We effect such termination or cancellation pursuant to Sections 8.4 and 8.5, in addition to other amounts You may owe Maropost, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Maropost, provided that You provide advance notice of such breach to Maropost and afford Maropost no less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.

8.4 We reserve the right to restrict functionality, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and quarantine any Service Data if We believe that You, Agents or End-Users have violated this Agreement. Maropost’s Terms & Conditions, found at https://www.maropost.com/terms-conditions/, are incorporated into this Agreement by reference, and any violation of the Terms & Conditions shall be deemed to be a material violation of this Agreement. Maropost’s rights upon termination of this Agreement includes the removal or disablement of Service Data. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, your Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, your Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.

8.5 A Party may terminate this Agreement, and Maropost may, at its discretion, suspend Your access to the Services (without the Term tolling) for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will delete or destroy all copies of Service Data in Our possession or control in accordance with Our Data Deletion Policy, unless prohibited by law.

9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so. You represent and warrant that You are at least 18 years of age or, as applicable, the age of majority in the state or province in which You reside, and that You possess the legal right and ability to enter into this Agreement. If You are registering on behalf of a corporation, You warrant that You have the authority to bind the corporation. You agree to be financially responsible for Your use of the Services (as well as for use of Your account by others, including minors living with You) and to comply with Your responsibilities and obligations as stated in this Agreement.

9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.5 herein.

9.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

9.4 You acknowledge a duty of non-disparagement during and following the term of Your agreement with Maropost. For the purposes of this section, “disparagement” shall mean any negative statement, not demonstrably truthful, about Maropost made in a public forum, including, without limitation, internet message boards, twitter, facebook, and in public physical interactions. For clarity, technically true statements that are misleading in a manner that places Maropost in a disproportionately negative light shall be considered disparagement hereunder. Where this duty is breached, You shall be liable, as liquidated damages, and not as a penalty, for three months base subscription fees for an average subscription to the Maropost application during the preceding 12 month period for each instance of a disparaging publication or statement, representing Maropost’s reasonable expectation of lost profit due to such public disparagement.

10. LIMITATION OF LIABILITY

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF MAROPOST), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MAROPOST AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.

10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE MAROPOST LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10.4 Any claims or damages that You may have against Maropost shall only be enforceable against Maropost and not any other entity or its officers, directors, representatives or agents.

11. INDEMNIFICATION

11.1 You will indemnify and hold Maropost harmless against any claim (i) arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement; or (ii) alleging that the Intellectual Property Rights of a third party have been violated; provided (a) We promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.

12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT

12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. For clarity, our Services to be provided to You only, and are not to be utilized, directly or indirectly, by any of Your affiliates, parents or subsidiaries, or resold, distributed or offered as a service to any third-parties, and any conduct in this manner shall be a material violation of this Agreement, giving rise to the sanctions contemplated in Section 8 hereof and any other rights that Maropost may have at law. We may, without Your consent, assign this Agreement to any member of Maropost or in connection with any merger or change of control of Maropost or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

12.2 This Agreement constitutes the entire agreement, and supersede any and all prior agreements between You and Maropost with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.

12.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Maropost as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

13. SEVERABILITY

13.1 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14. NOTICE

14.1 Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You. All notices provided by Maropost to You under this Agreement may be delivered to Maropost at Maropost Inc, 180 University – Suite 5002, Toronto, ON, M5H 0A2.

14.2 You agree that Maropost shall have the right to distribute a press release announcing this subscription, to display Your logo on the Maropost web site(s) and, once results are delivered, create a case study.

15. GOVERNING LAW

15.1 You agree that these Terms shall be governed by and construed in accordance with the laws of the Province of Ontario (except its choice of law rules), and You hereby consent and attorn to the jurisdiction of such province and agree that all disputes shall be tried in the city of Toronto, Ontario. You expressly waive any right, and agree not to have any dispute under the Terms tried or otherwise determined by a jury, except where required by law.

16. SURVIVAL

16.1 Any exclusion or limitation of Maropost’s liability specified in this Agreement shall survive the expiration or termination of this Agreement for any reason.

2) Scope of agreement

The Services (as defined below) that Maropost Inc. provides to you are subject to the following terms of use (Terms). Maropost may automatically amend this Agreement at any time by (a) posting a revised Customer Agreement on the Maropost Websites, and/or (b) sending information regarding the amendment to the email address you provide to Maropost.

You are responsible for regularly reviewing the Maropost websites to obtain timely notice of such amendments. You shall be deemed to have accepted such amendments by continuing to use the services after such amendments have been posted or information regarding such amendments has been sent to you.

Otherwise, this Agreement may not be amended except in writing signed by both you and Maropost.

The most current version of the Terms can be reviewed by clicking on the “Terms and Conditions” hypertext link located at the bottom of our Web pages.

You may also have a signed written agreement which is expressly incorporated herein (Written Agreement), and which in conjunction with the Terms and policies referred to herein, comprise the entire Agreement between Maropost and you. The Written Agreement may contain different or additional terms, which supersede Terms in this document, and may refer to earlier versions of these Terms.

3) Description of services

Through its network of Web properties, Maropost provides you with access to email, email marketing and messaging services (Services). The Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, are subject to these Terms.

4) No resale of services

Your right to use the Services is personal to you and you agree not to resell the use of the Services.

5) Privacy and protection of personal information

See the Privacy Statement for disclosures relating to the collection and use of your personal information.

6) Data protection and storage of messages

While your account is active, for up to 12 months, Maropost will store messages sent and received through your Maropost account. This will be measured from the date of receipt of such messages and includes all campaign response data including opens, clicks, and bounces. Other data elements including Contact lists, Journeys, Email Content, Segments, Web Forms and Web Tracking, Product/Revenue, SMS Campaigns, Mobile App Messaging Campaigns, etc. are maintained while the account is in good standing. Maropost shall maintain administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer information in its possession. Customer acknowledges that Maropost may change its practices and limitations concerning storage of messages, at any time, and that notification of any such changes will be posted on Maropost’ Web sites. Customer further agrees that this feature is provided as a convenience to Customer only and Maropost and its parent(s), partner(s), subsidiary(ies), and affiliate(s) (“Affiliates”) have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Services.

7) Charges

You agree to pay all charges for your use of the Services according to the payment plan applicable to your Services, and in effect for your country of residence. Maropost reserves the right to change prices or institute new charges for access to or use of Maropost Services, unless you have a signed Written Agreement with Maropost. All changes will be posted by Maropost on the Maropost Web sites, and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of the Services or non-termination of your Maropost account after changes are posted constitutes your acceptance of the prices as modified by the posted changes.

Charges for Services may include activation, recurring subscription, and usage fees. Your activation and recurring subscription fees are payable in advance and are COMPLETELY NONREFUNDABLE. Usage charges are charged as and when such charges are incurred or by accumulating such charges (in the sole discretion of Maropost) in accordance with the usage rates applicable to each of the Services you use.

