CommerceHQ Inc. ("CommerceHQ") provides an ecommerce platform and other Software as a Service (SaaS) subscription services as further described in these Terms and on the Website (as defined below). These Terms apply to anyone signing up to create an account either directly through the Website or through an Order Form (as defined below) in order to access and use the Services provided under these Terms ("Client").

THESE TERMS CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY CREATING AN ACCOUNT, REGISTERING FOR THE SERVICE THROUGH THE WEBSITE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN INDIVIDUAL YOU REPRESENT AND WARRANT THAT ARE THE AGE OF MAJORITY IN THE COUNTRY IN WHICH YOU RESIDENT (AND SHALL NOT PROCEED IF THIS IS NOT THE CASE). IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO AGREE TO THESE TERMS AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE, ANY OF ITS CONTENT OR ANY OF THE SERVICES.

1. DEFINITIONS

   "Agreement" means these Terms and the applicable Order Form as submitted by Client and accepted by CommerceHQ pursuant to Section 2.1.

   "Aggregated Client Data" means data collected by CommerceHQ for the purpose of providing the Service for Client that can no longer by linked to Client or does not identify or permit identification of a client.

   "Client Content" means images, graphics, text, data, links or other creative elements supplied by Client to CommerceHQ.

   "Client Data" has the meaning given to it in Section 5.2.

   "CommerceHQ Technology" means the CommerceHQ proprietary technology that allows CommerceHQ to provide the Services.

   "Documentation" means "how to" user guides and reference materials on the Website for the Service.

   "End User" means a customer or end user of Client, or an individual who interacts with Client.

   "End User Data" means any data in respect of an End User.

   "Fees" means the applicable subscription fees payable by Client to CommerceHQ for the right to receive access to the Service and Support Services, all as further described on the Website and in the Documentation.

   "Intellectual Property" means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing rights;

   "Order Form" means a form used by Client to subscribe for some or all of the services offered by CommerceHQ as described in that form and subject to these Terms, either through an automated process on the Website or by of an electronic form.

   Pattern Data means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, mobility patterns, location data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Client or its end users and is data which does not relate to a specific Client’s business (including data relating to a specific Client’s locations that receive the Services).

   Payment Account means a payment account through Stripe, PayPal or such other similar third party payment service provider with whom CommerceHQ integrate their service and as selected by you at the time of registering for the Service or as otherwise subsequently agreed with CommerceHQ.

   Service means the ordered by Client either through submission of an Order Form to CommerceHQ or through the order process as may be clearly set out on the Website from time to time and which CommerceHQ have confirmed in writing that CommerceHQ agree to provide to Client, subject to these Terms;

   Stores means a unique online store-front;

   Term has the meaning given in Section 7.1;

   Third Party Software has the meaning given in Section 2.9; and

   Website means commergq.com or such other URL as indicated by CommerceHQ from time to time where information and access to the Service is available.

