Last Modified: January 29, 2024
Our Customer Terms of Service is a contract that governs our customers’ use of the Maropost Services. It consists of the following documents:
General Terms: These contain the core legal and commercial terms that apply to your use of our products and services. Any references to Master Terms means these General Terms.
Product Specific Terms: These include any additional terms that apply to your use of each of our product offerings, our consulting and other services, and third-party services.
Jurisdiction Specific Terms: Depending on your location, some of these jurisdiction-specific terms will apply to you. They’ll also explain which Maropost entity you’re contracting with, and which laws will govern our relationship.
Data Processing Agreement (DPA): This explains how we process personal data we obtain from you, or on your behalf, and may include any applicable standardized contractual clauses.
Acceptable Use Policy (AUP): This is the policy that sets out what you can and can’t do while using our products and services.
Your Account Billing Section and/or Order Formthe Maropost-approved form created following your purchase of one of our products or services through our online payment process. It contains all of the details about your purchase, including your Subscription Term, Subscription Service and/or Consulting Services purchased and your Fees.
By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We reserve the right to unilaterally update these Customer Terms of Service from time to time in our reasonable discretion. If you have an active Maropost Subscription at the time of publication of such an update, we will notify you in writing at the time of publications via in-app notification or by email (if you have subscribed to receive email notifications).
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” or “Customer Terms of Service” means these General Terms, all applicable Product Specific Terms, all Applicable Jurisdiction Specific Terms, the Data Processing Agreement, and all Order Forms executed hereunder. Throughout this Agreement, we may link to other pages to help facilitate your use of our products and services and manage your Maropost Account; however, these knowledge base articles are for your information only, and they are not incorporated into this Agreement.
“Authorized Payment Method” means a current, valid, payment method accepted by us, as may be updated from time to time by us in our sole and reasonable discretion, and which may include payment through your account with a third party.
“Billing Period” means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a twelve (12) month Subscription Term payable monthly in twelve (12) equal monthly installments, the Billing Period will be monthly.
“Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential, or that a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the specific terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
“Consulting Fee” means the amount you pay for the Consulting Services, as described in the relevant Order Form.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Contact” means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
“Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include Maropost Content. Customer Data may include Personal Data, and to the extent it does, the processing of such Personal Data shall be governed by the DPA. Customer shall be the owner of all Customer Data.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service. Customer shall either be the owner of all Customer Materials, or represents by the act of providing, posting, uploading, inputting or submitting such materials for public display, that is has obtained sufficient rights from any relevant third-party owner of such material to so provide, post, upload, input or submit.
“DPA” means the Data Processing Agreement agreed to between the Parties for the purpose of governing Maropost’s processing of Personal Data on behalf of Customer and at Customer’s specific instruction.
“Email Send Limit” means the maximum number of emails that you may send during the then-current Subscription Term, as more fully described in the applicable Order Form.
“Fees” means all fees payable by a Customer including Consulting Fees, Subscription Fees, and all other resulting fees arising therefrom and under this Agreement such as overages, late penalty interest, et cetera.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“Maropost Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
“Jurisdiction-Specific Terms” means the additional terms that apply to your use of the Services, depending on your location. These terms form a part of the Agreement, are hereby incorporated by reference, and are available at http://maropost.com/legal/jurisdiction-specific-terms.
“Order” or “Order Form” means the Maropost-approved form or online subscription process by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services.
“Party” or “Parties” means either individually or collectively one or both of Maropost or Customer as parties to this Agreement.
“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
“Product Specific Terms” means the additional product-related terms that apply to your use of Maropost’s Services, Consulting Services and Third-Party Products. These terms form a part of the Agreement, are hereby incorporated herein, and can be found at http://maropost.com/legal/product-specific-terms.
“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within a similar definition of special or sensitive categories of data under applicable law relating to privacy and data protection.
“Services” means the Subscription Service, Free Services and Consulting Services.
“Subscription Fee” means the amount you pay for the Subscription Service, as described in the relevant Order Form.
“Subscription Service” means one or more of our web-based (“Software-as-a-Service” or “SaaS”) applications, tools and platforms that you have subscribed to under an Order Form, or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://Maropost.com or another Maropost-designated URL, and any ancillary products and services, including website hosting, that we may provide to you. For clarity, “Subscription Service” excludes any Third-Party Products.
“Subscription Term” means the then-current period of time specified in the relevant Order Form of your subscription to the applicable Subscription Service. This can be either the initial term or a renewal term. For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services, and for so long as Maropost determines to provision such Free Service at its sole and unfettered discretion.