Your payment plan may include a monthly allowance of free emails, or contacts. In the event that you have exceeded your rate plan’s allotted allowance you will be automatically charged usage fees for each email or contact in excess of your monthly allowance. Unused allowances are not transferrable from month to month.

Payment of your Maropost account balance is due monthly and, unless you have a qualified business account, must be made by the credit card designated by you for Maropost use and transactions. If your Maropost account is a qualified business account and is approved by Maropost for corporate billing, charges will be accumulated, identified by Customer identification number and invoiced on a monthly basis.

If you subscribed for Services pursuant to a special offer granting you a free trial period, your activation fee and an initial monthly Services fee will BE PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT. Meaning, the amounts pre-authorized will not be considered available credit or debit funds in such account. It will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such free trial period, unless you provide prior notice (in accordance with Maropost verification procedures, as may be established by Maropost from time to time in its sole discretion) that you have terminated this authorization. Such notice will not affect charges submitted before Maropost reasonably could act on your notice.

Charges are to be paid on a monthly basis in the currency in which billed. A failure to pay the charges is a material breach of this Agreement and grounds for termination by Maropost. If the payment method for your Maropost account is by credit card and payment is not received by Maropost from the card issuer or its agents, you agree to pay all amounts due upon demand by Maropost. Each time you use the Services, allow or cause the Services to be used, you agree and reaffirm that Maropost is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with Maropost, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You agree that Maropost may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that Maropost may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your card issuer.

You agree that Maropost may submit charges for your usage fees and recurring subscription fee each month or year, without further authorization from you, until you provide prior notice (in accordance with Maropost’ verification procedures, as may be established by Maropost from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before Maropost reasonably could act on your notice. If you have any questions regarding any charges that have been applied to your account, you must contact Maropost’ Customer Support within 30 days of the charge date. Failure to use your account will not be deemed a basis for refusing to pay any charges submitted by Maropost in accordance with this Agreement.

All charges will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. Canadian residents will be charged G.S.T. and P.S.T. as applicable. If the Customer resides outside of Canada, the place of residency will be deemed not to be Canada unless Maropost is notified otherwise. If your residency status changes, you should notify Maropost and be required to provide a mailing address and proof of residency. Non-Canadian residents will be deemed not to have registered for G.S.T unless Maropost is notified otherwise.

Payments processed using our Commerce solution will be subject to a 0.5% fee per transaction (based on transaction value).

8) For Maropost email these terms apply

If you subscribed to a Contact Based Subscription Plan (“Contact Plan”) the subscription fees are based on the highest number of subscribers or contacts in your account at any time. While your fees may increase as your contact list grows, the fees will not be reduced as the numbers of contacts diminish unless you contact Maropost Customer Support. For the purposes of this Agreement, each unique email address will count as one subscriber or contact. In addition, if you have more than 50,000 contacts in your account, or if you send more than 50,000 emails per month, you may be required to move to a Volume Subscription Plan.

Repeated uploading and removing of unique email addresses in an attempt to circumvent Maropost’ Fee Schedule and billing procedures is prohibited.

If you purchased a “Pay as you Go” plan you will be charged for emails on a per campaign basis. “Pay as you Go” plans must be used within 12 months of purchase. Any balance remaining after 12 months is NON-REFUNDABLE.

9) Member account, password, and security

If any of the Services requires you to open an account, you must complete the sign-up process by providing us with current, complete and accurate information as prompted by the applicable registration form. You agree to notify Maropost promptly of any changes to this information as required to keep it current, complete and accurate. You also will choose a password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur by all users associated with your account.

You agree to notify Maropost immediately of any unauthorized use of your account or any other breach of security. Maropost will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Maropost or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.

10) Use of services/Customer responsibilities

You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. If you are registering on behalf of a corporation, you warrant that you have the authority to bind the corporation. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.

You must (a) obtain and pay for all equipment and third-party services (e.g., telephone and computer equipment) required for you to access and use the Services; (b) maintain the security of your password, PIN number and other confidential information relating to your account and; (c) be responsible for all charges resulting from use of your account, including unauthorized use prior to your notifying Maropost of such use and taking steps to prevent its further occurrence.

Images hosted by Maropost on Maropost controlled servers may only be used in connection with the Services and for no other purpose whatsoever. To the extent you use images provided by Maropost, Maropost hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Services.

11) No unlawful or prohibited use

As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these Terms and any notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Maropost server, or the network(s) connected to any Maropost server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Maropost server or to any of the Services, through hacking, password mining or any other means. You will not use or register the name Maropost or any other trade name or trade mark of Maropost without express, prior permission, and you will not obstruct the identification procedures used by Maropost in the Services.

You represent that the information submitted for transmission via the Maropost network for the Services is for lawful purposes only and that the transmission of emails or files is not in violation of any federal, state or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, provincial, state, national or other law. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data.

You are fully responsible for the content of your transmissions through the Services and agree and acknowledge that you are the creator of all content, and that Maropost is not the author or publisher of any content and Maropost does not rent or sell lists of any kind. Maropost simply acts as a passive conduit for you to send and receive information of your own choosing

In accordance with its Prohibited Use Policy Maropost prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same): including, but not limited to, illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity/sexually explicit, and similar activities. This is not an exhaustive list, and Maropost, in its sole discretion, may determine whether your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. Maropost will terminate your use of its Services if Maropost determines such prohibited content or use is in violation of this Agreement. Any information stored on the Maropost servers that is deemed to be unlawful or in contravention of this Agreement or legal and regulatory requirements may be deleted at any time by Maropost without notice. Maropost reserves the right to remove any image which contravenes this Agreement without notice to you.

12) Maropost does not:

Represent or endorse the accuracy, or reliability or any opinion, advice or statement made through the Services. Assume liability for any harassing, offensive or obscene/sexually explicit material distributed through the Services by you or others under your account. Assume any liability for any material distributed through the Services by you or others under your account, which is distributed in violation of any third party’s copyright or other intellectual property right. Assume liability for claims concerning unsolicited email sent by you or others under your account including, as applicable, but not limited to, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, as amended, (PIPEDA*), and the CanSpam Act*. Maropost reserves the right at all times to disclose any information as Maropost deems necessary to satisfy any applicable law, regulation, legal process or governmental request. Maropost reserves the right but is not obligated to review the content of any of your messages for compliance with these Terms and other legal requirements upon receipt of a complaint. Maropost further reserves the right to take any other action with respect to the Services that Maropost deems necessary or appropriate, in its sole discretion, if Maropost believes you or your information may create liability for Maropost or others, compromise or disrupt the Services for you or other Customers, or cause Maropost to lose (in whole or in part) the services of Maropost’ ISPs or other suppliers.

