Terms of Service
GURI E-ARTS Inc., operating as AllReach Digital, a Canadian corporation with offices at 5 Sweeny Lane, Bridgewater, NS, Canada, B4V 3V1 (“AllReach”, “we”, “us” or “our”) provides the AllReach Services to Merchants (each as defined below).
These Terms of Service (the “Terms”) governs Merchant’s acquisition and use of the AllReach Digital Services. are incorporated by reference into and made a part of any Order Form (as defined below) and govern the relationship between you and AllReach Digital . All Order Forms are subject to acceptance by AllReach Digital , in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of Merchant, to these Terms.
1. DEFINITIONS
“Agreement” means these Terms, including its schedules and the Order Form to which these Terms are attached or referenced.
“Confidential Information” means (i) any and all information disclosed by one party to the other which is marked “confidential” or “proprietary”, or similar designation or which the recipient knows or has reason to know is regarded by the disclosing party as confidential, including information shared verbally and (ii) any “Personal Information”, as defined by applicable privacy and personal information protection laws, disclosed by End Users to Merchant. “Confidential Information” does not include any information that the receiving party can demonstrate: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
“Documentation” means any manuals, instructions or other documents or materials that AllReach Digital provides or makes available to Merchant in any form or medium and which describe the functionality, components, features or requirements of the AllReach Digital Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Employee” means an individual or contractor who works for or provides services for Merchant.
“End User” means an individual who Merchant contacts or connects with using the AllReach Digital Service, either via web or mobile (through SMS email or another mean), to communicate with Merchant in respect of Merchant’s Services.
“Fees” means the fees payable by Merchant to AllReach Digital for the right to receive access to and use the AllReach Digital Service and Support Services including all subscription fees as outlined in the Order Form.
“Initial Term” means the initial length of time that Merchant has subscribed to the AllReach Digital Service for, as outlined in the Order Form.
“Locations” are the number of regions or physical locations outlined in the Order Form for which Merchant has access to use the AllReach Digital Service, which may be added to/deleted from at the discretion of Merchant.
”Merchant Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Merchant or an End User by or through the AllReach Digital Service.
“Merchant Services” means the service or product provided by Merchant.
“AllReach Digital Platform” means the proprietary technology used by AllReach Digital (i.e., servers, databases etc.) that collects Merchant Data from Merchant, End Users and Employees and which also enables communication between devices as part of the AllReach Digital Service and facilitates provision and receipt of the AllReach Digital Service between Merchant and the End User.
“AllReach Digital Service” means the provision of access to the AllReach Digital Platform (as modified and/or developed from time to time) to allow Merchant to communicate, connect and transact with End Users. The End Users can communicate with Merchant through web, mobile or SMS that are all part of the AllReach Digital product offering & services. This includes the provision and solicitation of feedback for Merchant, connection for purposes of facilitating referrals & introductions and general contact for purposes of marketing. Capabilities of the AllReach Digital Service are described in more detail on the Website.
“Offering” has the meaning provided in Section 2.4.
“Order Form” means an ordering document or online order specifying the AllReach Digital Services to be provided hereunder that is entered into between AllReach Digital and Merchant
“Merchant” means in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms.
“Renewal Term” has the meaning provided in Section 8.1.
“Resultant Data” means information, data and other content that is derived by or through the AllReach Digital Service from processing Merchant Data and is sufficiently different from such Merchant Data that such Merchant Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Support Services” means any services and features provided by AllReach Digital in support of or supplemental to the AllReach Digital Service including online training, analytics, support as purchased by Merchant in the Order Form.
“Technology” has the meaning provided in Section 2.6.
“Term” has the meaning providing in Section 8.1.
“Website” means AllReach Digital.com, or such other URLs as AllReach Digital shall provide for the AllReach Digital Service from time to time.
2. SERVICES AND RESPONSIBILITIES
2.1 Provision of AllReach Digital Service. Subject to and conditional on compliance with the terms and conditions of this Agreement by Merchant and its End Users, during the Term, AllReach Digital shall use commercially reasonable efforts to provide to Merchant and its End Users the AllReach Digital Service described in the Order Form and this Agreement.
2.2 AllReach Digital Platform Access. Subject to the terms and conditions of this Agreement, AllReach Digital grants to Merchant and its Employees during the Term a non-exclusive, non-transferable right to access to use the AllReach Digital Platform to access and use the AllReach Digital Service for Merchant’s internal business purposes. The license granted herein is granted solely to Merchant and not, by implication or otherwise, to any parent, subsidiary, or affiliate of Merchant.