“Term” means the aggregate of all Subscription Terms to include the initial term of your subscription, as specified on your Order Form(s), and each subsequent renewal term (if any).
“Third-Party Products” means non-embedded products and professional services that are provided by third-parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Maropost (1) hardware (e.g. POS terminals) and, (2) apps available from, for example, our marketplaces, directories, and links made available through the Subscription Service and non-Maropost services found at the links below;
https://www.maropost.com/integrations
https://partner.maropost.com/
https://galaxy.maropost.com/s/partners
https://www.netohq.com/partner
“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including communications services.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Maropost accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“Maropost”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.
2.1 Access.
During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your Maropost account. We might provide some or all elements of the Subscription Service through third-party service providers.
You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may authorize access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under this Order; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement, to include acquisition and use of unique User identifications and passwords. You will at all times remain liable for your Affiliates’ compliance with the Agreement.
2.2 Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Maropost account (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Maropost account.
2.3 Limits. The limits that apply to you will be specified in your Order Form, this Agreement, and for our Free Subscriptions, these limits may also be designated only from within the product itself. For further information on the limits that apply to your subscription, please refer to the Product Specific Terms.
2.4 Modifications. We reserve the right to modify the Subscription Service from time to time, including by adding or deleting features and functions, in our sole and unfettered discretion, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, please refer to the Product Specific Terms.
2.5 Acceptable Use. You will comply with our Acceptable Use Policy at https://www.maropost.com/legal/acceptable-use-policy/ (“AUP”).
2.6 Prohibited and Unauthorized Use.
You may not use the Subscription Service if you are not at least eighteen (18) years of age.
You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account.
2.7 Free Trial. If you register for a free trial as may be offered by us, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier by either Party) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well and govern in the instance of any conflict with the terms and conditions of this Agreement.
3.1 Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you exceed your Maximum Contacts, Email Send Limit, User or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or Subscription Services, including additional Contacts, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. You can find all the information about how your fees may be otherwise adjusted in the relevant Product Specific Terms.
3.2 Subscription Fee Adjustments. We may increase your fees from time to time up to our then-current list price published on our website or in our price book, as we deem appropriate in our sole and unfettered discretion. If this increase applies to you, we will notify you via Maropost in-app notification or email (if you have subscribed to such notifications) at least ten (10) days in advance of the change and the increased fees will apply at the start of the next billing date. If you timely notify us in writing that you do not agree to this increase, either Party may terminate your subscription at the end of your Subscription Term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
3.3 Consulting Fees. The Consulting Fees will remain fixed and as contracted-for in the applicable Order Form for the period during which the related Consulting Services are contracted, if any such time for provisioning or completion of such Consulting Services is specified in the relevant Order Form. However, in the event Maropost’s timely performance of the contracted-for Consulting Services is materially delayed or rendered impossible within the contracted period by the action or inaction of Customer, Maropost reserves the right to, in its sole and unfettered discretion, either (1) increase such Consulting Fees relating to such delayed Consulting Services to accommodate any resulting increased costs of performance to Maropost, or (2) terminate the relevant Order Form to the extend it provides for such delayed Consulting Services.
3.4 Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all Fees payable during the Subscription Term. You further authorize us to use a third-party of our unrestricted choosing to process payments, and consent to the disclosure of your payment information to such third-party.
Where there are overage charges on your account, associated with the use of Services in excess of your contracted usage or otherwise, Maropost will bill for such overages in arrears for the total amount of the overage accrued during such month after the month is completed, or where applicable in accordance with your contracted usage as defined in the relevant Order Form. Billing will occur on or about the first calendar day of the subsequent month. Credit card paying Customers will be billed via the credit card on file at the times described above. However, Customers paying via other approved methods will be invoiced with payments due immediately upon receipt of the invoice respecting such overages.
3.5 Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable immediately upon receipt of the invoice, unless otherwise specified in the Order Form. All Fees not paid within 30 days of the invoice date may, at our sole discretion, accrue interest on the aggregate amount of unpaid Fees at the rate of 1.5% per month, or 18% per annum, or the maximum amount allowed under applicable law if lower, until paid in full.
3.6 Payment Information. You shall keep your Authorized Payment Method, contact information, and billing information up to date for the payment of incurred and recurring fees, as applicable. Changes may be made within your Maropost account. You authorize Maropost to continue to charge your Authorized Payment Method for applicable fees during your Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in a relevant Order Form. All fees are due and payable in advance throughout the Term.