You agree to indemnify and hold Maropost (including its Affiliates) and its agents, business associates, resellers, licensors, and suppliers (collectively, Suppliers) harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including, but not limited to, any attorney’s fees and expenses) arising out of your use of the Services, your violation of the Terms, and the delivery of any of your messages and documents using the Services, or the infringement of any trademark or copyright by you.

13) Ownership

You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. If you are registering on behalf of a corporation, you warrant that you have the authority to bind the corporation. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.

You must (a) obtain and pay for all equipment and third-party services (e.g., telephone and computer equipment) required for you to access and use the Services; (b) maintain the security of your password, PIN number and other confidential information relating to your account and; (c) be responsible for all charges resulting from use of your account, including unauthorized use prior to your notifying Maropost of such use and taking steps to prevent its further occurrence.

Images hosted by Maropost on Maropost controlled servers may only be used in connection with the Services and for no other purpose whatsoever. To the extent you use images provided by Maropost, Maropost hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Services.

14) Unsolicited marketing

The transmission of unsolicited emails is regulated in the United States and Canada under the the Can-Spam Act*, and may also be regulated under the laws of a number of other countries, states and provinces. Unsolicited marketing in violation of such laws through the Services is prohibited and a material violation of this Agreement.

For Maropost Customers you agree to abide by the terms of the Maropost Anti-Spam Policy.

15) Duty of non-disparagement

You acknowledge a duty of non-disparagement during and following the term of your agreement with Maropost. For the purposes of this section, “disparagement” shall mean any negative statement, not demonstrably truthful, about Maropost made in a public forum, including, without limitation, internet message boards, twitter, facebook, and in public physical interactions. For clarity, technically true statements that are misleading in a manner that places Maropost in a disproportionately negative light shall be considered disparagement hereunder. Where this duty is breached, you shall be liable, as liquidated damages, and not as a penalty, for three months base subscription fees for an average subscription to the Maropost application during the preceding 12 month period for each instance of a disparaging publication or statement, representing Maropost’s reasonable expectation of lost profit due to such public disparagement.

16) Disclaimer of warranties and limitation of liability

The services are provided “as is” and there are no warranties, representations or conditions of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise with respect to the services or any other product, documentation or service provided hereunder or in connection herewith. Maropost further expressly disclaims guarantee of continued availability of the services or any implied warranty or condition of merchantability, satisfactory quality, durability or fitness for a particular purpose, title or non-infringement. No representation or other affirmation of fact including, but not limited to, marketing literature or collateral or statements regarding performance of the services by maropost which is not contained in this section shall be considered to be a warranty or representation, and should not be relied upon and is not binding upon maropost.

None of maropost nor any of its affiliates or suppliers shall be held responsible in any way or by any means, either directly or indirectly, for any communications or other difficulties outside of maropost’ or any such affiliates’ or suppliers’ control which could lead to any delay, interruption or misdirection of data delivery service to the customer’s email address any other receiving devices or third-party data storage and/or delivery services.

The aggregate liability of maropost, its affiliates or suppliers, whether in contract (including fundamental breach or failure of an essential purpose), tort (including negligence), misrepresentation or otherwise in respect of a single occurrence or a series of occurences shall in no circumstances exceed the amounts paid by customer to maropost with respect to the services giving rise to the claim. In no event shall maropost, its affiliates or suppliers or affiliates of any of them be liable to customer or any third party for any punitive, indirect, incidental, special or consequential damages or for any failure to realize expected savings, loss of business, loss of revenues or profits, loss of data or any other commercial or economic loss (including, but not limited to, loss of data resulting from delays, non-deliveries, wrong deliveries, service interruptions, performance or failure of the internet or maropost’ internet service provider, or deletion or failure to save deliveries), even if maropost has been advised of the possibility of such damages or they are foreseeable.

In the event applicable law does not permit such exclusions to be completely disclaimed, these exclusions shall be interpreted as necessary to give maropost the full benefit of any disclaimer or limitation as permitted by applicable law.

17) Termination

If you have a signed Written Agreement with Maropost, the termination provision found in the Written Agreement applies.

Maropost reserves the right to suspend or terminate Services if Maropost, in its sole discretion, believes that the Services are used for a purpose that is unlawful or prohibited by these Terms or any notices.

Maropost shall have no responsibility to notify any third party, including any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. Maropost shall have no obligation to maintain any messages or other content in your account, or forward any unread or unsent message to you or any third party.

Any termination of your account shall not relieve you from any amounts owing or any other liability accruing under this Agreement prior to the time that such termination becomes effective.

18) Jurisdiction and governing law

You agree that these Terms shall be governed by and construed in accordance with the laws of the Province of Ontario (except its choice of law rules), and you hereby consent and attorn to the jurisdiction of such province and agree that all disputes shall be tried in the city of Toronto, Ontario. You expressly waive any right, and agree not to have any dispute under the Terms tried or otherwise determined by a jury, except where required by law.

19) Survival

Any exclusion or limitation of Maropost’s liability specified in this Agreement shall survive the expiration or termination of this Agreement for any reason.

  1. Plan

    1. The Merchant subscribes to the Plan and in so doing agrees upon and accepts these General Terms & Conditions.
    2. These General Terms & Conditions prevail over the Plan to the extent of any inconsistency.
    3. The Merchant warrants the Plan meets the Merchant’s needs at the Commencement Date and for the duration of the Term.
    4. The Merchant may change Plans with the consent of Maropost Inc and the Merchant shall pay any additional Service Fees or charges from the start of the next billing period.
  2. Hosting

    1. Maropost Inc shall Host the Merchant Website on the Network.
    2. Maropost Inc shall maintain the Network and Host the Merchant Website in accordance with Good Industry Practice. Maropost Inc may update the Network at any time and in such manner as it thinks fit.
    3. Maropost Inc shall use reasonable endeavours to ensure the Network and Hosting Service is available at least 99.9% of the time in each calendar month during the term of the Contract, except where:
      1. Maropost Inc has suspended the Service because the Merchant is in default of the Contract (e.g. for non-payment of an invoice);
      2. factors outside Maropost Inc’s reasonable control disrupt the Network (e.g. a DDoS attack or third party system failure);
      3. Maropost Inc conducts Scheduled Maintenance or Remedial Maintenance.
    4. If the Network and/or Hosting Service is not available at least 99.9% of the time in each calendar month or part thereof during the term of the Contract, Maropost Inc shall refund to the Merchant, for each period of 30 minutes that the Network and Hosting Service not available (‘Downtime’), 5% of the Service Fees paid by the Merchant for that calendar month up to but not exceeding 100% of the Service Fees for the calendar month. Downtime shall be measured from the time it is reported by the Merchant to Maropost Inc until the Network and Hosting Service are restored and the Merchant Website is able to transmit and receive data again. This shall be the Merchant’s sole entitlement in the event of Downtime. The Merchant accepts that occasionally Downtime arises and agrees it shall not be entitled to any other compensation or payment by Maropost Inc for or in respect of Downtime (howsoever caused).
    5. Maropost Inc does not guarantee or warrant any search engine optimisation or ranking for the Merchant Website.
    6. Maropost Inc provides The Merchant up to 100gb of asset storage. This limit is negotiable and includes product images, miscellaneous files and assets which come bundled with the software.
    7. In cases where a heavy volume of traffic to the Merchant Website, The Merchant’s control panel or the Merchant Website API is causing performance or availability issues for other merchants, Maropost Inc shall work within reason to accommodate, and reserves the right to limit traffic.
  3. Access