2.3 Account Access. Merchant shall be provided with login details enabling direct access to its database of Merchant Data, analytics and reports based on the same. Merchant shall have the ability to edit and add to content which is in its database and account. Merchant is responsible for all activities that occur in Employee accounts and for maintaining the security and confidentiality of any login details to such accounts.
2.4 Merchant Responsibilities. Merchant understands that any payments, purchases, charges, promotions, rewards, credits, loyalty points, offers or other offerings (“Offerings”) that they offer to their End Users through the AllReach Digital Service or AllReach Digital Platform are solely Merchant’s responsibility. AllReach Digital cannot, will not and is not liable in any circumstance, for any change, misrepresentation or termination of the Offerings. Merchant understands and acknowledges that all payment transactions will be processed through a third-party payment processor, as described below. AllReach Digital will provide Merchant with a secure link to upload payment details. Merchant understands that if they elect not to provide details through this secured link and/or directly with third party payment providers, AllReach Digital disclaims all responsibility and liability for any and all losses resulted from misuse of the said information and Merchant agrees to hold AllReach Digital harmless and to indemnify AllReach Digital from any claim arising due to failure to use such secured link or otherwise provide the information directly to the third party payment providers. Any dispute between the End User and Merchant related to an Offering is the sole liability of Merchant. Merchant understands that the Locations which they have subscribed to for the AllReach Digital Service cannot be transferred. Merchant understands and agrees that some of the AllReach Digital Services are intended to allow Merchant to send transactional and/or informational messages to Merchant’s own current End Users only. Should Merchant elect to use the Services to send any messages that constitute advertising or telemarketing, or to communicate with anyone other than Merchant’s current End Users, Merchant will only do so in compliance with all local, provincial, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions and any applicable prohibitions on unsolicited communications legislation (which may include without limitation the CAN-SPAM Act and Canada’s Anti-Spam Legislation).
2.5 AllReach Digital Service Responsibilities. AllReach Digital shall use commercially reasonable efforts to (i) maintain the security and integrity of the AllReach Digital Service and Merchant Data; and (ii) make the AllReach Digital Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by a force majeure event as defined in section 10.8.
2.6 Facilitation Responsibilities. In order to access the AllReach Digital Service, Merchant understands that they must provide their Employees with hardware, software, telephone, internet and mobile internet services (“Technology”). Merchant understands that all costs and functions relating to the Technology is solely their responsibility and AllReach Digital is not and will not be deemed responsible, whether financially or otherwise, for the performance, use, theft, malfunction or loss of the Technology by Merchant or their Employees.
2.7 Use Restrictions. Merchant shall not (and shall not allow any person to):
a) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or create derivative works based on the AllReach Digital Service or Website or access the AllReach Digital Service or Website in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions of the AllReach Digital Service;
b) circumvent any user limits or other timing or use restrictions that are built into the AllReach Digital Service or attempt to gain unauthorized access to parts of the AllReach Digital Service or AllReach Digital Platform which are not made available to Merchant by AllReach Digital ;
c) input or access data from the AllReach Digital Service while navigating a vehicle which is in motion or other dangerous or illegal use;
d) resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the AllReach Digital Service (or any of its components) available to any third party without AllReach Digital ’s prior written consent;
e) use the AllReach Digital Service to (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights;
f) otherwise access and use the AllReach Digital Service beyond the scope of Section 2.2; or
g) attempt to deliberately damage or undermine the legitimate operation of any third-party payment processing services used in connection with the AllReach Digital Service, which could be a violation of criminal or civil laws. Should such an attempt be made, AllReach Digital reserves the right to seek remedies and damages to the fullest extent permitted by law.
