Marketing 360™ Terms of Service
Last updated on November 5, 2021.
Last updated November 05, 2021.
These terms of service (“Terms of Service” or “Terms”) apply in respect of all products and services (collectively, “Services”) offered by Etoile Marketing Solutions, Inc. and/or any of its parent, affiliated, or related companies (collectively with ETOILE MARKETING SOLUTIONS, INC., “Company”, “us”, “we”, “our”), whether directly or through any Third Party Providers (defined below), in connection with or otherwise relating to the Marketing 360™ software platform (the “Marketing 360 Platform”). Subject to the terms of your Service Agreement (defined below), the Services may include access to the Marketing 360 Platform and/or creative services (such as design services, photography services, and general design and development services), video production services, customer relationship management services, email marketing services, reputation management services, social media management services, website hosting services, digital advertising management services, access to the Top Rated Local™ small business review platform, and/or access to the Websites 360™ small business website platform. Each of the various software platforms that may be included within the Services is referred to herein as a “Platform”, and collectively, as the “Platforms”. The words “include”, “includes”, and “including” as used in these Terms will be deemed to be followed by the words, “without limitation”. The term “Applicable Laws”, as used herein, refers to any applicable federal, provincial, local, and international statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any applicable governmental authority.
These Terms are deemed to be incorporated into every contract (“Service Agreement”) between Company and the person or entity contracting for the Services (“Client”, “you”, “your”), whether such person or entity so contracts as principal (“Advertiser”) or as agent (“Agency”). If Agency contracts for the Services on behalf of Advertiser, Agency and Advertiser acknowledge that Agency is the duly appointed and authorized agent of Advertiser and agree that Advertiser shall be jointly and severally liable with Agency under these Terms. Neither Company nor any Third Party Provider (as defined below) shall be bound by any terms or conditions in any insertion order or otherwise that conflict with these Terms or that attempt to impose any additional obligations on Company or such Third Party Provider, except as may otherwise be expressly agreed to by Company in a writing signed by an authorized officer of Company.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISCLAIMERS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
1. About the Services and these Terms of Service. Company offers two types of plans to Clients in respect of the Services: (i) a “Do It Yourself” (“DIY”) plan, which includes access to the Marketing 360 Platform but does not include a Services package pursuant to which Services would otherwise be provided to Client by or on behalf of Company; and (ii) a “Do It For Me” (“DIFM”) plan, which includes access to the Marketing 360 Platform, as well as a dedicated Marketing Executive or team to help with your Marketing 360 Platform account and perform certain Services for you. Your Service Agreement will outline the Services applicable to your account, the term of our Agreement, and the fees for such Services. Fees may be one-time, monthly and/or annual depending on the nature of the Services requested. You may add additional one-time or recurring Services at any time during the term of this Agreement by either communicating your request via email or verbally communicating the request to your Marketing Executive or Company representative, as applicable. Any and all Services so added shall be governed by this Agreement, unless otherwise agreed by Company in a writing signed by an authorized officer of Company. Client acknowledges that certain Services – including advertisement placements on third party websites, platforms or properties, reputation management services, and social media management services – may be provided by Company using the technology, platforms and/or services of third party providers or suppliers (each, a “Third Party Provider”). Each product, service, and associated deliverable provided by Company using a Third Party Provider is provided to Client subject to the Agreement, including the limitations of liability set out herein, as well as any additional policies and terms that such Third Party Provider may require (including, if and as applicable, Facebook, Instagram, Snapchat, Bing, Twitter, Waze, Kickstarter, Indiegogo, Pandora, Spotify, and Google’s advertising policies and/or terms, as these may be updated from time to time).
2. Description of Various Service Elements.
a. Ads/Ad Credits. We offer two types of plans with respect to advertising: the Model A Plan (described in Section 2l, below) and the Model B Plan (described in Section 2m, below). Under the Model A Plan, advertising credits (“Ad Credits”) may be purchased and used to run advertisements across digital platforms using the Top Placement Ads, Retargeting Ads and Social Targeting Ads programs. Ad Credits may be allocated to media buy (paid placement), campaign management, and campaign optimization, however media buy allocation of Ad Credits may be subject to change without notice. A more detailed explanation of Ad Credits, how they are allocated, and the current media buy allocation percentage can be found at www.marketing360.ca/how-ad-credits-work. Ad Credit costs, including cost-per-click reporting and more, are reflected through the Top Placement Ads, Retargeting Ads, and Social Targeting Ads programs within the Marketing 360 Platform for return on investment (ROI) and cost-per-conversion tracking/analysis. Ad Credits are subject to the terms and conditions of the applicable Third Party Provider (e.g. Google, Bing, YouTube, Facebook), and some services may not be available for some Client products or services. You may access a performance report which includes raw data on costs, clicks, and impressions at the Google advertising account level at any time by clicking the applicable link within the Marketing 360 Platform dashboard, available in the top right-hand corner of the Top Placement Ads, Retargeting Ads or Social Targeting Ads pages on your Marketing 360 Platform dashboard. Ad Credits are non-refundable but may be allocated to other Services with a written request (email acceptable). If you cancel your recurring Ad Credit Service, your Ad Credits on file will remain in your account for one billing cycle and must be used or transferred to another Service during your next monthly billing cycle or may be forfeited. If we are developing a website for you pursuant to this Agreement, your Ad Credits and related Services cannot be used until your site has gone live with your approval. Actual ad positioning on third party websites is based on several factors, and positioning cannot be guaranteed. If applicable, and unless instructed otherwise, your Marketing Executive will strive to optimize your Top Placement Ads campaign to target the top three ad positions for your keywords where possible. Adjustments, reinstatements or refunds relating to the positioning or placement of any ad are at our sole discretion. In any billing cycle, Company may spend any Ad Credits that you have on file. Company will monitor your Ad Credit spend to keep you on budget, but in rare cases Company may spend over and above the amount of Ad Credits you have on file. Any balance of your Ad Credit budget remaining at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle. Any negative balance remaining at the end of the Term (defined below) is due at that time. We use a master advertising account with each Third Party Provider of Ad Credit services. If applicable pursuant to your Service Agreement, we will set up an advertising account for you within our master advertising account. You acknowledge that you must use our master advertising account in order to use Ad Credits for these services. Because all of our accounts are linked within our master advertising accounts, we will not provide access to you to view or control your advertising or analytics accounts at the advertising account level of the respective Third Party Provider. If available under your plan, you may get a report of your advertising performance and Ad Credit usage by logging into the Marketing 360 Platform or by contacting your Marketing Executive or Company representative.