    1. The Merchant shall access the SaaS via the internet.
    2. The Merchant shall use the Login Codes to access the SaaS.
    3. The Merchant shall configure the SaaS to its requirements using the features and functionality made available through the Maropost Commerce Cloud SaaS platform. Maropost Inc may assist with but is not responsible for configuration of the SaaS for the Merchant.
    4. The Merchant shall keep the Login Codes strictly confidential and secure from third parties.
    5. Maropost Inc may access the SaaS, Merchant Website, Data and any Service at any time for any reason without the prior consent of the Merchant and without giving prior notice to any person for doing so.
  4. Use

    1. The Merchant is licensed to use, and shall use, the SaaS, Hosting Service and the Merchant Website only for the Authorised Use.
    2. The Merchant shall only permit its officers and employees who are Authorised Users to use the SaaS and Hosting Service.
    3. The Merchant shall permit no more than the licensed Number of Users to access and use the SaaS and Hosting Service at any time.
    4. The Merchant acknowledges and accepts the Privacy Policy.
    5. The Merchant shall adopt Maropost Inc’s prescribed policies for the Merchant Website.
    6. The Merchant shall not conduct or solicit third-parties to conduct penetration or vulnerability testing on their website.
  5. Data and Content

    1. The Merchant is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Data and Content uploaded, collected or otherwise Hosted and/or processed on the Merchant Website by the SaaS.
    2. The Merchant authorises Maropost Inc, and warrants that Maropost Inc is authorised (including by any relevant third parties) to access and manipulate Data if in Maropost Inc’s sole opinion that is reasonably necessary to provide the Services.
    3. The Merchant warrants and shall ensure that it complies in all respects with the Privacy Act.
    4. Maropost Inc’s responsibilities under the requirements of PCI-DSS 3.2 are as outlined in the PCI Responsibility Matrix. Merchants looking to maintain compliance with PCI-DSS 3.2 should be aware of their own and shared responsibilities as outlined in the matrix.
  6. Website Front-End Templates

    1. The Merchant shall supply the Website Front-End Template to Maropost Inc or shall acquire its Website Front-End Template from Maropost Inc or from any third party.
    2. If the Merchant supplies the Website Front-End Template to Maropost Inc, the Merchant shall be solely responsible for its appearance, functionality, performance and operation.
  7. Professional Services

    1. Maropost Inc may at the request of the Merchant provide Professional Services in accordance with these General Terms & Conditions.
    2. Maropost Inc shall provide Professional Services in accordance with the stages and milestones agreed in writing with the Merchant.
    3. If the Merchant requires any variations to Professional Services described herein (including but not limited to changing the scope of such services, changing Acceptance Testing criteria, or changing stages or milestone dates for completing any Work), the Merchant shall submit an application to Maropost Inc to make the variations and shall include full details of the variations requested. Upon receipt of such application, Maropost Inc shall prepare and provide the Merchant with a quotation outlining the costs of the variation and any additional conditions for accepting and performing the variation required by Maropost Inc. The Merchant shall accept or reject the quotation within the time limits prescribed therein or, if the quotation is not expressed to lapse or expire on a particular date, within 7 days of receipt of the quotation from Maropost Inc. Upon acceptance of the quotation by the Merchant, the Professional Services shall be varied as set out therein.
    4. Professional Services shall be completed when they are fully performed and all stages and/or milestones and Acceptance Testing therefore are passed. Upon completion of the Professional Services, Maropost Inc shall be under no obligation to provide additional Professional Services. In particular Maropost Inc shall be under no further obligation to maintain and repair, update, upgrade or add to any Work completed or created hereunder.
  8. Intellectual Property

    1. Maropost Inc owns all Intellectual Property in the SaaS.
    2. The Merchant licenses, and warrants that Maropost Inc is authorised, to use, copy, modify, configure and integrate the Data, Content and Website Front-End Templates supplied by the Merchant for the purposes of these General Terms & Conditions.
    3. Maropost Inc licenses the Merchant to use the SaaS and the Work for the Merchant Website in accordance with these General Terms & Conditions.
    4. Nothing herein disclaims, abrogates, alienates or affects Maropost Inc’s subsisting and continuing moral rights in the SaaS or the Work.
    5. The Merchant shall not copy, hack, alter or disseminate the SaaS, Hosting Service or Network in any way, nor allow any third party to do so.
    6. The Merchant agrees Maropost Inc may suspend or terminate the Services if any infringement of a third party’s Intellectual Property occurs or is alleged in connection with the Merchant Website.
  9. Risk

    1. The Merchant uses the SaaS, Hosting Service, Add-ons and Network solely at its own risk.
    2. The Merchant warrants that it has obtained its own independent professional and technical advice, or has decided not to do so, prior to entering these General Terms & Conditions and that it shall use the Services hereunder freely and voluntarily without duress or pressure to do so from Maropost Inc.
    3. Maropost Inc may provide The Merchant access to third-party software (“Add-ons”) via the SaaS for The Merchant’s consideration and/or use. Use of these Add-ons is entirely at The Merchant’s own risk and discretion. It is The Merchant’s responsibility to assess the risk involved in the use of any Add-on and read the terms and conditions and/or privacy policies applicable.
  10. Backup and Disaster Management

    1. The Merchant shall regularly back up the Website Front-End Templates and all Data associated with these Website Front-End Templates in accordance with Good Industry Practice.
    2. The Merchant shall implement and maintain a disaster management plan for its business and shall be solely responsible for rectifying any events which interrupt with the Merchant’s ability to access and use the SaaS, Hosting Service or Merchant Website pursuant hereto.
  11. DDoS

    1. If the SaaS, Hosting Service or the Merchant Website is the target of a DDoS or any other electronic attack or threat, Maropost Inc may, at any time and without giving prior notice to any person, take such protection and/or mitigation measures as it in its sole discretion considers reasonably necessary, including:
      1. suspending the SaaS, the Merchant Website or any other Service;
      2. moving the SaaS, Merchant Website and/or Data to a quarantine server;
      3. implementing access control lists; and/or
      4. applying IP address filtering and/or blocking.
    2. If Maropost Inc takes any such measures, it may continue them until such time as the attack or threat is considered by Maropost Inc (in its absolute discretion) to be eliminated, avoided or otherwise dealt with.
  12. Support