2.8 Google, Facebook & Other Third-Party Services. Merchant understands that use of the AllReach Digital Service to connect with Google, Facebook or other third party services (“Third Party Services”) is at their own discretion and Merchant assumes all responsibility for abiding by each respective Third Party Service terms and conditions, and for paying all amounts that may be owing in respect of any use of such third Party (including without limitation where AllReach Digital is granted administrative access to such Third Party Services and undertakes any actions on behalf of Merchant). If an integration is included in the AllReach Digital Service, Merchant grants AllReach Digital the right to access Merchant’s information or CRM system directly or through the applicable Third-Party Service for the purposes of fulfilling AllReach Digital ’s obligations under this Agreement, and Merchant warrants that Merchant is not restricted by law or applicable agreement from granting AllReach Digital such right. AllReach Digital will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through AllReach Digital by Merchant or its End Users. Additionally, AllReach Digital may make arrangements with third-party providers, or facilitate Merchant making arrangements with third-party providers, who provide products or services in connection with the AllReach Digital Services described in this Agreement. If Merchant uses third-party products in connection with the AllReach Digital Service, those products may make third-party content available to Merchant and may access Merchant’s instance of the AllReach Digital Service, including Merchant Data. AllReach Digital does not warrant or support third-party products or third-party content (whether or not these items are designated by AllReach Digital as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the AllReach Digital Service, including their modification, deletion, disclosure or collection of Merchant Data. AllReach Digital is not responsible in any way for Merchant Data once it is transmitted, copied or removed from the AllReach Digital Service.
2.9 Beta Releases and Free Access Subscriptions. AllReach Digital may provide Merchant with certain AllReach Digital Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage AllReach Digital Service, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Merchant’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. AllReach Digital may use good faith efforts in its discretion to assist Merchant with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, MERCHANT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, MERCHANT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH AllReach Digital WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT MERCHANT’S SOLE RISK. AllReach Digital makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. AllReach Digital may terminate Merchant’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in AllReach Digital ’s sole discretion, without liability.
2.10 Third-Party Payment Processor. AllReach Digital uses Stripe Payments Canada, Ltd.(“Stripe”) as a third-party payment processor. Stripe provides certain payment processing services (the “Stripe Services”) that support and facilitate payment processing using the AllReach Digital Service. The Stripe Services and Sections 2.10- 2.17 of this Agreement only apply to Merchants who opt to complete payment processing transactions using the AllReach Digital Platform. The Stripe Services allow Merchants to charge and accept payments from End Users for products or services purchased through the AllReach Digital Platform. All transactions processed through the AllReach Digital Platform are subject to the Stripe Services Agreement, as amended, and the Stripe Privacy Policy, as amended (collectively, the “Stripe Services Agreements”). Merchant agrees to be bound by and adhere to the terms of the Stripe Services Agreements. In order to process a payment transaction through the AllReach Digital Platform, End User’s will be required to provide Personal Information, including payment information such as credit card account number, CVV code and expiration date. End User Personal Information is sent directly to Stripe for payment processing. Merchant is expected to actively engage in providing payment details using the payment links provided by AllReach Digital . Merchant understands that if any other method of providing payment details is provided, AllReach Digital disclaims all responsibility and liability for any and all losses resulted from misuse of the said information and Merchant agrees to hold AllReach Digital harmless and to indemnify AllReach Digital from any claim arising due to failure to use such secured link or otherwise provide the information directly to the third party payment providers. Stripe will also receive other information pertaining to the transaction including purchase amount and date of purchase. For all transactions, standard credit card processing fees apply.
2.11 Erroneous or Fraudulent Transactions. Merchant acknowledges and agrees that it is solely responsible for any and all losses incurred due to erroneous or fraudulent transactions. Merchant is solely responsible for the nature and quality of the products or services purchased by the End User. Merchant affirms that it is solely responsible for delivery, support, refunds, returns, reversals, duplicate transactions, discrepancies, disputes and claims in relation to the products or services. AllReach Digital is not responsible for and has no liability in relation to Merchant products or services purchased using the AllReach Digital Service.
2.12 Timing of Transactions. AllReach Digital does not make any representation, warranty, condition or guarantee regarding the time it will take for a transaction to be processed.
2.13 Refusal to Complete a Transaction. AllReach Digital , acting in its sole discretion, may refuse to complete a transaction if AllReach Digital believes that there is a risk, such as a potential breach of a law or regulation, associated with completing the transaction.
2.14 Prohibited Countries. Stripe Services may not be available to End Users residing in certain prohibited countries, or countries where Stripe is not supported.
2.15 Unlawful Activities. Merchant agrees not to engage in any activity whatsoever, which is unlawful, fraudulent, deceptive or abusive in relation to Stripe Services or any other third-party payment processor.
2.16 Change of Third-Party Payment Processor. From time to time, AllReach Digital may change the third-party payment processor it uses to support the AllReach Digital Service, or AllReach Digital may elect to itself perform some or all of the services that were previously provided by the third-party payment processor, if so, Merchant may be required to agree to additional terms imposed by AllReach Digital .
