Terms of Service

Unless otherwise provided in the Subscription Agreement, Services are purchased by Clients and provided as subscriptions. Subject to your compliance with this Agreement and your payment of any applicable fees, the Company grants you a non-transferable, non-exclusive, worldwide right to access and use the purchased Services during the subscription term set out in a Subscription Agreement ("Subscription Term").

Unless otherwise set out in the Subscription Agreement, Service fees are payable monthly in advance within 30 days after the date of invoice. All fees are exclusive of taxes, levies or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies or duties (excluding taxes based on the Company's income), even if such amounts are not listed on a Subscription Agreement. Client shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties without set-off or deduction.

The Services contains Content owned by the Company, its suppliers or licensors ("Content"). The Company, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Content. The Services and Content are protected by copyright, trademark, patent, trade secret and other laws.

As an Account holder, you may submit and publish Client Content on the Service. Client Content is the Content that you upload to the Service. You are exclusively responsible for all Client Content and the consequences of submitting and publishing your Content on the Service. Please choose carefully the Content that you post on the Service. We do not verify the accuracy, quality, content or legality of Client Content. We may, but are under no obligation to, monitor, view, analyze or edit any Client Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. The Company will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Client Content.

In using the Services you hereby grant the Company full rights to anonymize your Service Data and information so that it does not identify you as a user, identify specific transactions carried out by you, or contain any other confidential user information ("Anonymous Data"). You agree that the Company: (i) has full ownership over Anonymous Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data (hereafter "Aggregate Data"); (iv) has the right to use the Aggregate Data on an Aggregate Basis (as defined below) only in the furtherance of the Company's business; and (v) may disclose, sell and publish Aggregate Data on an Aggregate Basis to any party through any means. "Aggregate Basis"refers to the combination of parts of information collected or processed from the user, not containing the user's name, with other information from any or all other users of the Services. The Company asserts that user information used on an Aggregate Basis will not be used in a manner that discloses any individually identifiable information about the user or any specific transactions in which the user has engaged.

The Company is prohibited from disclosing user information other than on an Aggregate Basis (as defined below), except in accordance with the Privacy Policy or with your express consent.

Our collection and use of your information and information regarding Customers is governed by our Privacy Policy. You understand that through your use of the Services, you consent to the collection and use of this information, including the transfer of this information to Canada, the United States, and/or other countries for storage, processing and use by us. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.

The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than the Company ("Third Party Services"). To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your Accounts to such Third Party Services. You expressly permit us to share Client Content in conjunction with the Third Party Services and Client Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather data from you and your Customers.

All Services are provided "as is" and on an "as available" basis. Neither the Company nor its suppliers or representatives make any warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or noninfringement. The Company makes no representation, warranty or guarantee that the Services will meet Client's or any Customer's requirement or expectation, that will be accurate, complete or preserved without loss, or that the Services will be timely, secure, uninterrupted or error-free. The Company does not guarantee that security measures will be error-free and will not be responsible or liable for unauthorized access beyond its reasonable control. The Company will not be responsible or liable in any manner for any Client properties, third party products, third party content, or non-Company services (including for any delays, interruptions, transmission errors, security failures, and other problems caused by these items), for regulated data received from the Client in breach of this Agreement, for the collection, use and disclosure of Data authorized by this Agreement or for decisions or actions taken (or not taken) by Client based upon the Services. Client acknowledges that the Company is not a business associate or subcontractor. The disclaimers in this section shall apply to the maximum extent not prohibited by applicable law, notwithstanding anything to the contrary herein. Client may have other statutory rights. However, any statutorily required warranties under applicable law, if any, shall be limited to the shortest period and maximum extent permitted by law.

We will indemnify, defend and hold harmless Client from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Client to the extent based on an allegation that the Company's technology used to provide the Services to the Client infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in Canada or the United States. In no event will we have any obligations or liability under this section arising in whole or in part from any content, information or data provided by Client, Customer or other third parties. The Company shall not be required to indemnify Client in the event of: (a) modification of the Services by Client, its employees, or contractors in conflict with Client's obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by the Company if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement.

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY'S OR ITS SUPPLIERS' TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO THE COMPANY FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 11 EXCLUDES EITHER PARTY'S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY'S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 11 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (together "Confidential Information" of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Client Data and your ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (v) is required by law. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.

This Agreement shall commence on the date set out in the first Subscription Agreement and shall remain in effect through the end of the Subscription Term in any current Subscription Agreement, unless terminated earlier pursuant to the terms of this Agreement (the "Initial Term"). Your subscription will automatically renew at the end of the Initial Term for one additional 1-month term (the "Renewal Term") unless you provide us with written notice of your intent not to renew at least one (1) day before the expiration of the Initial Term. You must cancel the Services at least one (1) day prior to the expiration of the Initial Term in order to avoid being billed for the Renewal Term. Payment for Services for the Renewal Term is due on the first day of the Renewal Term and will automatically be charged to the account that you used for the original subscription. The renewal price will be the same price as for the prior 1-month subscription term unless we give you advance notice of a price change.

Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:

"Account" means the Measured account, which is linked via OAuth 2.0 to your Shopify account, used by Client to access and use the Service."Applicable Laws" means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used.

"Business Partners" means affiliates, licensors, or clients, customers, other users and other third parties that the Company does business with.

"Client Data" means non-anonymized electronic data pertaining to Client, the Users and the Customers that is collected and/or processed using the Service, including personal information, login credentials, and other information that relates to such parties' use of the Service.

"Content" means any all content, data and other materials including, without limitation, images, trademarks, html e-mail codes, live streams, documentation, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials.

"Customer" means any customer that uses or views the Client Content, including your customers.

"Customer Data" means the electronic data concerning the characteristics and activities of Customer (including personal information of such Customer) collected and analyzed by the Service relating to such Customer use or viewing of the Client Content.

"Person" means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.

"Product Overview" means the overview of the Services to be provided to a Client set out in the Subscription Agreement.

"Users" means Client's employees, representatives, consultants, contractors or agents who are authorized to use the Services for Client's benefit and have unique user identifications and passwords for the Services.

"Measured App" means the code, technology and servers used in the operation and provision of the Services and includes the Documentation and Software.