    1. Maropost Inc shall provide the Merchant with:
      1. Help Desk Support for the SaaS and Hosting Service;
      2. Scheduled Maintenance;
      3. Remedial Maintenance.
    2. Maropost Inc may also provide the Merchant with Help Desk Support for the Merchant Website.
    3. The Merchant may access Help Desk Support via any email address, phone number, website or other contact method designated by Maropost Inc.
    4. Maropost Inc shall use its best endeavours to respond to any Help Desk Support enquiries or reports in a timely manner but is otherwise not bound to respond or to rectify any defects, errors, threats or other issues arising within any particular time frame.
    5. Verbal or written abuse of any kind of any Maropost Inc employee by the Merchant will result in immediate Account termination.
  13. Service Fees

    1. Maropost Commerce Cloud is a SaaS Platform and we adopt the ‘generally accepted’ payment approach for global SaaS companies. In order to access your Maropost Commerce Cloud platform, we require payment in advance and we require the payment to be set up as a recurring payment, however as the customer (Merchant), you have the power to terminate your Contract with Maropost Inc by providing 30 days-Notice in writing via the Maropost Commerce Cloud support hub,, in advance of the date at which you wish to cancel.
    2. The Merchant shall pay the Service Fees set out in the Plan and as otherwise agreed in writing between the parties.
    3. Maropost Inc invests heavily in continuing to build out our platform, cyber security prevention, site performance, developing Merchant user documentation and training our staff to assist our Merchants to become successful retailers and wholesalers, using the Maropost Commerce Cloud platform. As a result, from time to time, it is necessary to increase our fees and change our plan offerings. Our commitment is to not increase our fees more than once in any 12 month period. Maropost Inc may do this by serving not less than one (1) month’s prior written notice of the same upon the Merchant and giving the Merchant an opportunity to terminate hereunder prior to the expiry of that notice period if the Merchant does not accept the varied Service Fees. The Merchant shall not be entitled to any compensation or other remedy in the event of termination hereunder. Upon the expiry of the notice period, if the Merchant has not terminated, the Merchant shall be deemed to have accepted the varied Service Fees as notified by Maropost Inc.
    4. Maropost Inc may block and/or suspend the provision of or access to the Services and SaaS if any Service Fees are unpaid or become overdue (whether in whole or in part).
    5. Maropost Inc may at its sole discretion recommence or restore the provision of or access to the Services if any overdue invoice for Service Fees is paid.
    6. The Merchant acknowledges and agrees that it may take up to 48 hours for any Service to be recommenced or restored.
    7. The Merchant shall pay Service Fees by Paypal, debit card, credit card or in any other manner agreed to by Maropost Inc. Where payment is made or taken by credit card, Maropost Inc shall be entitled to add a surcharge in line with Standard 3 of the Payment Systems (Regulation) Act 1998.
    8. In cases where The Merchant fails to pay Service Fees, Maropost Inc may suspend the issuance of further fees until The Merchant has paid outstanding Service Fees. Service Fees for the period where issuance was suspended will then be issued.
    9. Maropost Inc may pass on and charge the Merchant any fees, levies or charges it incurs as a result of any Paypal, debit card, credit card or similar payment transaction failing or being declined.
    10. Unless otherwise stated, Service Fees are exclusive of GST. The Merchant shall, in addition to Service Fees, pay Maropost Inc the amount of the GST. The Merchant shall be entitled to a tax invoice for its payments for Services.
    11. The Merchant must not deduct or set-off any money owing to it or any money which the Merchant reasonably anticipates will become owing to it by Maropost Inc from any money due to Maropost Inc under these General Terms & Conditions.
    12. Service Fees set out in the Plan are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term. Acceptance of these Terms and Conditions acknowledges that the Merchants Service Fees will be automatically charged via the relevant payment method from the renewal date
    13. Service Fees are non-refundable including but not limited to when the Plan is cancelled mid-term.
    14. Maropost Commerce Cloud Plans have Order Volume Limits. If your Order Volume reaches the maximum allowance for your plan, you will be upgraded to the next plan.
    15. If Maropost Inc does not have one year of order data available, we will estimate Order Volume in collaboration with the merchant. This will be regularly re-estimated throughout the first year of use, based on available order data, to ensure merchants are on the correct plan.
    16. If you do not sell in AUD or USD, we will convert each months order volume using the month’s average exchange rate according to Fixer.io.
    17. Monthly Plans – Maropost Inc offers all Merchants the opportunity to upgrade or apply add-ons to their existing monthly plan. In doing so, the Merchant will be charged a forward pro-rata amount of the additional upgrade plan change for the remainder of the month in which they elect to upgrade.
    18. Annual Plans – Maropost Inc offers all Merchants the opportunity to pre-pay their plan for a 12 month period. In doing so, the Merchant must pay at the commencement of the 12 month period and while the Merchant can upgrade during this 12 month period, they cannot downgrade. If upgrading or adding on to an existing plan during the term of the 12 month Contract, the Merchant will be charged a forward pro-rata amount of the additional upgrade plan charge.
    19. Maropost Commerce Cloud Plans and inclusions for each plan (including but not limited to revenue, sales channels and add-ons) each apply to a single Merchant Website/license. If The Merchant requires more than one Merchant Website or license, each will require a Maropost Commerce Cloud Plan with its own distinct inclusions.
    20. Given the provisioning, hosting, cyber security and other costs incurred by Maropost Inc from the time of accepting a new Merchant, Service Fees become payable from the time of accepting the Proposal from Maropost Inc, irrespective of when the Merchant ‘Goes Live’ on the Maropost Commerce Cloud Platform.
  14. Errors and omissions

    1. Maropost Inc shall use its best endeavours to rectify at its cost any material errors or omissions in the Services provided hereunder promptly whenever such an error or omission is found in the course of execution of the Services. An error or omission is material if Maropost Inc determines in its absolute discretion (acting reasonably) that it is not minor and prevents the Services from satisfying the Merchant’s specifications, any Legislative Requirements and/or the standards of Good Industry Practice.
    2. Notwithstanding the foregoing, Maropost Inc shall not be liable to rectify any errors or omissions caused or partly caused directly or indirectly by or arising from:
      1. any misinformation provided by the Merchant;
      2. any direction given by the Merchant;
      3. any conduct of the Merchant or any third party;
      4. any undue duress, pressure or influence exerted by the Merchant upon Maropost Inc or its officers, employees, agents or subcontractors; or
      5. any accident, act of God, fire, flood, war, act of violence, terrorism or similar occurrence beyond Maropost Inc’s reasonable control.
      6. The Merchant shall submit all claims for rectification to Maropost Inc in writing promptly upon discovering them.
  15. Limitation of liability