2. LICENSE TERMS

   1. Agreement: An Agreement shall be deemed to have come into force on (i) Client having submitted an Order Form to CommerceHQ; and (ii) CommerceHQ having sent Client written confirmation (by email, through the Website or otherwise) confirming acceptance of such Order Form.
   2. Creating an Account. Client must create an account through the Website or through submission of an Order Form in order to use the Services (and may do so at the time as submitting an Order Form to CommerceHQ). To create an account, Client will be asked to provide certain basic information in order to purchase/use the Services. This information may include Client’s company name, address, main contact person including that person’s telephone number, email address and credit card details. All financial information is held by CommerceHQ's payment gateway and CommerceHQ will hold Client’s personal information in accordance with the terms of the CommerceHQ Privacy Policy https://commercehq.com/privacy-policy. Client is responsible for all activities that occur in its accounts and for maintaining the security and confidentiality of any login details to such accounts. When creating an account Client may be required to select and subscribe to a subscription plan which include different options for different modules and features of the Service.
   3. Account Owner: For the purposes of our Terms of Service, the individual signing up for the Service ("Account Owner") will the person duly authorized to access and use any account CommerceHQ may make available for use by the Client in relation to the Service. Account Owner details and identity may be altered through the Service by Account Owner. CommerceHQ may at its discretion accept communications from the Company to alter the details and identity of its Account Owner, but shall not be obliged to so and accepts no liability for any action of any Account Owner in respect of a Client’s account.
   4. Payment Account: Once Client has signed up for the Service, a Payment Account will be created by Commerce HQ on Client’s behalf using Account Owner’s email address. Client accepts that Account Owner, is solely responsible for activating and maintaining Client’s Payment Account(s). In the event that Client wishes to deactivate a Payment Account. Client will be responsible for their deactivation.
   5. Commercial License. Subject to payment of the applicable Fees, CommerceHQ hereby grants to Client a non-exclusive, non-transferable internal license to use and access the Website and user interface for the purpose of using the Service in accordance with the terms of the applicable Order during the Term. The functionality of the Service available to Client shall be solely as set out in the Order, and without limiting the foregoing: (i) may not include all of the functionality available to all users of the Services; (ii) may receive different service levels; and (iii) may have be able to have differing numbers of live Stores at any one time, depending on the level of Service selected by Client in the Order. On creation of Client’s account, Client will be able to create Client’s own login details enabling direct access to its Services for multiple levels of access by Client’s permitted users. Client may have the ability to trial, subscribe, suspend and unsubscribe from modules (both paid and free modules depending on Client’s subscriptions) of the Service.
   6. License Restrictions. All software provided is licensed; not sold. Client shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party. Client shall not (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (ii) circumvent any user limits or other use restrictions that are built into the Services; or (iii) access the Services in order to build a competitive product or Services or (copy any ideas, features, functions or graphics of the Service.

   7. Restrictions on Use of the Services. Client shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass CommerceHQ’s network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the CommerceHQ Technology or modify, alter, or deface any of the trademarks, servicemarks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to Client. Client further shall not use the Services in a manner that:

      (a)  Infringes or violates the intellectual property rights or any other rights of anyone else (including CommerceHQ);

      (b)  Violates any law or regulation, including any applicable export control laws;

      (c)  Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

      (d)  Jeopardizes the security of Client’s CommerceHQ account or anyone else’s (such as allowing someone else to log in to the Services as Client);

      (e)  Attempts, in any manner, to obtain the password, account, or other security information from any other user;

      (f)  Violates the security of any computer network, or cracks any passwords or security encryption codes;

      (g)  Runs any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Client are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); or

      (h)  “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means).

   8. Lawful purposes. Client will at any and all times meet Client’s obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Client’s country, including applicable rules that govern the export or import of software and laws relating to collection and use of personal information. Client agree to use the Services solely for lawful purposes only. In this respect Client may not, without limitation (i) use the Services to manage any illegal operations, (ii) sell or make available through the Service, or permit the making available of, any goods, services or content which is illegal or violates the laws of any jurisdiction in which they are offered or in which either Client of CommerceHQ operate or which is otherwise damaging to the goodwill and reputation of CommerceHQ (as determined by CommerceHQ); (iii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website), (iv) send any unsolicited commercial communication not permitted by applicable law; or (v) endanger any part of any system or Internet connection of CommerceHQ or any third party through Client’s use of the Service.
   9. Third Party Software. The technology underlying the Service may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the CommerceHQ Technology falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to Client on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of account access.

3. SERVICE TERMS.

   1. Provision of Service. Conditioned on the terms and conditions of this Agreement and payment of the Fees, CommerceHQ shall make the Service and the Support Services available to Client during the term of Client’s subscription.
   2. Service Responsibilities. The Service has built in help features to assist Client in troubleshooting and resolving problems encountered while using the Service. For matters that cannot be resolved CommerceHQ may be contacted on the contact information set out on the Website under ‘Support’.
   3. Incremental Services. From time to time, additional CommerceHQ or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by CommerceHQ to Client (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Client for additional fees in accordance with any additional terms and conditions specified by CommerceHQ.
   4. Service Limitations. The Service is not a back-up service and accordingly CommerceHQ will not be responsible for any lost data due to server crashes or other events outside CommerceHQ’s reasonable control. However, CommerceHQ maintains a 7-day continuous backup of all data on its servers to minimize the impact of any server crashes.

4. PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY.

   1. Exclusive Ownership. Except for the rights and licenses granted in this Agreement, Client acknowledges and agrees that any and all intellectual property rights to or arising from the software and technology used to provide the Website and Service are and shall remain the exclusive property of CommerceHQ and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, Client. Client are only entitled to the limited use of the intellectual property rights granted to Client in this Agreement. Client will not take any action to jeopardize, limit or interfere with CommerceHQ's intellectual property rights. Any unauthorized use of CommerceHQ's intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
   2. Client Data. As between Client and CommerceHQ, Client owns and retains ownership of Client content that Client provides, stores or processes through the Service including personal information Client provides about Client’s End Users (“Client Data”). Client hereby grant CommerceHQ a worldwide, royalty-free, and non-exclusive license during the term of Client’s subscription to access Client Data in order to: (i) provide the Services, including storing, hosting and management of such Client Data; (ii) create Pattern Data and (iii) otherwise use anonymized Client Data (including without limitation the content of End User interactions with Client through Service) for the purpose of improving the Service. Together Sections 5.2(i), (ii) and (iii) constitute the “Content License”). Client understands that CommerceHQ, in performing the required technical steps to provide the Services, may (a) transmit or distribute Client Data over various public or private networks and in various media; and (b) make such changes to Client Data as are necessary to conform and adapt that Client Data to the technical requirements of connecting networks, devices, Services or media. Client confirm and warrant to CommerceHQ that Client has all the rights, power and authority necessary to grant the above Content License and that use of the Content in the manner contemplated will not breach the rights of any third party. For the avoidance of doubt, any End User Data that comes into Client’s possession through any SNP as part of the Service shall be subject to the SNP Terms.
   3. Content Responsibilities. Client is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to CommerceHQ for CommerceHQ to transmit, host and store. For greater certainty, Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify CommerceHQ promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
   4. Suggestions. CommerceHQ shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Services.

5. CONFIDENTIALITY

   1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, Client Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
   2. Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
   3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.
   4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

6. TERM AND TERMINATION

   1. Services Period and Renewals. The Agreement shall apply as from the date specified in the applicable Order Form and shall expire (i) on the date stated in that Order Form, if a fixed-term is selected; or (ii) if a fixed budget is selected, on the date when the total budget chosen by the Client is exhausted.
   2. Termination for breach. Without prejudice to any other rights and remedies, either Party may terminate the Agreement with immediate effect by written notice to the other Party: (a) if the other commits a material breach of any of its obligations under the Agreement and in the case of a remediable breach, fails to remedy it within seven (7) days of the date of receipt of notice from the other specifying the breach and requiring it to be remedied; or (b) on the occurrence of a force majeure event that has continued for a minimum period of two months; (c) in the event that either Party becomes insolvent, goes into liquidation, appoints an administrative receiver or analogous proceedings under relevant local law. Expiration or termination (for any reason) of the Agreement shall not affect any accrued rights or liabilities which either Party may then have nor shall it affect any clause which is expressly or by implication intended to continue in force after expiration or termination.
   3. Services Suspension or Termination by CommerceHQ. Without limiting other remedies, CommerceHQ may limit, suspend, or terminate this license and Client’s use of the Services, prohibit access to the Website and delete Client’s user account and/or user ID, with immediate effect, if any outstanding invoices are more than 30 days past due, if we think that Client are in breach of this Agreement, creating problems, legal liabilities (actual or potential), acting inconsistently with respect to our policies (which can be found on the Website) infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. CommerceHQ shall effect such termination by providing notice to Client to the email address Client has provided (if any), and/or by preventing Client’s access to Client’s account.
   4. Effect of Termination. Upon termination of this Agreement, the Services shall terminate and CommerceHQ will terminate Client’s account thirty (30) days after a failure to renew Client’s subscription, if Client has closed Client’s account or if this Agreement is terminated for any other reason. CommerceHQ will not be liable in respect of any damage caused by the termination of this Agreement or closure of Client’s account.