2.17 Stripe Services. AllReach Digital is not responsible or liable to Merchant for any indirect, punitive, incidental, special consequential, or exemplary damages resulting from the use or inability to use the Stripe Services or for the unavailability of the Stripe Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to Stripe Services. AllReach Digital is not responsible or liable for any damages or losses arising from or relating to hacking, tampering or any other unauthorized access or use of the Stripe Services.
2.18 LOCALPHONE SERVICES. MERCHANT UNDERSTANDS THAT LOCALPHONE IS A VOICE OVER INTERNET PROTOCOL (“VOIP”) PHONE SERVICE MADE AVAILABLE BY THE AllReach Digital WEB-BASED AND MOBILE APPLICATIONS, BOTH OF WHICH REQUIRE INTERNET CONNECTIVITY, MEANING THEY DO NOT SUPPLY THEIR OWN POWER UNLIKE TRADITIONAL LANDLINE INSTRUMENTS. MERCHANT ALSO UNDERSTANDS EMERGENCY CALLS CANNOT BE MADE FROM VOIP PHONES IF THERE IS NO INTERNET CONNECTIVITY FOR ANY REASON WHATSOEVER. THUS, MERCHANT AGREES THAT LOCALPHONE WILL NOT BE USED FOR EMERGENCY CALL PURPOSES NOR WILL IT BE USED AS THE MAIN PHONE CONTACT FOR DOING BUSINESS. WITHOUT LIMITING THE FOREGOING, MERCHANT ACKNOWLEDGES THAT THE AllReach Digital SERVICES ARE NOT INTENDED, DESIGNED OR FIT FOR PLACING, CARRYING OR SUPPORTING ANY CALL TO ANY EMERGENCY SERVICE OR ANY CALL FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF AN EMERGENCY. NEITHER AllReach Digital NOR ITS LICENSORS ARE OR WILL BE LIABLE TO MERCHANT OR ANY THIRD PARTY IN ANY RESPECT FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF THE SOFTWARE FOR EMERGENCY CALLS, INCLUDING CALLS TO EMERGENCY SERVICES AND CALLS FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF AN EMERGENCY
3. PROPRIETARY RIGHTS
3.1 Ownership and Proprietary Rights. Except for the rights and licenses granted in this Agreement, AllReach Digital owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights) in the AllReach Digital Service, (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof) and the Resultant Data. Merchant acknowledges that AllReach Digital shall have the sole right to maintain, enhance or otherwise modify the AllReach Digital Service.
3.2 Branding. The AllReach Digital Service shall be branded according to the requirements of AllReach Digital . Merchant may use AllReach Digital ’s branding solely for purposes of marketing and providing the AllReach Digital Service; provided, however, that Merchant shall comply with any trademark use guidelines communicated by AllReach Digital to Merchant. Merchant shall promptly inform AllReach Digital in writing of any known violation of AllReach Digital ’s branding. Any use of AllReach Digital ’s branding shall inure to the benefit of AllReach Digital . Merchant agrees it will not use, register or otherwise appropriate any name, mark or logo which is similar to or may be confused with any of AllReach Digital ’s branding apart from agreed branding that incorporates the AllReach Digital name.
3.3 Reservation of Rights. Except as set forth in Section 2, AllReach Digital reserves all rights and grants Merchant no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
3.4 Publicity. All press releases and other public announcements under this Agreement shall be approved by both parties in writing prior to release, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, AllReach Digital may identify Merchant as a customer of AllReach Digital Services through use of Merchant’s logo and/or written description on the AllReach Digital website and within its sales and marketing materials.
4. PAYMENT TERMS AND TAXES
4.1 Fees and Payment Terms. Merchant will pay all Fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) Fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the relevant subscription term; and 9iv) all Fees are exclusive of applicable taxes. All currency and payments are calculated in the currency as indicated on the Order Form.
4.2 Payment Agreement. Merchant agrees to pay the Fees as outlined on the Order Form. Merchant authorizes AllReach Digital to charge Merchant for all outstanding Fees, taxes and charges and outstanding account balances due under this Agreement, and this constitutes AllReach Digital ’s good and sufficient authority for so doing. Merchant is solely responsible for all charges incurred under Merchant’s account by Merchant or Locations.