    1. To the extent permitted by law, and without limiting the foregoing subject always to the Competition and Consumer Act, the Australian Consumer Law, and the Fair Trading Acts of each State and Territory in Australia, Maropost Inc does not warrant either the quality or standard of the Services provided hereunder, or the design, performance, use, utility, fitness for purposes or merchantable or acceptable quality of any software, service, product or thing for any particular purpose or at all, other than to the extent expressly represented in these General Terms & Conditions or in any documentation prepared and supplied by Maropost Inc to the Merchant hereunder and to the extent implied or required by law.
    2. Maropost Inc may, at its option, choose to satisfy any claim for rectification of any defect or omission in the Services by either:
      1. resupplying the Services at Maropost Inc’s cost; or
      2. paying a third party approved by Maropost Inc to resupply the Services or to supply replacement Services hereunder, upon which Maropost Inc shall be fully and effectually released and discharged from any further obligations in relation to such claim.
    3. In no case shall the value of a claim by the Merchant for rectification of any defect or omission (as assessed and determined by Maropost Inc, acting reasonably) exceed the total value of the Services Fees paid by the Merchant under these General Terms & Conditions up to the date the claim is made, and all damage or expense over and above such amount shall be the responsibility of the Merchant.
    4. Maropost Inc shall not be liable to the Merchant for any delay or delays in the provision of the Services.
    5. Maropost Inc shall not be liable to compensate the Merchant for any delay in either replacing or remedying an actual or alleged defect or omission or in properly assessing or responding to a claim.
    6. Maropost Inc shall be under no liability whatsoever to the Merchant for any indirect, special or consequential loss and/or damage (including loss of profit, loss of revenue or other economic loss) suffered by the Merchant arising out of or in connection with any Services or any defect or omission arising under these General Terms & Conditions.
    7. The Merchant shall give Maropost Inc reasonable access to any premises or property (including to devices via screen sharing) required for Maropost Inc to fully and properly investigate and assess any and all claims hereunder.
    8. Maropost Inc may decline any claim which does not comply with these General Terms & Conditions, or which is not covered by these General Terms & Conditions, or which is made for Services that are found not to be defective by Maropost Inc, in which case Maropost Inc may give notice to the Merchant that the claim is declined and the Merchant shall be responsible for Maropost Inc’s reasonable costs of receiving, processing, assessing and declining the Merchant’s claim. Maropost Inc may invoice the Merchant any such costs incurred by it and the Merchant shall promptly pay the invoice within five (5) days of the date of the invoice without the right of set-off of any amounts owing to Maropost Inc.
  16. Default & consequences of default

    1. Without prejudice to Maropost Inc’s other remedies at law or in equity, Maropost Inc shall be entitled to immediately suspend or terminate the supply of the Services in the event that:
      1. any Service Fees are not paid when due; or
      2. the Merchant breaches these General Terms & Conditions; or
      3. the Merchant becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Merchant or any asset of the Merchant.
    2. Maropost Inc will not be liable for any loss or damage the Merchant suffers because Maropost Inc has exercised its rights under this clause.
    3. If Maropost Inc terminates these General Terms & Conditions under clause 16.1, Maropost Inc may pursue the Merchant for damages for breach or specific performance or both.
    4. Maropost Inc’s rights and entitlements hereunder are in addition to the rights which Maropost Inc may have at law or in equity.
    5. If the Merchant defaults in payment of any Service Fees, the Merchant shall indemnify Maropost Inc from and against all costs and disbursements incurred by Maropost Inc in pursuing the debt including legal costs on a solicitor and own Merchant basis and Maropost Inc’s collection agency costs.
    6. Interest on overdue Service Fees shall accrue daily from the date when payment becomes due, until the date of payment, at the rate or rates prescribed from time to time under Sections 58 and 59 (as applicable) of the Civil Proceedings Act 2011 (Qld) and such interest shall be calculated and invoiced monthly and shall be payable immediately upon invoicing by Maropost Inc.
    7. If any account remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200) shall be levied for administration fees which sum shall become immediately due and payable.
  17. Termination for convenience

    1. Either party may terminate these General Terms & Conditions, with or without giving any reasons for doing so, by giving not less than 30 days’ written notice to the other party, and upon giving such notice these General Terms & Conditions shall terminate at the expiry of the 30 days.
    2. Maropost Inc may at Maropost Inc’s option suspend the provision of the Services at any time after notice of termination is given by either party.
    3. Neither party shall be liable to the other party for any loss or damage whatsoever arising from termination under clause 17.1.
    4. The termination of these General Terms & Conditions by either party is without prejudice to any other right or remedy which they may have against each other at law or in equity.
  18. General indemnity

    1. To the fullest extent permitted by law, the Merchant shall indemnify and keep indemnified Maropost Inc from and against any and all losses, loss of profits, claims, damages, actions, suits, demand, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever, which Maropost Inc shall or may suffer or incur or be called upon to suffer or incur by virtue of:
      1. any default or breach hereunder by the Merchant;
      2. any unlawful, negligent, fraudulent or indictable act or omission of the Merchant or any of its officers, employees or agents;
      3. the use or misuse of any Services by the Merchant; or
      4. any Content or Data uploaded, processed or posted by the Merchant using the SaaS or otherwise on the Merchant Website or any other website of the Merchant, except to the extent of any contributory negligence by Maropost Inc.
    2. The Merchant shall pay any and all indemnified amounts to Maropost Inc within 7 days of receiving a written demand for the same.
  19. Representations

    1. The Merchant represents and warrants that at the date of acceptance of these General Terms & Conditions by the Merchant and at all times until these General Terms & Conditions are fully performed and completed:
      1. the Merchant is not bankrupt and is not insolvent or in receivership or under administration, official management or liquidation and has not entered into an arrangement with its creditors;
      2. the Merchant is able to carry on its business and perform its obligations under these General Terms & Conditions;
      3. the Merchant is adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;
      4. there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against the Merchant or the directors or shareholders of the Merchant;
      5. all corporate authorisations and approvals necessary to enable it to enter into these General Terms & Conditions have been obtained and remain in full force and effect;
      6. all governmental requirements, authorisations, approvals and licenses which are necessary for the Merchant to legally carry on its business are in full force and effect; and
      7. it has not withheld from Maropost Inc any document, information or other fact material to the decision of Maropost Inc to enter into these General Terms & Conditions or to supply Products or provide credit to the Merchant.
    2. The Merchant must immediately notify Maropost Inc if any of the aforementioned representations, warranties and covenants cease to be true and correct.
  20. Security for payment