7. FEES AND PAYMENT TERMS

   1. Payment type (pre-paid or post paid): Client’s access to the Service will either be pre-paid by Client or post-paid as determined in under the Order Form. For pre-paid use of the Service, Client must provide valid credit card information when prompted to do so by the Service. For post-paid use of the Service, Client must satisfactorily complete CommerceHQ’s credit screening process. The Service will not go live until Client has either pre-paid for the Service or has been approved by CommerceHQ for Postpaid Payment. The CommerceHQ Service will be charged on the basis in the Order Form.
   2. Invoicing: Client will receive monthly invoices from CommerceHQ. Unless specified otherwise in the Order Form, Client shall pay all amounts due, without set-off, within 30 days from the invoice date. All payments to CommerceHQ shall be made in the currency of the invoice, and are quoted exclusive of any applicable tax which shall be payable at the time and in the manner required by law. Any dispute in respect of an invoice must be raised within one month of receipt. Unless stated otherwise in the Agreement, all invoices shall be payable solely by Client.
   3. Late Payment: CommerceHQ shall be entitled to charge interest at the lesser of 1.5% per month or the greatest amount permitted by law, together with all recovery cost, on all overdue amounts. If Client is fifteen (15) days or more late in paying fees invoiced by CommerceHQ, CommerceHQ will have the right to suspend the Service and/or block Client's access to the Service.

8. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT

   1. Updates to Agreement. CommerceHQ reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website and/or providing a copy of this Agreement to Client’s account by email. The revised Agreement shall become effective within ten (10) business days of such publication or provision to Client, unless Client expressly accept the revised Agreement earlier by clicking on the accept button. Client’s express acceptance or Client’s continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Client’s acceptance to be bound by the terms and conditions of the revised Agreement.
   2. Changes to CommerceHQ Technology. CommerceHQ may alter, update or upgrade the CommerceHQ Technology from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
   3. Changes to Fees and Services. CommerceHQ may change the Services, any Services fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to Client by posting the change on the Website, sending notice via an email to the email address Client provide on registration, a message on Client’s invoice, in writing, or any other notice method likely to come to Client’s attention. If Client do not accept the change, Client’s sole recourse is to terminate the Services. Client’s continued access to and use of the Services after the change has come into effect constitutes Client’s acceptance of the change and Client acknowledges and agrees that (i) Client will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Client will continue to be responsible to pay for the Services unless Client terminates in accordance with Section 8.3.

9. LIABILITY PROVISIONS

   1. NO WARRANTIES. COMPANY CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE AND ALL COMPANY TECHNOLOGY ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER; COMPANY DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. COMPANY FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR COMPANY TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES COMPANY WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
   2. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY COMPANY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF COMPANY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL COMPANY ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $50.
   3. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF COMPANY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY COMPANY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED $50.
   4. THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER COMPANY NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH

10. INDEMNIFICATION

    1. Client Indemnity. Client agree on demand to indemnify, defend and hold CommerceHQ, its affiliates and CommerceHQ staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of Client’s (a) violation of any rights of any third party, or (b) willful or grossly negligent misuse of the Services, or (c) violation of any laws in the use of the Service, or (d) breach of section 2.7 of these Terms.

11. GENERAL TERMS

    1. 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 or shortages of materials.
    2. Client Services. For assistance with questions regarding this Agreement or the Services, if Client has other enquiries, or if Client require further assistance regarding use of the Services provided by us, please contact us using the contact details located here: https://landingchat.com/support
    3. Logos. CommerceHQ may refer to Client in CommerceHQ’s Client list and may use Client’s corporate name and logo for this purpose. For the avoidance of doubt, CommerceHQ will not use Client’s name, logo, any other trademark or trade-name of Client’s for any other purposes without Client’s prior consent.
    4. Third Party Relationships. CommerceHQ or its business partners may present Services offerings, advertisements or promotional materials via the Services. Client’s dealings with, or participation in promotions of any third-party business partners via the Services are solely between Client and such third party and Client’s participation is subject to the terms and conditions associated with that offering, advertisement or promotion. Client agree that CommerceHQ is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
    5. Third-party Services. The Services may present links to third-party Web sites or third-party Services not owned or operated by us. We are not responsible for the availability of these third-party sites or Services or their contents. Client agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with Client’s use of or reliance on any content of any such third-party site or Services or goods or Services available through any such third-party site or Services.
    6. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between Client and CommerceHQ with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
    7. Severability & Waiver. Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If CommerceHQ does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
    8. Assignment. Client are not allowed to assign this Agreement or any rights hereunder without the prior written consent of CommerceHQ, such consent not to be unreasonably withheld. CommerceHQ is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
    9. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Client’s current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12. REFUNDS AND CANCELLATIONS