4.3 Monthly License Fee. During the Initial Term the fees payable per calendar month are outlined in the Order Form.
4.4 Administrative Costs. To the extent that Merchant does not fulfill its obligations under sections 4.1-4.3, resulting in non-payment or returned or rejected payments, AllReach Digital may bill Merchant a re-activation, re-billing or other related fees to reinstate the AllReach Digital Service. All administrative charges charged to Merchant must be indicated on the Order Form.
4.5 Late Charges. Payments shall be made to AllReach Digital in full without set-off, counterclaim or deduction. Past due amounts shall bear an overdue payment charge, until paid, at the rate of one- and one-half percent (1.5%) per month.
4.6 No Deductions or Set-Offs. All amounts payable to AllReach Digital under this Agreement shall be paid by Merchant to AllReach Digital in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
4.7 Taxes. AllReach Digital ’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Merchant is responsible for paying all Taxes associated with its purchases hereunder. If AllReach Digital has the legal obligation to pay or collect Taxes for which Merchant is responsible under this section, AllReach Digital will invoice Merchant and Merchant will pay that amount unless Merchant provides AllReach Digital with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AllReach Digital is solely responsible for taxes assessable against it based on its income, property and employees.
5. CONFIDENTIALITY & PRIVACY
5.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to affect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information. This Article shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving party, its affiliates or its advisors according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
5.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
5.3 Compliance with Privacy Laws. Merchant shall comply with all privacy and personal information protection laws that are applicable to End User Personal Information if such information is provided to Merchant. Merchant acknowledges and agrees that any breach by Merchant of its obligation to comply with all privacy and personal information protection laws would result in significant damage to AllReach Digital that would not be completely compensable monetarily, and hereby agrees that AllReach Digital shall be entitled to injunctive relief in a court of appropriate jurisdiction in the event of the violation or threatened violation by Merchant of any privacy and/or personal information protection laws.
5.4 Privacy Policy. AllReach Digital will provide the AllReach Digital Services in accordance with the Privacy Policy, as listed at allreachdigital.com/privacy. Merchant also acknowledges that it agrees to be bound by the terms of the privacy policy of any third-party payment processor providing payment processing services to AllReach Digital .
5.5 Notification of Security Breach. Merchant shall notify AllReach Digital as soon as possible of any suspected or actual breach of Merchant’s security of which Merchant becomes aware that may compromise the safeguarding of Confidential Information and/or Merchant Data, including, without limitation, any unauthorised access to or entry into Merchant’s premises, computer systems or databases or security incidents involving Employees.
5.6 Merchant Data
a) Rights in Merchant Data. As between the parties, Merchant retains all right, title and interest (including any intellectual property rights) in and to Merchant Data. Merchant hereby grants AllReach Digital a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of Merchant Data solely to the extent necessary to provide the AllReach Digital Service and related services to Merchant and as otherwise provided herein.
b) Resultant Data. Merchant agrees that AllReach Digital will have the right to generate Resultant Data. The parties agree that Resultant Data is AllReach Digital intellectual property, which AllReach Digital may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve AllReach Digital ’s products and services and to create and distribute reports and other materials). AllReach Digital will not distribute Resultant Data in a manner that personally identifies Merchant or its End Users, or that would otherwise violate applicable law. If Merchant and AllReach Digital have entered into a BAA, AllReach Digital will use the Resultant Data only in conformity with the terms of such agreement.
c) Monitoring. Merchant understands and agrees that AllReach Digital , and any third-party platform(s) Merchant uses or accesses in connection with the AllReach Digital Service, may monitor and analyze Merchant Data submitted by Merchant and its End Users (including but not limited to reviews, surveys, messages, chats, etc.) to improve the AllReach Digital Service or third-party platform; to improve Merchant’s experience using the AllReach Digital Services or third-party platform; to customize and communicate informational or product offerings and promotions to Merchant; to ensure compliance with the acceptable use policy (including taking corrective action permitted therein); and/or to make the AllReach Digital Services, or third-party platform more helpful or useful to Merchant and other users.
d) Security. AllReach Digital agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. AllReach Digital takes no responsibility and assumes no liability for any Merchant Data other than its express security obligations in this Section unless the Merchant has separately entered into a Business Associate Agreement with AllReach Digital . If Merchant shares any protected health information using AllReach Digital ’s platform absent a BAA, Merchant does it at their own risks.
e) Storage. AllReach Digital does not provide an archiving service. During the Initial Term, Merchant acknowledges that AllReach Digital may delete Merchant Data no longer in active use. Except for requirements that are included in any BAA entered into between AllReach Digital and Merchant, AllReach Digital expressly disclaims all other obligations with respect to storage.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each party represents and warrants that: (a) it has all requisite power, financial capacity and authority to execute, deliver and perform its obligations under this Agreement; and (b) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of that party.