3.7 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
3.8 Suspension for Non-Payment. If Customer does not pay all Fees as and when due under any Order Form, then and in that event Maropost may, in its sole and unfettered discretion, suspend provision of all Services to Customer pursuant to the provisions of subsection 4.7.2 below, under all then-current Order forms until such non-payment of Fees is resolved to Maropost’s satisfaction.
4.1 Term and Renewal. Your initial Subscription Term will be specified in your Account and/or Order Form, and, unless otherwise specified in your Order Form, your subscription will automatically renew for the shorter of the initial Subscription Term, or one year (each such renewed period a new Subscription Term, and more generally a “Renewal Term”). This Agreement shall become effective upon Customer’s completion of an Order Form or Maropost-approved online subscription process by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services, and shall remain effective until such time as there are no more active subscriptions or Orders.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal, no less than sixty (60) days prior to the end of your Subscription Term.
4.3 Early Termination. Subject to any Product Specific Terms to the contrary, you may choose to terminate your subscription early at your convenience provided that, we will not provide any refunds of prepaid Fees, and you will promptly pay all unpaid Fees due through the end of the Subscription Term.
4.4 Termination for Cause. Either Party may terminate this Agreement for cause, as to any or all Services: (i) upon thirty (30) days’ notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. We may terminate this Agreement with immediate effect in the event we determine in good faith that you have acted in such a way as to expose Maropost to material damage or irreparable harm.
4.5 Restricted Right to Termination. Except as specifically provided elsewhere in this Agreement, and in this Section 4, this Agreement may not otherwise be terminated prior to the end of the Subscription Term. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Maropost Content. However, you will continue to be subject to this Agreement for as long as you have access to a Maropost account.
4.6 Payment Upon Termination for Cause. In the event Customer terminates this Agreement for Cause, Maropost shall refund any prepaid Fees attributable to that period of time after the effective date of the termination for cause. In the event Maropost terminates this Agreement for Cause, Customer shall promptly pay all Fees described in all then-effective Orders and Order Forms, whether or not such Fees are attributable to the period of time after the effective date of the Termination for Cause.
4.7 Suspension
4.7.1 Suspension for Prohibited Acts.
We may suspend any User’s access to any or all Subscription Services without notice for:
(i) use of the Subscription Service in a way that violates applicable local, provincial, state, federal, or foreign laws or regulations or the terms of this Agreement;
(ii) use of the Subscription Service in a way that in Maropost’s good faith judgment threatens the security, integrity or availability of the Subscription Service;
(iii) use of the Maropost email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients; or
(iii) instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to pre-screen, control, monitor nor edit your Customer Data or Customer Materials.
4.7.2 Suspension for Non-Payment.
Unless the full amount of the Fees are paid in full, as and when contracted, we reserve the right to immediately suspend your, and all Users under your account, access to any or all of the Services. We will not suspend the Services if and while you are disputing the applicable charges reasonably and in good faith, and are cooperating diligently to resolve the dispute. If a Service is suspended for non-payment, we may, in our sole and unfettered discretion, charge a re-activation fee to reinstate the Service.
4.7.3 Suspension for Present Harm.
If your website, or use of, the Subscription Service:
(i) is being subjected to denial-of-service attacks or other disruptive activity;
(ii) is being used to engage in denial-of-service attacks or other disruptive activity;
(iii) is creating a security vulnerability for the Subscription Service or others;
(iv) is consuming excessive bandwidth or storage; or
(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each Party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.7.4 Suspension and Termination of Free Services.
We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.8 Effect of Termination or Expiration on Free Services. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this will not be the case if your Agreement was terminated for cause.
5.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant a limited, unassignable, revocable, worldwide license to us and our licensors to use the Customer Materials and Customer Data to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. In turn, we rely upon the grant of this license to enable us to provision said Services; without which we could not perform our obligations under this Agreement. You acknowledge this grant of limited license is essential to our ability to perform hereunder. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on Maropost. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data in order to provide the Subscription Service and Consulting Services to you, as provided in this Agreement, and described in Subsection 5.3 below, and only as permitted by applicable law.
5.3 Data Practices and Machine Learning.
5.3.1 Usage Data. We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement.
5.3.2 Machine Learning. We may, as permitted by this Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.
5.3.3 Privacy Policy. For more information on these practices, please see our Privacy Policy, available at https://www.maropost.com/legal/privacy-policy/.
5.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as further described in the DPA.
5.5 Regional Data Hosting. If provided in the applicable Order Form, we will store your Customer Data in a specific location or geographical region (e.g. North America, Europe, APAC or other) as part of your subscription subject to the terms of this Agreement. If not so provided in the relevant Order Form, Maropost reserves the right to store your Customer Data in the regional data center most conducive to the efficient operation of its Subscription Service, and in accordance with applicable law.