b. Base Plan. Each DIY plan and DIFM plan includes a limited licence to access and use the Marketing 360 Platform for the Term, subject to the terms of this Agreement. Your Service Agreement will outline your specific monthly Platform fee (the “Base Fee”). As consideration for the Base Fee, the following Services are made available to you: a limited licence to access and use the Marketing 360 Platform during the Term, including the conversion inbox within such Platform, subject to the terms of this Agreement; either one Websites 360 website licence or five Creative Credits; a limited licence to access and use the Email Marketing 360 system within the Marketing 360 Platform during the Term, subject to the terms of this Agreement; access to on-demand creative Services (additional charges may apply); a limited licence to access and use the client relationship management system within the Marketing 360 Platform (the “CRM”) during the Term, subject to the terms of this Agreement; a Top Rated Local account; storage for up to 10GB of files in the cloud; website hosting for one website; the Local Listing Ads program for one local business location; and a customer support pin number. While each of these Services is available for accounts that are current on their monthly Base Fee, some Services may not be utilized for your account depending on your specific marketing goals. Please note, some Services may require additional funds or credits to run or be utilized. By way of example, you will need to purchase Ad Credits or Content Credits in order to utilize Services related to such credits. You may only use Ad Credits or Creative Credits on file if you are current on your monthly Base Fee. Some Services that by their nature require a live website in order to be utilized may not be utilized until your website goes live. Please note, some Third Party Services may not be available for all Clients based on the terms and conditions of the applicable Third Party Provider. If applicable, your Marketing Executive will work with you to develop a plan designed to address your marketing goals based on your specific needs, considering your location, budget, and other factors. If we are developing a website for you, your platform login may not be provided until your site is completed and goes live with your approval. The term “Marketing Client”, as used herein, refers to any active Client that is current on the payment of the Base Fee. The term “Non-marketing Client”, as used herein, refers to any Client that has not contracted for access to the Marketing 360 Platform or is not current on the payment of the Base Fee.
c. Complimentary Promotions. We occasionally offer complimentary promotions to new Clients entering into a Service Agreement. Complimentary promotions may take the form of funds, credits or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless otherwise stated, complimentary promotions may be used to offset any cost associated with the Service Agreement, with the exception of third party advertising media buy. Any complimentary promotions are contingent on Client’s fulfillment of the Initial Term (defined below). If you cancel this Agreement prior to fulfilling the Initial Term, you must promptly pay back all complimentary promotions applied to your account at the time of cancellation, in addition to any applicable Early Cancellation Fees (defined below).
d. Creative Services/Creative Credits. Our creative Services include custom website design (see Section 2f, below), logo design, photography services, and general design and development time. All creative services are offered in consideration of creative credits (“Creative Credits”). If applicable, your Service Agreement, Marketing Executive and/or Company representative will outline your specific creative services package and our estimated Creative Credit bid for the creative services. The Creative Credit bid is an estimation, based on information received from you at the time of offer as to the projected total time to be spent on the design and development of your project. The Creative Credit bid should not exceed the total number of Creative Credits listed on your Service Agreement. In the event additional Creative Credits are required to complete your project, you will be notified before any additional charges beyond the initial cost estimate are incurred. In the event of increased costs, we will proceed only after receiving approval (written or oral) and payment from the Client. Your approval of any Creative Credit increase shall be binding and incorporated into this Agreement. Any unused Creative Credits paid for by Client will remain in Client’s account until the earlier of the termination or expiration of the Term (defined below) and one year from the date of payment, at which time such unused Creative Credits will expire. You may purchase Creative Credits to be used for any creative Services. The Creative Credit cost per Service is available upon request. Creative hours, complimentary creative hours and Creative Credits are non-refundable. Creative hours, whether or not complimentary, expire at the end of the Term. Creative hours or Creative Credits may not be transferred to other Services without our prior written consent. Your Company representative can provide you with the current rates for our creative Services. We will strive to complete your creative Services project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the creative Services.
e. CRM. The CRM is a customer relationship management system within the Marketing 360 Platform that is designed for small and medium-sized businesses, and is included in both DIY and DIFM plans. You may use the CRM to manage up to 25,000 leads, contacts or customers. Additional leads, contacts or customers may be managed using the CRM at an additional cost. You may add team members, create up to 20 custom fields, assign tasks, track deals and sales pipelines, assign contacts to specific team members, and use the CRM on your phone or desktop computer, provided you are connected to the internet. If you sign up for the CRM, a CRM specialist will contact you to walk you through the CRM Service and answer any initial questions you may have. Following that initial contact, either a Marketing Executive or a CRM specialist may assist you with any questions via email or via phone during our normal business hours. Your access to the CRM may be suspended or terminated if you dispute any payment or fail to make any required payment. We are under no obligation to store or maintain your CRM records if your CRM account has been suspended or terminated. If you have signed up for a CRM trial, you will have complimentary access to the CRM for the trial period, after which you will need to pay the applicable fees for either a DIY plan or DIFM plan to have access to the CRM. All fees paid for the CRM are non-refundable. Provided your CRM account has not been suspended or terminated, you may log into the system and export a .csv file of your CRM data at any time. You are fully responsible for the information that you upload to the CRM. The CRM is not intended to process or store sensitive, protected, or proprietary information, personal health information or other health data, financial data, or personal data that is subject to the European Union General Data Protection Regulation (“GDPR”) or the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199) (“CCPA”); and you agree not to use the CRM or any other Services to process or store any such information. You acknowledge that the CRM is not designed to be used by health services providers. You further acknowledge that the CRM is not PCI compliant, and you agree not to store financial data, social security or social insurance numbers or payment processing data within the CRM.