    1. The Merchant grants Maropost Inc a security interest and a charge and a general lien over all Website Front-End Templates, Data and Content (including domain keys and codes therefor) (‘Collateral’) it has supplied to Maropost Inc to secure payment of the Service Fees in accordance with these General Terms & Conditions and the provisions of the Personal Property Securities Act (‘PPSA’).
    2. Maropost Inc agrees to take a security interest and a charge and a general lien over the Collateral and shall register its security interest on the Personal Property Securities Register (‘PPSR’).
    3. The Merchant shall do all such things necessary to perfect Maropost Inc’s security interest hereunder.
    4. Maropost Inc may retain and withhold possession of any Collateral to enforce its right to payment hereunder.
    5. The Merchant authorises under section 275(7)(c) of the PPSA the disclosure of information by a secured party under section 275(4) of the PPSA in response to any request for information from an interested person pursuant to sections 275(1) to (3) of the PPSA.
    6. The Merchant will not without written notice to Maropost Inc, change its name or initiate any change to any documentation registered under the PPSA in relation to these General Terms & Conditions.
    7. Maropost Inc undertakes to maintain the accuracy of the registered security interest and may remove the registration when the Merchant has paid all amounts owed to Maropost Inc in relation to the Services.
  21. Credit checking

    1. Maropost Inc may obtain from a credit reporting agency a credit report about the Merchant.
    2. Maropost Inc may exchange information about the Merchant with credit reporting agencies, credit providers and trade referees to assess the Merchant’s credit worthiness and to notify third parties of any defaults hereunder.
    3. The Merchant consents to Maropost Inc being given a consumer credit report to collect overdue payment on commercial credit under section 21H of the Privacy Act.
    4. The Merchant agrees that personal credit information provided may be used and retained by Maropost Inc to provide products, market Maropost Inc’s products and services (including the Services), process payments hereunder and maintain the Merchant’s account/s with Maropost Inc.
    5. Maropost Inc may disclose information about the Merchant and/or its directors, officers and shareholders pursuant to any request by a third party for any reference or report concerning that person or entity. The Merchant shall indemnify Maropost Inc for any claim arising from such disclosure hereunder.
    6. Maropost Inc may give credit reporting agencies personal information about an application for a Credit Account, but only the kinds of information allowed by the Privacy Act.
  22. Force majeure

    1. Maropost Inc will not be liable for any failure or delay in the performance of its obligations under these General Terms & Conditions to the extent such failure or delay is caused by a Force Majeure Event.
    2. If a Force Majeure Event arises, Maropost Inc shall use reasonable endeavours to promptly advise the Merchant of the details of the Force Majeure Event and its likely effect on the performance of Maropost Inc’s its obligations hereunder, and Maropost Inc shall Maropost Inc shall take all steps reasonably necessary to recommence performance of the affected Services and minimise any delay caused by the Force Majeure Event.
  23. Dispute resolution

    1. If a dispute arises out of or relates to these General Terms & Conditions, the breach, termination, validity or subject matter of these General Terms & Conditions, or any claim in tort, in equity or pursuant to any domestic or international statute or law, then subject always to clause 23.6 the parties to the Agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia as in existence at the time written notice is received by the parties.
    2. A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.
    3. On receipt of the notice specified in clause 23.2, the parties to the dispute must within five(5) days of receipt of notice seek to resolve the dispute.
    4. If the dispute is not resolved within the said five(5) days or within such further period as the parties agree, then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 23.2.
    5. The terms of the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 23.2, are hereby deemed incorporated into these General Terms & Conditions.
    6. Notwithstanding the foregoing, Maropost Inc shall always have the right to institute legal proceedings in any court of competent jurisdiction in order to collect payments due to Maropost Inc by the Merchant whether under these General Terms & Conditions or any other agreement, without first being required to undergo mediation or arbitration.
    7. This clause 23 survives termination or expiration of these General Terms & Conditions.
  24. General

    1. These General Terms & Conditions prevail over any terms of trade or terms and conditions of supply or of acquisition of goods or services provided or submitted by the Merchant or agreed to by Maropost Inc to the extent of any inconsistency between them.
    2. The parties contract hereunder independently and at arm’s length. Nothing herein constitutes either party a partner, joint venturer, agent or employee of the other party.
    3. Each party warrants, states and represents that the party has entered these General Terms & Conditions with full knowledge of the responsibilities of the party under it, with full knowledge of the effect of these General Terms & Conditions on the party’s financial position, after either obtaining or electing not to obtain independent legal and accounting and taxation advice on the terms and subject matter of these General Terms & Conditions, and without any reliance on any other party in respect thereof.
    4. If any provision of these General Terms & Conditions shall be invalid, illegal or unenforceable, that provision shall be severed from these General Terms & Conditions and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired in any way.
    5. All notices required to be given by the Merchant under these General Terms & Conditions must be given in writing, addressed to Maropost Inc at its registered office, in the English language, signed by the Merchant (or its duly authorised attorney or representative), and dated the date on which it was signed. Maropost Inc may give notices to the Merchant in any form Maropost Inc thinks fit and, without limiting the foregoing, if Maropost Inc publishes a notice or any content on the Maropost Inc Website then the Merchant is deemed to have received that notice and notice of that content on and from the date of publication. The Merchant shall check and monitor and keep updated with all notices and content published on the Maropost Commerce Cloud Website.
    6. Maropost Inc may license or sub-contract all or any part of its rights and obligations without the Merchant’s consent. Maropost Inc may also at its sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without the Merchant’s consent.
    7. The Merchant shall not transfer or assign all or any part of its rights and obligations hereunder without first obtaining the prior written consent of Maropost Inc.
    8. The Merchant shall give Maropost Inc not less than fourteen (14) days prior written notice of any proposed change of ownership or control of the Merchant, or any change in the Merchant’s name, or any other change in the Merchant’s details (including but not limited to, changes in the Merchant’s address, facsimile number, or business practice). The Merchant shall be liable for any loss incurred by Maropost Inc as a result of the Merchant’s failure to comply with this requirement. In addition, any such change in ownership or control of the Merchant shall be deemed hereunder to constitute a transfer or assignment of the Merchant’s rights and obligations hereunder to the person or entity take on or taking over such ownership or control, which change shall not be undertaken without first obtaining the prior written consent of Maropost Inc.
    9. Maropost Inc shall not be required to notify the Merchant of, or obtain the Merchant’s consent to, any change or proposed change of ownership or control in Maropost Commerce Cloud or Maropost Inc.
    10. Maropost Inc reserves the right to review these General Terms & Conditions at any time. If, following any such review, there is to be any change to these General Terms & Conditions, then that change will take effect from one (1) month after the date on which Maropost Inc notifies the Merchant of such change. Maropost Inc will notify The Merchant via email. The Merchant may not change or amend these General Terms & Conditions without Maropost Inc’s prior written agreement.
    11. Personal information about the Merchant may be used and retained by Maropost Inc for the provision of products or services, the marketing of products or services, credit checking, maintenance of the Merchant’s account/s with Maropost Inc, processing any payment instructions or direct debit or credit facility, and debt collection, as well as for any other purposes as may be agreed between the parties or required by law from time to time.
    12. The failure by Maropost Inc to enforce any provision of these General Terms & Conditions shall not be treated as a waiver of that provision, nor shall it affect Maropost Inc’s right to subsequently enforce that provision.
    13. Any party signing or executing or otherwise accepting these General Terms & Conditions on behalf of the Merchant as the Merchant’s director, officer, attorney or representative hereby warrants, states and represents in his or her personal capacity that he or she is duly authorised and permitted to do so by the Merchant and by law.
    14. Subject to any written agreement to amend the terms hereof, these General Terms & Conditions constitute the sole and entire agreement between the parties with respect to its subject matter. No warranties, representations, guarantees or other terms or conditions of any kind not contained and recorded in these General Terms & Conditions are of any force or effect.
    15. These General Terms & Conditions and any contract to which they apply shall be governed by the laws applicable in Queensland and are subject to the jurisdiction of the courts of Queensland. All legal proceedings in relation to these General Terms & Conditions shall be instituted and held in Brisbane in the State of Queensland, Australia.
  25. Definitions and interpretations