5.6 Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States or Canada in connection with the Subscription Service. To the extent we process Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA) the applicable Standard Contractual Clauses will apply, as set out in our DPA. For more information on this topic, see our DPA.
5.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please see the ‘Maropost Obligations’ section of our DPA.
6.1 This Agreement, among other things, governs your access to and use of the Subscription Service (a SaaS product), and you are not granted a license to any software comprising the Subscription Service by this Agreement. Except as otherwise specifically granted herein, we retain all ownership and related intellectual property rights to the Maropost Content, the Subscription Service, the Consulting Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Maropost Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
6.2 We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you. For the avoidance of doubt, Maropost owns all right, title and interest in and to the Subscription Service and Consulting Services, to include any improvements, enhancements, refinements, upgrades, and modifications thereto, even if such were derived from comments or suggestions received from Customer. To the extent, if any, that ownership in such improvements, enhancements, refinements, upgrades, and modifications does not automatically vest in Maropost by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to Maropost all rights, title, and interest which Customer or its Affiliate may have in or to same.
7.1 The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind, but in no event use less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third-party (except those third-party service providers used to provide some or all elements of the Subscription Service or Consulting Services), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement, and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this at any time upon written notification to Maropost.
9.1 You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any claim, suit, action, or proceeding (each, an “Action”) brought against us and/or our Affiliates (and our respective officers, directors, employees, agents, service providers, and licensors) by a third-party to the extent that such Action is based upon or arises out of:
(a) Unauthorized or illegal use of the Subscription Service by you or your Affiliates;
(b) your or your Affiliates’ noncompliance with or breach of this Agreement;
(c) your or your Affiliates’ use of Third-Party Products;
(d) the unauthorized use of the Subscription Service by any person using your User information; or
(e) a claim that Customer Data or Customer Material infringes on or misappropriates the intellectual property rights of a third-party.
9.2 We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your sole expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not, without obtaining our prior written consent, accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
9.3 In the event Maropost receives information regarding an actual or potential claim against it relating to Customer’s infringement or misappropriation of third-party intellectual property, Maropost may, in its sole and unfettered discretion, require Customer upon its receipt of written notice from Maropost of the underlying facts of the claim, immediately discontinue all use of any Customer Data within the Subscription Service that may be related to actual or potential claim against Maropost.
10.1 Performance Warranty. We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, (ii) the Subscription Services will perform in a manner consistent with the provisions of this Agreement and the applicable Product Specific Terms; (iii) The Consulting Services will be performed with the requisite skill and in a professional and workmanlike manner; and (iv) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, that it will not be a violation of this subpart (iv) if Customer uploads a virus or malicious code to the Subscription Service and subsequently downloads the same virus or code. The warranties provided under this Section 10.1 do not apply to you if you only use the Free Services.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance upon our receipt of written notice of such non-conformance from you. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us in writing of the non-conformity (the “Remedy Period”), then either Party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused Subscription Fee covering use of the non-conforming Subscription Service after termination in accordance with the Termination for Cause provisions of Section 4 of this Agreement.
We will not have any obligation or liability under this Section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION 10.1 AND WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION 5.4 OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, MAROPOST CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE, OR THAT USE OF THE SERVICES WILL RESULT IN SALES. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, MAROPOST CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, BUSINESS INTERRUPTION OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, GOODWILL DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBIITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
10.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION 9, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
10.5 Third Party Products. MAROPOST OR THIRD-PARTIES MAY MAKE AVAILABLE THROUGH VARIOUS MEANS THIRD-PARTY PRODUCTS OR SERVICES THAT INTEROPERATE WITH THE SERVICES. ANY ACQUISITION BY CUSTOMER OF SUCH THIRD-PARTY PRODUCTS OR SERVICES, AND ANY EXCHANGE OF DATA BETWEEN CUSTOMER AND SUCH THIRD-PARTY PRODUCTS’ AND SERVICES’ PROVIDER, THIRD-PARTY PRODUCT OR SERVICE IS SOLELY BETWEEN CUSTOMER AND SUCH PROVIDER, THIRD-PARTY PRODUCT OR SERVICE. MAROPOST DOES NOT WARRANT OR SUPPORT THIRD-PARTY PRODUCTS OR OTHER NON-MAROPOST PRODUCTS OR SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY MAROPOST AS “CERTIFIED” OR OTHERWISE, UNLESS EXPRESSLY AGREED TO BY MAROPOST IN AN ORDER FORM. MAROPOST IS NOT RESPONSIBLE FOR ANY DISCLOSURE, MODIFICATION OR DELETION OF CUSTOMER DATA RESULTING FROM ACCESS BY SUCH THIRD-PARTY PRODUCTS OR SERVICES, OR THEIR PROVIDERS. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS AND THEIR PROVIDERS THAT YOU USE IN CONJUNCTION WITH THE SERVICES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