f. Custom Website Design. Our custom website design Services consist of the creation of a website for the Client that is not based on one of our pre-existing designs and that is developed pursuant to an hourly bid and scope of work agreed by the Client. If you purchase a custom website design upon entering into your Service Agreement, your Service Agreement will prominently display the words “Custom Website Design”. Websites 360 and UXi websites are not custom website designs.
g. eCommerce Website Design. Through our ecommerce website design Services, we can incorporate ecommerce functionality on your website by means of one or several Third Party Provider ecommerce website platforms (e.g., BigCommerce, Shopify, WooCommerce, Websites 360 Shop App, etc.). If you purchase ecommerce website design Services upon entering into your Service Agreement, these Services may appear on your Service Agreement as “Shopify Design,” “WooCommerce Design,” “Woo360 Design,” or “BigCommerce Design”. The GoLive Package, described below in Section 2i is included with your purchase of ecommerce website design Services. Unless you have also contracted for custom website design Services, a website will be developed for you based on our standard website design layouts. If you require specialized functionality and/or complex design features, you will need to contract for a custom website design. If you contracted for custom website design Services upon entering into your Service Agreement, those Services will be clearly stated as “Custom Website Design” on your Service Agreement and will include both a scope of work and an estimated work hour quote. Additional information regarding custom website design is included in Section 2f, above.
h. Email Marketing 360. Email Marketing 360 is an email marketing system that allows you to design, create, and send targeted marketing campaigns to your email marketing list through the Marketing 360 Platform. Email Marketing 360 is available under either the DIY Plan or a DIFM Plan and includes up to 2,500 emails per month. Email messages in excess of 2,500 per month are provided at an additional cost. If you exceed 2,500 emails per month, excess charges will accrue, and you will be billed for these charges in arrears with any subsequent monthly payment. To inquire about these excess charges, contact your Marketing Executive or Company representative. Unused messages do not roll over from month to month. You represent that you will use Email Marketing 360 in compliance with all Applicable Laws. Without limiting the generality of the foregoing, you agree to not use Email Marketing 360 in a way that is obscene, harassing, threatening, or libelous, or in any way that violates or infringes upon any third party intellectual property rights or that violates or contravenes any applicable anti-spam laws or regulations.
i. GoLive Package. The “GoLive Package” is a Service consisting of the design of a Client website based on your choice of one of our standard website design templates, including the population of up to 20 webpages on that website with Client Material (defined below) or, alternatively, the provision of content writing services for up to 10 webpages on that website at up to 300 words per page. This package includes up to three rounds of revisions at no additional charge. If needed, more time beyond the three initial rounds of revisions may be added at an additional cost. Once your website is built and approved, we will bring your website live.
j. Launch Package. We offer a “Launch Package” for various Services in the DIY Plan to help you get your Services off the ground. Each “Launch Package” includes an initial 1-hour kickoff call with a project manager to help you get started. The “Launch Package” for Websites 360 involves the design of a homepage and theme, based on the website template selected by the Client, as well as the creation of a navigation structure for the website and a 1-page walkthrough on how to edit the website. The “Launch Package” for CRM involves the creation of one contact form to be used on your website. The “Launch Package” for Email Marketing 360 involves the creation of one website-branded email template for the Client to use as a starting point. Once your initial setup is complete, your project manager will join you for a 1-hour coaching call to review your Services, give you tutorials, and schedule the launch of your website.
k. Listings/Local Listing Ads. The Listings or Local Listing Ads program is used to add, update, sync, enhance, and monitor your local business listings across dozens of local sites through the Marketing 360 Platform. This program is available for Marketing Clients with a physical business location. Included with the Base Fee is a Listings account for one location. Additional listings locations are available at an additional charge.
l. Model A Plan. As noted above in Section 2a, two types of plans are available with respect to advertising: the Model A Plan and the Model B Plan (described in Section 2m, below). Under the Model A Plan, Client will purchase Ad Credits, and ads will be run through our master advertising accounts using those Ad Credits. This is the default advertising plan for all Clients. If your Service Agreement doesn’t specify which advertising model you are using, you are under the Model A Plan.
m. Model B Plan. Under the Model B Plan, Client does not purchase Ad Credits, but instead pays a monthly optimization fee (the “Optimization Fee”) to Company. As consideration for that Optimization Fee, Company will manage Client’s ad campaigns. Client will be responsible for purchasing ads directly from the applicable Third Party Provider in Client’s own advertising accounts. Client agrees to provide Company with admin access to these accounts during the Term. Your Marketing Executive will work with you to determine your anticipated monthly spend prior to your monthly bill each month and adjust your monthly invoice accordingly, in advance. If your actual spend exceeds your anticipated spend by more than 10%, your next monthly invoice may be adjusted accordingly to accommodate the overspend.
n. Call Tracking/My Click-to-Calls. If you choose to utilize the Call Tracking a/k/a My Click-to-Calls Service, calls will be recorded for tracking purposes so that we may analyze the performance of ads and optimize accordingly. Call recording may be deactivated if needed while leaving call tracking in place by request. Two inbound call tracking phone numbers are included with the Base Fee; additional numbers may be purchased for an additional cost per month. After cancellation of your Marketing 360 account, you may maintain your Call Tracking number(s) for a monthly fee. Five hundred Call Tracking minutes per month are included with your Marketing 360 account. Additional tracking minutes are available at an additional charge.