    1. We do not offer refunds on any of our monthly or yearly plans, under any circumstances. Enrolling in any of our plans is a mutual agreement between all parties. We agree to provide you with software and you agree to pay for it until canceled. Anyone who is under a monthly or yearly plan please take note that each payment is expected on time. If for any reason a payment is not made, the account will become past due and deleted within 14 days.

13. MERCHANT DATA PROCESSING AMENDMENT FOR GDPR

    1. As part of the new GDPR regulations we are required to have available and use a Data Processing Agreement, or Amendment. Our Amendment follows.
       This Data Processing Amendment (the “Amendment”) amends our Terms of Service (the “Agreement”) between yourself and CommerceHQ inc, based out of 8171 Yonge Street, Suite 365, Thornhill, ON L3T 2C6, Canada (the “Company,” or “Us,” or “We”)

14. DEFINITIONS FOR GDPR

    1. (a) “Personal Data” as used in this Amendment means information relating to an identifiable or identified User data who interacts with transactions through your store (the “Customer”); for which we may act as a Data Processor while managing the Services on your behalf. For the purposes of this Amendment Personal Information does not include information or data and we process during interactions directly with consumers.
    2. (b) “Data Processor”, “Data Subject”, “Processor”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with applicable Data Protection Legislation;
    3. (c) “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC, and any legislation and/or regulation implementing or made pursuant to them, or which amends or replaces any of them (including the General Data Protection Regulation, Regulation (EU) 2016/679);

15. DATA PROTECTION AMENDMENT FOR GDPR

    1. Where there is a User located in the EU Economic Area, that User’s Personal Information will be processed by our Affiliate. As a result of this part of the Services, this Personal Information may be transferred to other geographic regions, which may or may not be located in the European Economic Area. Any such data transfers will be processed in compliance with the GDPR’s Data Protection legislation.
    2. In the event we process Personal Information while providing the Services, we will:
       
       a. Process such data solely for the purpose of meeting our obligations in accordance with the instructions you have provided us for how we are to process the personal information; so long as the instructions are permitted without the Services we provide. In the event, as a matter of law or regulation, we may be required to process the personal information for any other reason, we will provide you with advance notice, unless prohibited by any such law or regulation.
       
       b. Provide you with notification that your instruction to us for the processing of Personal Information violates or infringes relevant Data Protection Law, Legislation or
       
       c. Notify you within the required time frame upon receipt of an inquiry or complaint from a User, Supervisory Authority or other entity with authorization to make such an inquiry or complaint, related to our processing of the Personal Information.
       
       d. Modify, change or correct our processes and procedures for processing the Personal Information in order to avoid unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These steps will be in accordance with guidelines intended to prevent unlawful processing, accidental loss, destruction, damage or theft of Personal Information and in accordance with the type of Personal Information being protected.
       
       e. At your request, provide you with all relevant and current data and reports related to any such breach as monitored by a third-party provided engaged to audit our user information and data protection practices. In addition, or alternatively we may provide reports and certifications which shall be sufficient to your needs in accordance with this Amendment.
       
       f. Notify you promptly upon becoming aware of and identifying any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Information.
       
       g. Have in place policies and procedures to ensure that employees or third-party entities who have access to the Personal Information have executed our Confidentiality Agreements which restrict any such party’s ability to disclosure such Personal Information.
       
       h. In the event of termination of the Agreement, we will take appropriate and required steps to delete or anonymize the Personal Information. You have the right to request a file containing the Personal Information within sixty (60) days of termination.
    3. We hereby notify you, and you acknowledge and understand, that in providing the Services, we may retain the services of Subprocessors to process the Personal Information. Our use of Subprocessors shall be in compliance with the Data Protection Legislation and will be in accordance with an agreement between us and the Subprocessor.

Last Updated: May 7, 2018.