11.1 Amendment; No Waiver.
We may modify any part or all of the Agreement by posting a revised version at http://www.maropost.com/legal/. The revised version will become effective and binding the next business day after it is posted.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision to you via a Maropost in-app notification or email (if you have subscribed to receive such notice). If you deliver timely written notice to us, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, at which point your subscription will terminate and not be allowed to continue unless you agree to the revised Agreement. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our written notice to you of such circumstance, and we will promptly refund any prepaid but unused Subscription Fees attributable to the period of time after the effective date of the termination provided under this Section 11.1, in accordance with the Termination for Cause provisions of Section 4 of this Agreement.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; epidemic or pandemic; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted. Except for actions for nonpayment or breach of a Party’s intellectual property rights, and applicable laws, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Maropost Contracting Entity, Notices, Governing Law & Venue. The Maropost entity entering in this Agreement, the address to which Customer shall direct all notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, without regard to any principles of conflict of laws, and the courts that shall have jurisdiction over any such dispute or lawsuit, depend on where the Customer is domiciled, as follows:
| For Customers Domiciled in North or South America | ||||
| If Customer is domiciled in: | The Maropost entity entering into this Agreement is: | Notices should be addressed to: | Governing law is: | Courts with exclusive jurisdiction are: |
| Any country within North or South America, to specifically include Canada and the United States. |
Maropost, Inc. | 360 Bay Street,
#302, Toronto ON M5H2V6 |
The laws of the Province of Ontario and the laws of Canada applicable therein. | The courts of the Province of Ontario and all courts competent to hear appeals therefrom. |
| For Customers Domiciled in Europe | ||||
| If Customer is domiciled in: | The Maropost entity entering into this Agreement is: | Notices should be addressed to: | Governing law is: | Courts with exclusive jurisdiction are: |
| Any country within Europe, to specifically include the United Kingdom. | Findify AB (now Maropost Merchandising Cloud) | c/o Covendum
Gavlegatan 16 113 30 Stockholm Sweden |
The laws of England and Wales. | The courts of England and Wales. |
| For Customers Domiciled in Asia or the Pacific Region (APAC) | ||||
| If Customer is domiciled in: | The Maropost entity entering into this Agreement is: | Notices should be addressed to: | Governing law is: | Courts with exclusive jurisdiction are: |
| Any country within APAC, to specifically include Australia and New Zealand. | Maropost Australia | LACPF5,
12-20 Ocean Street Maroochydore QLD 4558 Australia |
The laws of the state of Queensland and the laws of Australia applicable therein. | The courts of the state of Queensland and all courts competent to hear appeals therefrom. |
11.6 Governing Law and Venue. Unless overridden by a designation of governing law and venue in the applicable Jurisdiction Specific Terms relevant to Customer’s place of domicile, as described in the table in Section 11.5 above, this Agreement is governed by and is to be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and treated in all respects as an Ontario contract. The Parties further irrevocably and unconditionally submit any claim arising hereunder to to the exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom.
11.7 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.8 Notices. To Maropost: Notice will be sent to the contact address set forth in the jurisdiction-specific Tables in Section 11.5 above, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided by you in the Order or Order Form you completed for your initial Subscription Term, and populated in our Maropost Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.9 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy at https://maropost.com/legal/privacy-policy) is the entire agreement between us for the Subscription Service and Consulting Services, and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Your obligations are not contingent on the delivery of any future functionality or features of the Subscription Service, or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only, and will not be interpreted to modify the English version of this Agreement.
11.10 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Maropost Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.11 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.12 Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
11.13 Survival. The following sections will survive the expiration or termination of this Agreement: 1, 3, 4.6, 4.8, 5, 6, 7, 9, 10, and 11.
11.14 Precedence. In the event of a conflict between the terms of this General Terms and the various agreements incorporated by reference herein, the provisions of the agreements listed in the following order of precedence shall control:
1. The DPA
2. The Jurisdiction Specific Terms
3. The Acceptable Use Policy
4. The Product Specific Terms
5. The Order Form
6. The General Terms