o. Content/Natural Listing Ads. Content credits, also known as Natural Listing Ads credits or NLA credits, (“Content Credits”) may be purchased and used for content and natural listing ads Services (“Content Services”), including to provide written, graphic design video and other content for your website or social media profiles for DIFM accounts with a monthly or one-time Content Credit budget. Content Credits may be used to execute such things as SEO keyword research, website optimization, title tag and meta description optimization, link quality auditing, disavowing bad links, internal linking optimization, blog architecture optimization, image tag optimization, social media network optimization, Google Maps listing optimization, page schema markup, page content creation and optimization, blog post writing and optimization, SEO optimized infographic design, guest blog posting for link building, video production and more. All Content Credit usage is determined by Company based on what we estimate will have the greatest impact on organic growth. Depending on your marketing goals, Content Services may begin as soon as you are entered into our system, however, in some cases, it may not make sense to use Content Credits until your website has gone live. Your Marketing Executive and/or Content team members will determine the ideal allocation of your resources depending on your goals. Content Credits are non-refundable, but may upon written request (email acceptable) be allocated to other Services, except for Ad Credits and related Services. If you cancel your recurring Content Services, your Content Credits on file will remain in your account for one billing cycle, and must be used or transferred to another Service during your next monthly billing cycle or may be forfeited. Unless otherwise specified, Content Services include the proactive posting of content to your website from time to time. You are solely responsible for the review and approval of all website content and must notify us promptly of any errors. Upon receiving notice of an error, our sole responsibility shall be to remove the erroneous content as soon as practicable. All content will be considered approved unless Client provides notice to us otherwise. You may log into the Marketing 360 Platform at any time to track Content credit usage and results. Additional Content credits may be added at any time in order for additional activities to be completed.
p. Print and Merchandise Services. Certain print and merchandise Services (e.g. for brochures, flyers, swag, business cards, etc.) may be available upon request. The timing and location of delivery or pick-up will depend on various factors. Contact your Marketing Executive or Company representative for further information.
q. Reputation Management. If you purchase reputation management Services, we will provide a dedicated Reputation Manager to help you manage your business’ online reputation. Your Reputation Manager will work with you to help improve your online reputation by reaching out to verified clients to solicit reviews on various review websites. Your Reputation Manager will also read and reply (with your permission) to reviews of your business posted throughout the internet, challenge verification on questionable reviews on the Top Rated Local Platform, and request customer feedback for reviews on the Top Rated Local Platform that are below three stars. The Reputation Management program is designed to be used together with the Top Rated Local program. All Reputation Management accounts include a Top Rated Local account.
r. SMS Marketing 360. SMS Marketing 360 is a text message marketing system that allows you to engage new and existing clients through the Marketing 360 Platform. SMS Marketing 360 may be used to create trackable, custom, automated SMS campaigns. Your Base Fee allows you to send up to 250 messages per month through the system at no additional cost. Excess messages will be charged at an additional rate. Any excess charges due will accrue over the month, and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused messages do not rollover from month to month. You are solely responsible for complying with all Applicable Laws in conjunction with your SMS Marketing 360 account, including Canada’s anti-spam legislation (S.C. 2010, c. 23) and the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5). Further, you are solely responsible for validating and keeping accurate records of your SMS recipient list, of the SMS messages sent using SMS Marketing 360, and of the consent granted by recipients to receive SMS messages from you, and for the content of all SMS messages sent.
s. Social Media Posts and Social Media Management Services. If you are a DIY Plan Client, you may use the Marketing 360 Platform to publish posts across your social media platforms. DIY Plan Clients may connect up to 10 social media profiles (additional profiles may be connected at an additional cost) and may publish a total of up to 500 posts per month (additional posts will incur an additional charge). If you are a DIFM Plan Client, you may purchase social media management Services (“Social Media Management Services”), in which case we will provide a dedicated Social Media Manager to help you manage your business’ social presence across your social media platforms and your Social Media Manager will work with you to help engage and interact with your followers, optimize your social media profiles, and create greater visibility and loyalty to your brand. For DIFM Plan Clients, Social Media Management Services include regular postings on applicable social media platforms, branding and design, regular monitoring and communication on platforms to engage with followers, and addressing (with your permission) comments, messages, posts and spam. The Service Agreement for DIFM Plan Clients will outline your specific plan (Basic, Standard or Advanced), including the monthly recurring price. The Basic Plan includes 4 posts per month on a maximum of two social media platforms, and up to 1 hour per month of engagement on your profiles. The Standard Plan includes 8 posts per month across a maximum of 3 social media platforms, up to 2 hours of engagement per month, and up to one video per month. The Advanced Plan includes 16 posts per month on a maximum of 4 platforms, up to 4 hours of engagement per month, and up to 2 videos per month. Additional services may be added at an additional cost. Ad Credits may also be added on demand for an additional monthly or one-time fee.
t. Top Rated Local. A Top Rated Local account is included in your DIY package with your Base Fee. You may upgrade to Top Rated Local Reputation Management Services account with a dedicated Top Rated Local Reputation Manager at any time for an additional fee. Top Rated Local is a program that allows you to monitor your online reviews and reputation. The Top Rated Local program includes your listing/profile, rating system, access to the rating and analytics dashboard, recommendations for improving your rating score, the ability to leave notes or replies to reviews on certain review platforms and the ability to embed Top Rated Local reviews and ratings on your website, and in many cases the ability to use the Top Rated Local trust badge on your website and marketing materials.
u. Trial Services. We may offer a time-limited free trial to allow you to evaluate some or all of our Services free of charge. With the exception of the terms specifically related to payment, all of these Terms apply to free trial accounts. Upon the expiration of the free trial, Client will no longer have access to the Services offered pursuant to the free trial, until valid payment for such Services is received.
v. Video Production. If video production Services are purchased upon Client’s entering into the Service Agreement, your Service Agreement will contain a project bid for video production Services, which bid is an estimation of the production time required for your project based on the information you have provided. This bid may include the time used by the Project Manager, designers, and video producer for planning, design and production services. Unless specifically stated, video production does not include filming or media capture. In the event that additional video production and design time is required for any reason, including as a result of any Client requests, increased scope of work, or design changes, the Client will be charged an additional rate. Additional hourly charges, if applicable, will apply to any time spent in excess of the estimated design and video production time. In the case of time over-runs, the Client will be notified before any additional charges beyond the initial cost estimate are incurred. We will proceed only after receiving approval (written or oral) from the Client. This Client approval shall be binding on Client. Once completed, all media will be delivered through email. If you have purchased a licence to use the Marketing 360 Platform in accordance with this Agreement, the media may also be incorporated into the Client’s website or in an advertisement. Delivery of the finished media will only occur if the Client has paid in full under the terms of the Service Agreement. We do not store or provide raw video footage after delivery of a completed project. All raw video footage may be deleted after delivery of the finalized media. If you want us to deliver the raw video footage, it may be available for an additional cost. You will also need to provide the removable storage drive for transport. Video production services necessarily require your input and cooperation. We will work with you to complete your video project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and purge any raw video footage, and you will forfeit any amounts paid for the video production Services.