    1. In these General Terms & Conditions:
      1. Acceptable Use Policy means Maropost’s Acceptable Use Policy published on the Maropost Commerce Cloud’s Website from time to time.
      2. Acceptance Testing means testing of the performance and functionality of Work using criteria agreed in writing between the parties or, in the absence of such agreement, as determined by Maropost Inc (acting reasonably) from time to time.
      3. Authorised Use means the use for which a Service is provided as stated in the Plan or as otherwise notified by Maropost Inc to the Merchant from time to time.
      4. Authorised Users means the persons or entities who may use the Service as stated in the Plan or as otherwise notified by Maropost Inc to the Merchant from time to time.
      5. B@SE means Maropost Commerce Cloud’s templating language for Website Front-End Templates.
      6. Merchant Website means the Merchant’s website Hosted by Maropost Inc using the SaaS and incorporating the Website Front-End Template, Data and Content.
      7. Commencement Date means the first day of the Term.
      8. Content means any text, data, images, graphics, animations or other information or material or content to be published on the Merchant Website from time to time.
      9. Data means information or data of any kind and includes Content.
      10. DDoS means a distributed denial of service attack.
      11. Devices means the plant, equipment and devices used by the Merchant or its authorised users to access and use the SaaS, including any and all software and source code installed thereon.
      12. Force Majeure Event means any circumstance not within the reasonable control of Maropost Inc, to the extent that the circumstance, or its effect upon Maropost Inc, could not have been avoided, prevented or circumvented despite the exercise of reasonable diligence by Maropost Inc. Without limiting the foregoing, such circumstance shall include fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government action.
      13. Good Industry Practice means, in relation to any work or task required to be performed by a party, the practices, methods, specifications and standards of safety, design and performance which are generally expected of competent and experienced professionals who perform the same or similar work or tasks in the same or similar industry or profession.
      14. Help Desk Support means help desk support provided at the time and in the manner published by Maropost Inc from time to time.
      15. Hosting means storing the Website on the Network and making it available on the internet, and Host and Hosted have corresponding meanings.
      16. Intellectual Property means circuit layout rights, copyrights, patent rights, trademark rights, design rights, get up, know-how, trade secrets, source code, software and any and all other forms of Intellectual Property, wheresoever and howsoever arising, whether registered or unregistered, anywhere in the world.
      17. Legislative Requirement includes a requirement imposed by law, including to obtain any governmental or judicial approval or consent, to give a notice, to pay a fee charge or penalty, and to perform and act or omissions.
      18. Login Codes means login codes and authentication criteria provided by Maropost Inc to access the SaaS.
      19. Maropost Commerce Cloud Website means Maropost Inc’s website at https://www.netohq.com or such other address notified by Maropost Inc to the Merchant from time to time.
      20. Network means hardware, software and network infrastructure owned by or licensed to Maropost Inc for the provision of the Services.
      21. Plan means the SaaS and Hosting Service plan agreed between Maropost Inc and the Merchant. Plans come with various Inclusions, including but not limited to Order Volume Limits, Add-ons and sales channels.
      22. Order Volume Limit means the maximum order value you can turnover on your Plan. Limits are set in AUD or USD.
      23. Order Volume is the sum of the order volume you have processed over the last twelve months. All orders from all sales channels, including data feeds, count towards your sales volume. Where possible, we do not include taxes or shipping costs in this calculation.
      24. Privacy Policy means Maropost Commerce Cloud’s Privacy Policy published on the Maropost Commerce Cloud Website from time to time.
      25. Professional Services means professional services to be provided by Maropost Inc to the Merchant pursuant to the Plan or as otherwise agreed in writing between the parties. Without limiting the foregoing, they may include:
        1. migrating Data to or from the Merchant Website;
        2. programming and/or incorporating custom or bespoke features or functionality in the Merchant Website;
        3. training Merchant staff and representatives; and
        4. consultancy and advisory services.
      26. Remedial Maintenance means unscheduled maintenance or rectification of the SaaS and/or the Network by Maropost Inc at Maropost Inc’s absolute discretion.
      27. SaaS means Maropost Inc’s software platform for Hosting the Merchant Website under the Plan.
      28. Scheduled Maintenance means scheduled maintenance and service of the SaaS and/or the Network by Maropost Inc at Maropost Inc’s absolute discretion.
      29. Service Fees means the fees described in the Plan.
      30. Services means SaaS, Hosting and Professional Services.
      31. Term means the period during which the Merchant is bound by these General Terms & Conditions.
      32. Website Front-End Template means each HTML file that determines the layout and/or functionality of the Merchant Website.
      33. Work means the website features or functionality, software, data, compilation, integration, improvement, development or advance, creation or any other outcome or result achieved by Maropost Inc or arising from the provision of Professional Services.
      34. Add-on refers to a third-party extension installed through our add-on store.
    2. In these General Terms & Conditions, except where the context otherwise requires:
    3. the singular includes the plural and vice versa;
      1. a gender includes other genders;
      2. another grammatical form of a defined term has a corresponding meaning;
      3. a reference to ‘writing’ or ‘in writing’ includes electronically via email, website or other digital communication.
      4. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, these General Terms & Conditions, and a reference to these General Terms & Conditions includes any schedule or annexure;
      5. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
      6. a reference to a party is to a party to these General Terms & Conditions, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
      7. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
      8. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
      9. headings are for ease of reference only and do not affect interpretation.