6.2 AllReach Digital Warranties. AllReach Digital represents and warrants that during the Term (i) it will provide the AllReach Digital Service and Support Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the AllReach Digital Service shall perform materially in accordance with the Documentation. For greater certainty, AllReach Digital does not warrant that use of the AllReach Digital Service will be error-free or uninterrupted.
6.3 Merchant Warranties. Merchant represents and warrants to AllReach Digital that: (i) it has licenses, approvals and authority necessary to provide Merchant services to End Users; (ii) Merchant services meet all relevant safety and inspection standards and Merchant maintains in place valid and appropriate insurance coverage; (iii) any information or content submitted to AllReach Digital or through the AllReach Digital Platform does not infringe the intellectual property or personal rights of any third party; and (iv) Merchant will comply with these Terms of Service, and, if applicable, the AllReach Digital Restricted Business Policy; (v) Merchant will comply with all applicable laws and be responsible for the provision of Merchant services to End Users In particular, and without limitation, Merchant warrants and represents that it will not use the Service in a manner that would violate any obligation with respect to CASL, CANSPAM, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999 and any other applicable federal, state, or international law and amendments thereto.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE AllReach Digital PLATFORM, AllReach Digital SERVICE AND SUPPORT SERVICE ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND AND AllReach Digital DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. AllReach Digital DOES NOT WARRANT THAT USE OF THE AllReach Digital PLATFORM OR AllReach Digital SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR WILL MEET MERCHANTS OR END USER’S EXPECTATIONS.
7. INDEMNITY
7.1 Indemnification by AllReach Digital . AllReach Digital shall defend and indemnify Merchant against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Merchant by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Merchant for third party claims alleging that the use of the AllReach Digital Service as contemplated hereunder infringes the Canadian or US patent or copyright of a third party (“IP Claims”), subject to the condition that Merchant (a) promptly gives written notice of any IP Claim to AllReach Digital ; (b) gives AllReach Digital sole control of the defense and settlement of each IP Claim; and (c) provides to AllReach Digital , at AllReach Digital ’s cost, all reasonable assistance in respect to each IP Claim.
7.2 Mitigation. If (a) AllReach Digital becomes aware of an actual or potential IP Claim, or (b) Merchant provides AllReach Digital with notice of an actual or potential IP Claim, AllReach Digital may (or in the case of an injunction against Merchant, shall), at AllReach Digital ’s sole option and determination: (I) procure for Merchant the right to continue to use the AllReach Digital Service; or (II) replace or modify the AllReach Digital Service (or the affected components) with equivalent or better functionality so that Merchant’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the AllReach Digital Service and refund to Merchant any pre-paid Fees for any periods after the termination of the AllReach Digital Service, less any outstanding moneys owed by Merchant to AllReach Digital .
7.3 Exclusions. The indemnity in Section 7.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the AllReach Digital Service furnished by AllReach Digital with other products, software or services not provided by AllReach Digital ; (2) any IP Claim related to any Merchant Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the AllReach Digital Service outside the scope of the rights granted in this Agreement.
7.4 Merchant Indemnity. Merchant shall indemnify, defend, and hold AllReach Digital (including its officers, directors, agents, and employees) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and/or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from AllReach Digital by reason of any Claim arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property caused by any act, error or omission, or misconduct of Merchant or its Employees; (b) violation of any law or regulation by Merchant (including, without limitation, any privacy or personal information protection law or regulation); or (c) breach of any warranties or other terms in these Terms of Service or Restricted Business Policy by Merchant; and (d) provision of Merchant’s Services or Offering. AllReach Digital shall notify Merchant promptly of any Claims, permit Merchant to control the defense and settlement of such Claims (provided that AllReach Digital may participate with counsel of its own choosing, at its own expense), and assist Merchant, at Merchant’s expense, in defending or settling such Claims.