w. Websites 360 Shop App. The Websites 360 Shop App add-on is a fully functional shopping cart add-on for use on your Websites 360 website. The Websites 360 Shop App may be added on to your Websites 360 website for an additional monthly or annual fee. With the Shop App, you are solely responsible for maintaining the confidentiality of all associated access credentials and you are solely responsible for any and all activities that occur using your access credentials. You may not use Websites 360 Shop App in violation of any Applicable Laws, including any applicable import and export laws and regulations and any Applicable Laws governing the content which you make available via the Service, or in ways that infringe the rights of others or interfere with other users or networks. You acknowledge that use of, or connection to, the internet may provide the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to your Websites 360 Shop App data. Accordingly, we cannot and do not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to the internet or represent that any such security precautions will be adequate or sufficient.
x. Websites 360 Site Only. Websites 360 Site Only is a service offered to DIY Plan Clients to allow you to create and publish a Websites 360 website, based on one of our templates. We require annual billing for this Service. You will have a one-hour kickoff call for basic website training and coaching. This is a directed call based on your questions. You will also receive access to the Websites 360 knowledge base for helpful articles and FAQs. For ongoing support, you will need to upgrade to the DIFM Plan. Websites 360 websites are a proprietary hosted solution compatible only with Company or its Third Party Providers’ servers and must be hosted by Company or its Third Party Providers. Websites 360 websites may not be migrated to another hosting platform.
y. Websites 360 Plus. Websites 360 Plus is a service offered to DIY Plan Clients, which includes Websites 360 website licence and design (up to 10 pages), up to 2 rounds of revisions, CRM (with setup), website forms (with setup) and Email Marketing 360 (with initial setup and 1 template design). We will also provide you with a one hour kick off call to give you a basic overview of the Service, 300 Creative Credits (additional Creative Credits are available for an additional fee), phone support during our business hours using your phone support pin, and access to our online knowledge base.
z. Website Hosting. Website hosting for up to one site is included with the Marketing 360 Platform for Marketing Clients upon request. Hosting for additional websites or for Non-marketing Clients is available at an additional charge, billed annually on a recurring basis. Website hosting for WooCommerce websites or additional websites or for Non-marketing Clients is also available at an additional charge. Website hosting includes up to 100GB of bandwidth per month. Hosting includes up to 500MB of data storage; additional storage will require additional fees. Additional bandwidth is available for an additional cost. Websites 360 and UXi are a proprietary hosted solution, compatible only with Company or its Third Party Providers’ servers and must be hosted by Company or its Third Party Providers. Neither Websites 360 websites nor UXi designs may be migrated to another hosting platform. Upon cancellation of any DIY Plan or DIFM Plan, UXi or Websites 360 website hosting may be purchased. If your hosting services continue after the cancellation of your DIY Plan or DIFM Plan, such hosting services will continue to be governed by these Terms. BigCommerce, Shopify and some other third party e-commerce site design files must be hosted on their respective servers. Upon cancellation of your DIY Plan or DIFM Plan, as applicable, BigCommerce and Shopify sites will continue to be hosted on these platforms. If you have issues with website hosting offered by any Third Party Provider, you must contact that Third Party Provider directly.
3. Company Material and Client Material. Any and all text, artwork, photos, audio, promotional materials, sounds, digital files, graphics, advertisements, websites, videos and other content created or developed for the benefit of Client hereunder, including the end product of any creative services provided under this Agreement, such as any Custom Website Design, logo design, video production, photograph, and end product of any Content Services, (collectively, the “Company Material”) shall be the property of Company, subject to Client’s ownership of any and all text, artwork, photos, audio, promotional materials, sounds, digital files, graphics, advertisements, websites, videos and other content, including any claims, statements or representations with regard to any identified product(s) or service(s) and Client’s trade names, trademarks, logos, marks and other identifiers, as may be supplied by Client to Company or its Third Party Providers for use in connection with this Agreement (collectively, the “Client Material”). As between Company and Client, copyright in all Company Material shall be owned by Company. Client may not modify, alter or republish any Company Material without Company’s prior permission, which may be withdrawn at any time in Company’s sole discretion. Neither Company nor any Third Party Provider has any obligation to return any Client Material to Client. Company and its Third Party Providers reserve the right to reject any Client Material for any reason or for no reason, in their sole discretion. Client is responsible and liable for all use of the Services and for all content appearing in advertisements and/or in respect of the Services, whether prepared by Client, Company or any Third Party Provider. Neither Company nor any Third Party Provider is responsible for reviewing any such content for accuracy or quality. Without limiting the generality of the foregoing, Client is solely responsible for the review and approval of all Company Material and must notify Company promptly of any errors or concerns. Upon receiving notice of any errors or concerns, Company’s sole responsibility shall be to remove or amend the Company Material containing such errors or giving rise to such concerns as soon as practicable. All Company Material will be deemed to be approved by Client, unless Client provides notice to us otherwise.
4. Representations, Warranties, Covenants.
a. Client represents, warrants and covenants that: (i) all Client Material will (a) comply with all Applicable Laws, (b) not infringe, violate or misappropriate any third party rights (including intellectual property rights, personality rights, rights of privacy, or any applicable terms, conditions, guidelines or policies of social media sites or other third party websites, platforms or properties on which such Content may appear), (c) not contain any explicit language, nudity or other pornographic or obscene content, (d) not contain any viruses, Trojan Horses, worms, time-bombs, or other similar harmful or deleterious programming routines, (e) be complete and accurate in all material respects, and (f) not contain any defamatory, libelous, or slanderous material and will not violate any individual rights, including intellectual property rights and rights of privacy, publicity or personality of any person or any Applicable Laws; (ii) Client has obtained all necessary clearances for the Client Material, including from Advertising Standards Canada or any other approved clearance agency; and (iii) Client has all necessary rights, powers and authority (including any necessary approval, consent, authorization, release, permission, clearance or licence of any third party) as required to grant Company and any Third Party Providers the rights and licences set forth in this Agreement and to enable Company and any Third Party Providers to provide the Services to Client hereunder.
b. By signing (whether electronically or otherwise) a Service Agreement and/or purchasing any Services from Company, you personally represent and warrant to Company that: (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms.
5. Acceptable Use. Client agrees that it will not, either by itself or by authorizing or encouraging others to do so: (a) use or promote the Services, or provide any Client Materials, in association with any material or content which is illegal, unlawful or infringing under any Applicable Laws (including material or content which infringes a third party copyright (i.e. illegal streaming website)), pornographic, obscene, defamatory, libelous, actionable against the parties due to breach of confidentiality, lacking in necessary authorizations, approvals, consents or licences, or which promotes any of the following: (i) illicit drugs and drug paraphernalia, (ii) gambling, (iii) weapons or ammunitions, (iv) violence or abuse, (v) indecent conduct, (vi) inciting racial hatred, or (vii) discrimination (racially, ethnically or otherwise); (b) disparage or devalue Company or any of its Third Party Providers; (c) take any action that might impede Company’s or any Third Party Provider’s provision of the Services; or (d) use or permit the Services to be used in violation of any Applicable Laws, including to store or transmit any information, data, files, content, or links to content that violate any Applicable Laws. Without limiting the generality of the foregoing, Client shall not use, or authorize or encourage the use of, any of the Services for purposes of or in relation to any pirated software, copyrighted or infringing data or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising, including content or sites that may infer or link to sexual content, are prohibited on our servers. Spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited. Client shall not choose keywords for SEO optimization or otherwise that violate any third party trademarks or other intellectual property rights.
6. Client Obligations. In addition to making all required payments and complying with the terms of this Agreement, Client shall (a) cooperate with Company and the Third Party Providers in all matters relating to the Services and provide access to Client’s advertising accounts, including Client’s Google Adwords and Analytics accounts, as well as Client’s social media accounts, as reasonably necessary for the Services; (b) respond promptly to questions and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Company and any Third Party Providers to perform the Services in accordance with the requirements of the Service Agreement; and (c) provide such materials and/or information as Company and any Third Party Providers may reasonably request in connection with the Services, including any Client Material. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. Client acknowledges and agrees that the development by Company or its Third Party Providers of any Company Material in connection with the Services, including website development and video production services, is a fluid process, dependent on several factors, including Client response time on questions, Client response time for delivering Client Material, Client requests for revisions, and in certain instances, Client response time on approvals. As a result, Company cannot guarantee that any Company Material, including any website, will “go live” or be completed by any set timeline. We will, however, strive to minimize our response times to Client wherever possible.
7. Payment. Once you have executed your Service Agreement, you will be responsible for payment in full of all associated fees and applicable taxes thereon. All fees are due in Canadian dollars. Unless otherwise stated in these Terms or in the Service Agreement, Client will pay all fees due under the Service Agreement, monthly, in advance. Fees for one-time Services will be due in full on the effective date of the Service Agreement (“Effective Date”), or as otherwise provided by your Service Agreement. For recurring fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date in each month is the 25th. If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring Services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date, unless you have cancelled the Services or this Agreement has otherwise been terminated. Where applicable, Company will invoice and bill the Client for digital impressions or “clicks” based solely on Company’s or its Third Party Providers’ ad serving statistics. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your Service Agreement. You acknowledge that Company may increase its rates at any time; provided that you may terminate your Service Agreement at any time, without the payment of an Early Cancellation Fee, on notice (email is sufficient) within 15 days after any higher rates are made effective under your Service Agreement. You will be required to agree to all applicable payment authorization forms which authorize recurring billing in accordance with your Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.
a. Term. The term of your Service Agreement shall begin on the Effective Date and will remain in effect until terminated in accordance with these Terms. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such period. Unless otherwise stated in the Service Agreement, all Websites 360 Site Only plans have a twelve (12) month Initial Term and all other plans have a six (6) month Initial Term. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Service Agreement will be automatically renewed for successive one-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
b. Cancellation of Services by Client. Client may cancel the Services by providing no less than 30 days’ written notice of cancellation via mail or email addressed to Client’s Marketing Executive or Project Manager, as applicable. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, Services will continue through the end of the next applicable Renewal Term and will then be cancelled. Upon cancellation of all Services by Client, subject to Section 8d, below, this Agreement shall be deemed to be terminated.
c. Early Cancellation by Client. If you wish to cancel the Services without completing the Initial Term, you may do so only upon written notice of cancellation via mail or email addressed to your Marketing Executive or Project Manager, as applicable, and payment to Company of an early cancellation fee (“Early Cancellation Fee”). The amount of your Early Cancellation Fee is set out in your Service Agreement or, if your Service Agreement does not set out an Early Cancellation Fee, the Early Cancellation Fee will be equal to your remaining monthly payments under the Initial Term. The Early Cancellation Fee is payable in addition to your monthly payments and may not be paid with credits on file or any prior payment. The Early Cancellation Fee must be provided within five (5) business days from our receipt of your written notice of early cancellation. No early cancellation of a Service Agreement will take effect until the Early Cancellation Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Early Cancellation Fee, as applicable. Upon execution of this Agreement, Company will be investing considerable work into your business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup, and opportunity costs that Company bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Company for early cancellation of the Services.