8. TERM AND TERMINATION
8.1 Term. Unless terminated earlier pursuant to Section 8.2 below, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term. Client cannot cancel or terminate unless either party gives (30) thirty days during the Initial Term except as expressly permitted by Section 8.3 (Termination for Cause).Thereafter, the term of the Agreement will be automatically continue (any such subsequent on-going term referred to in this Agreement as a “Renewal Term”), unless either party gives at least sixty (60) days prior written notice of termination to the other party. AllReach Digital reserves the right to change fees to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting, or discontinuing certain Bundle offers) temporarily or permanently for the AllReach Digital Service upon not less than 65 (65) days of written notice. AllReach Digital also reserves the right to replace certain Services and Bundles with functionally equivalent Services or Bundles, at its sole discretion.. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
8.2 Suspension of Service. AllReach Digital may suspend Merchant’s access to the AllReach Digital Service if: (i) Merchant’s account is overdue or (ii) Merchant has exceeded its Scope of Use limits. AllReach Digital may also suspend Merchant’s access to the AllReach Digital Service, remove Merchant Data or disable third-party products if it determines that: (a) Merchant has breached the provision of the Agreement or (b) suspension is necessary to prevent harm or liability to other Merchants or third parties, including any third-party payment processor, or to preserve the security, stability, availability or integrity of the AllReach Digital Service. AllReach Digital will have no liability for taking action as permitted above. For avoidance of doubt, Merchant will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, AllReach Digital will cooperate with Merchant to restore access to the Service once it verifies that Merchant has resolved the condition requiring suspension.
8.3 Termination for Cause. Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Merchant terminates during the Agreement for any reason other than the foregoing, Merchant will be responsible for the fees due for the then current Term. AllReach Digital may also terminate this Agreement immediately if Merchant breaches Sections 2.4, 2.7, 5 or 6.3, for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
8.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Merchant’s license rights shall terminate and it must immediately cease use of the AllReach Digital Service and delete (or, at AllReach Digital ’s request, return) any and all copies of any AllReach Digital documentation, scripts, passwords or access codes and any other AllReach Digital Confidential Information in Merchant’s possession, custody or control and (ii) Merchant’s right to access any Merchant Data in the applicable Service will cease and unless otherwise precluded by a BAA, AllReach Digital may delete any such data in its possession at any time. If AllReach Digital terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Merchant. Merchant understands and agrees that all Fees paid are non-refundable, including without limitation any Fees paid during any configuration or set-up period where the full functionality of the AllReach Digital Services may not be available. Where the Agreement is terminated by Merchant other than due to cause during the first 12-month period, any set-up or equivalent Fees that may have been waived under any Order will become payable in full notwithstanding such waiver in an Order Form. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5 Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 3.1, 3.3, 5-7, 8.4, 9 and 10 and any payment obligations incurred prior to the expiration or termination of this Agreement. In the event that AllReach Digital is acquired, sold or re-named, the surviving or acquiring entity shall not be relieved of its obligations under this Agreement.
9. LIMITATION OF LIABILITY
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL AllReach Digital OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3 IN NO EVENT SHALL AllReach Digital , ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO MERCHANT IN AGGREGATE FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE FEES PAID TO AllReach Digital BY MERCHANT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
9.3 NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10. GENERAL PROVISIONS
10.1 Assignment. This Agreement shall not be assigned or transferred by Merchant, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of AllReach Digital . Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any assignment in violation of this Section 10.1 shall be null and void from the beginning and shall be deemed a material breach of this Agreement.
10.2 Waiver and Amendment. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. We may revise this Agreement from time to time and the most current version will always be at https://www.allreachdigital.com/term-of-use/. If the revision, in our sole discretion, is material we will notify you via an update or e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Agreement
10.3 Choice of Law. This Agreement shall be governed by the laws of the Province of Nova Scotia, Canada excluding all conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The courts of NS shall have exclusive jurisdiction to resolve any dispute arising pursuant to this Agreement.
10.4 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the AllReach Digital Service, the AllReach Digital materials or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations.
10.5 Notices. Standard communications may be delivered by email. All formal notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to Merchant’s address set forth on the Order Form. AllReach Digital ’s address is 5 Sweeny Lane, Bridgewater, NS, Canada, B4V3V1. Notice shall be considered delivered and effective on the earlier of actual receipt or: (a) the day following transmission if sent by email when followed by written confirmation by registered overnight carrier or certified mail; or (b) four (4) days after posting when sent by certified mail.
10.6 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
10.8 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than forty-five (45) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
10.9 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.