d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke any cancellation of Services request after you have made the request, in which case the Service Agreement will be reinstated, and all applicable Services will be reinstated upon payment in full of all amounts owed. If a cancellation fee has already been paid, it shall be applied to any future amounts owed.
e. Termination by Company for Breach or Insolvency. Company may terminate this Agreement at any time: (a) if Client breaches the terms of this Agreement and fails to cure such breach within three (3) business days of receiving notice thereof (email notice shall be sufficient); or (b) if Client becomes the subject of any bankruptcy or insolvency proceeding; or (c) if Company, acting reasonably, believes that Client is unable to meet its financial obligations as they become due.
f. Termination by Company for Convenience. We may terminate this Agreement for convenience at any time for any reason or for no reason, and in our sole discretion, by providing written notice of termination to you (email notice shall be sufficient). In such case, termination will take effect at the end of the then current billing period and we will reimburse you for any unused Credits and funds within 45 business days from the effective date of termination.
g. Pause or Downgrade of Service. During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in our sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade during the Initial Term will be effective without a signed written confirmation from both Company and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. Except in the case of a temporary downgrade accompanied by a signed agreement executed by each of Company and Client: (i) after the Initial Term, a downgrade that fully eliminates the recurring portion of certain Services (e.g. NLA Credits, Ad Credits, Social Media Management, Reputations Management) shall be deemed a cancellation of such Services and will terminate all Company obligations related to those Services at the end of the then current billing cycle; and (ii) Client acknowledges and agrees that any downgrade that eliminates the Base Fee (e.g. a downgrade to hosting services only) will terminate all Company obligations related to those removed Services. Client may upgrade or reinstate Services at any time with a written or oral request.
h. No Refunds and Unused Credits. Unless Company terminates this Agreement pursuant to Section 8f, above, no refunds will be provided for any amounts already paid to Company under this Agreement. If Company terminates this Agreement pursuant to Section 8e, above, then Company shall be entitled to recover as liquidated damages all out-of-pocket costs and expenses incurred by Company up to such effective date of termination, including any non-cancellable costs, as well as all amounts due and to become due under this Agreement for the remainder of the then-current term. Upon termination of this Agreement by you for any reason, any and all unused funds, credits or creative hours will be forfeited. If you are a Marketing Customer and downgrade to hosting only services or any other recurring services that do not include the Base Fee, any and all unused funds credits or creative hours remaining in your account at the time of the downgrade will be forfeited. The preceding sentence does not apply to temporary downgrades with a signed agreement.
i. Collection of Amounts Owed. You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by Company and its Third Party Providers in connection with Company’s enforcement of its right to payment under the Service Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (18% per annum) or the highest rate permitted by law, if less.
j. Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in Company’s favour, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Company for the additional costs incurred in defending your payment dispute.
9. Intellectual Property Rights and Licences.
a. Client hereby grants to ETOILE MARKETING SOLUTIONS, INC., its parent, affiliated, and related companies, and any Third Party Provider, an unlimited, royalty free, worldwide, perpetual, irrevocable, transferable, sublicensable, non-exclusive right and licence to pull, host, post, run, cache, store, copy, tag, index, encode, use, reproduce, modify, alter, edit, abridge, revise, condense, summarize, adapt (including the right to publish in a searchable format that may be accessed by internet users, or adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, compile, print, publish, translate, broadcast, transmit, create derivative works from, distribute, perform, display, perform, publicize, retain, backup, archive, and otherwise exploit the Client Material, in whole or in part, in all forms of media, technology and platforms now known or later developed, in connection with the performance of any Services hereunder and/or for advertising, publication, promotion, display or other purposes.
b. If Client purchases or otherwise obtains any Social Media Management Services pursuant to the Service Agreement, Client hereby grants to Company and the Third Party Providers an unlimited, royalty free, worldwide, perpetual, irrevocable, transferable, sublicensable, non-exclusive right and licence to register or establish accounts and publish campaigns, posts, and advertising with, in and on the third party websites and applications used by Company and the Third Party Providers in connection with these Services, including Facebook, Twitter and Instagram.
c. Client acknowledges and agrees that Company and the Third Party Providers may collect data and other information relating to Client’s use of or interaction with any of the Platforms or Services. As between Client and Company, all such data and information produced or generated as a result of Client’s use of or interaction with any of the Platforms or Services shall be owned by Company.
d. Company hereby grants to Client, during the Term for which Client has paid the applicable fees under the Service Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and licence to use and access the Services in accordance with this Agreement. For greater certainty, this licence is granted solely for the purpose of Client’s access and use of those Services set forth in the Service Agreement.
e. All trademarks used in this Agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein.
f. Upon execution of a Service Agreement that includes access to any of the Platforms, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive limited licence to access the Platforms set out in your Service Agreement. You acknowledge and agree that you do not have, nor will you claim, any right, title or interest in the Platforms, or any software, data, applications, methods of doing business, or any other content provided by Company, whether expressly, by implication, estoppel, or otherwise. As between Client and Company, all right, title, and interest in and to the Platforms and Services are and will remain with Company. You may only access the Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge and agree that you shall not share your password or otherwise permit any other person to access or use the Platforms or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of any Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the any Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Platforms, Services, or Platform systems, in whole or in part; (d) bypass or breach any security device or protection used by the Platforms or Services, or access or use the Platforms or Services other than by an authorized user through the use of his or her own then valid access credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Company’s or any Third Party Provider’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner, in whole or in part, the Platforms, the Services, Company’s or any Third Party Provider’s systems or their respective provision of services to any third party; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other Company or Third Party Provider materials, including any copy thereof; (h) access or use the Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Company or any third party or in a way that violates any Applicable Laws; (i) access or use the Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Company’s or any Third Party Provider’s detriment or commercial disadvantage. In addition to the other remedies Company may have, Company may terminate the foregoing licence and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this licence.
10. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE ARE PROVIDING ALL PRODUCTS AND SERVICES, INCLUDING ANY PLATFORMS, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND AND WE MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES, INCLUDING THE PLATFORMS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER COMPANY NOR ANY THIRD PARTY PROVIDER MAKES ANY REPRESENTATION OR WARRANTY ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF ANY OF THE PLATFORMS OR SERVICES. THE PLATFORMS AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTY OR GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF ANY PLATFORMS OR SERVICES ARE INTERRUPTED OR DELAYED, COMPANY’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH PLATFORM OR SERVICES AS SOON AS PRACTICAL. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OR GUARANTEE WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE, INCLUDING ANY PLATFORM.
11. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR THE SERVICE AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OR OF ANY ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO COMPANY IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN ANY CLIENT MATERIAL OR COMPANY MATERIAL, INCLUDING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA, OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN ANY PLATFORM OR WITHIN CLIENT’S PLATFORM ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THE SERVICES. YOU UNDERSTAND AND AGREE THAT, ABSENT YOUR AGREEMENT TO THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
12. Indemnification. You agree to indemnify and hold harmless ETOILE MARKETING SOLUTIONS, INC., its parent, affiliates and related companies, and all of their respective officers, directors, employees and agents, from, and at COMPANY’S option, defend THEM against, any and all liability, claims, damages, costs, expenses, and settlements (including reasonable legal and accounting fees and disbursements) arising out of or relating in any way to: (a) Client’s use of any of the Platform or Services, including any illegal or unauthorized use thereof; (b) Client’s non-compliance with any Applicable Laws, including any applicable privacy, anti-spam, defamation, misleading advertising, and consumer protection laws; (c) non-compliance with, or breach of, the Agreement, in whole or in part, by Client or by any third party enabled, authorized, or otherwise permitted by Client; (d) any Client Material; and (e) any Company Material. Without limiting the generality of the foregoing, this indemnification extends to any actions alleging or related to infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, breach of applicable privacy or anti-spam laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through any Client website. YOU SHALL COOPERATE WITH US AT YOUR EXPENSE IN THE DEFENCE OF ANY CLAIM. WE RESERVE THE RIGHT TO ASSUME THE DEFENCE AND EXCLUSIVE CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU.
a. Choice of Law: These Terms are exclusively governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any principles of conflicts of law. To the extent there is any dispute between the parties in respect of these Terms, or the Service Agreement, the parties agree to submit to the exclusive jurisdiction of the courts of Ontario in the City of Toronto. Except where prohibited by Applicable Laws, you agree to waive any right you may have to commence or participate in any class action against us related to any claim and, where applicable, you also agree to opt out of any class proceedings against us.
b. Entire Agreement: These Terms, including the documents referenced herein (including the Service Agreement), constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
c. Amendment/No Waiver. We may update and change any part or all of these Terms from time to time. If we update or change these Terms, the updated Terms will be posted at marketing360.ca/terms. Client shall be responsible for periodically reviewing that website for notice of any changes to these Terms. Client’s continued purchase of Services subsequent to any revision to these Terms shall constitute Client’s agreement and acceptance of such revised Terms. Subject to the foregoing, any other amendment to this Agreement must be contained in a writing executed by the parties. The failure by either party to require performance of any provision shall not constitute a waiver nor affect that party’s right to require performance at any time thereafter.
d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with Applicable Laws, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
f. Assignment. Client may not assign this Agreement, in whole or in part, without the prior written consent of Company. Any purported assignment in contravention of this Section shall be null and void.
g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third party website or product does not mean we endorse, support or provide any warranty for the third party site or product, including the performance thereof. If you are using a Woo360 website, certain WooCommerce plugins may be required for certain website functionality. You will be required to create your own WooCommerce account to access these plugins for your website, and you may be required to pay WooCommerce an additional fee for certain plugins.
i. No EU/EEA or CCPA Data Processing. To the extent that we process personal data as part of the Services, you represent, warrant and covenant to Company that no such data is subject to the GDPR or the CCPA.
j. Google Third Party Disclaimer. Company resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s “Working with a Third-Party Disclaimer” located at http://www.google.com/adwords/thirdpartypartners/.
k. Bing Ads Agreement. Company resells Bing Ads as a Bing Ads Elite SMB Partner, if you use our services to market on Bing you agree to be bound by the Bing Ads Agreement (currently accessible at https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement, as may be updated by Bing from time to time).
l. Facebook Advertising Guidelines. Your use of the Services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time).
m. Relationship of the Parties. The parties are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created hereby.
n. Referrals. Company or its Third Party Providers may provide incentives to third parties to introduce potential Clients to the Services. From time to time, Company or its Third Party Providers may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from third party advertisement providers, payment processors, and/or other third parties based on hitting revenue or advertising spend thresholds or referring potential customers to the third party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Company or its Third Party Providers.
o. Survival. The representations, warranties, terms, conditions, indemnities, and liabilities set forth herein shall survive termination or expiry of this Agreement. Notwithstanding anything to the contrary, Client shall remain liable for any amounts due to Company prior to and as of the effective date of termination or expiry.
p. Subcontracting. Company may, without your consent, subcontract to any party the performance of all or any of Company’s obligations under this Agreement, provided that Company remains primarily liable to Client for the performance of those obligations.
q. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.
r. Communication Preferences. You consent to receiving electronic and telephone communications from us relating to your account or the Services. These communications may involve sending emails to your email address provided during registration, posting communications to you in the Platforms, or in the “My Account” page. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy.
s. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any Section.
t. Force Majeure. Neither party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from events beyond the affected party’s reasonable control, including acts of God, flood, fire, or explosion, war, terrorism, invasion, riot, national or regional emergency, or any other similar event; provided that (a) the affected party shall promptly give notice to the other party thereof, stating the period of time the occurrence is expected to continue, (b) the affected party shall resume the performance of its obligations as soon as reasonably practicable; and (c) the foregoing shall not apply in respect of any payment obligations.
u. Notices. All notices required by one party hereunder shall be provided in writing to the other party at the mailing address or email address provided to the other party from time to time in writing.
v. Choice of Language. This Agreement has been drawn up in English at the express request of the parties. Les présentes modalités ont été rédigées en anglais à la demande expresse des parties.