Last Updated: February 13, 2018.
Welcome to Maxogram.
This Maxogram Services Agreement (“Agreement”) is a legal agreement between Maxogram Media Inc. (“Maxogram”, “us”, or “we”) and the entity or person (“you”, “your”, or “user”) registered on the Maxogram Management Console or checkout page to receive certain marketing, analytics, benchmarking, or other business services that may be offered by Maxogram or its affiliates (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services.
If you do not understand any of the terms of this Agreement, please contact us before using the Services.
You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.
|Date of Contract||The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by Maxogram.|
Maxogram Media Inc.
|Cancellation of contract and any applicable penalties||You may terminate this Agreement by closing your Maxogram account at any time by contacting us. We may terminate this Agreement and close your Maxogram account at any time for any reason effective upon providing you notice in accordance with this Agreement. There are no penalties for termination. However, termination does not alter your liability for any payments due on your account or any actions performed while using the Services.|
|Complaint handling procedures||Complaints should be submitted by contacting us.|
This Agreement provides a general description of the Services Maxogram may provide to you, including those allowing you to upload images (a "Maxogram Image") which trigger interactive augmented reality experiences ("a Maxogram") when scanned with the Maxogram mobile application (the "App"). We provide you with a more detailed description of the Services through resources we make available to you on our website.
Before using the Services, you must register with Maxogram and create an account (a "Maxogram Account").
Section A describes the process of registering for and using your Maxogram Account.
Section B describes your use of the Services.
Section C describes the Services you may use to create a Maxogram, view statistical information, manage subscriptions (the "Marketing Services").
Section D describes proper handling, management, and use of data, generated during your use of the Services, including your Customers’ data.
Finally, Section E describes your liability to Maxogram for all losses connected with your Maxogram Account, your agreement to resolve all disputes with Maxogram by arbitration and not in a lawsuit, and other legal terms that apply to you.
a. Registration and Permitted Activities: Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in Canada are eligible to apply for a Maxogram Account to use the Services described in this Agreement. Maxogram and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements.
To register for a Maxogram Account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, address, email, phone number, URL, the nature of your business or activities, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Maxogram Account administrator. Until you have submitted, and we have reviewed and approved all required information, your Maxogram Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason.
If you use Marketing Services, your name (or the name used to identify you), phone number, website and social media URLs, and other information may be displayed when your Customers scan Maxograms. To minimize confusion, these descriptors must be recognizable to your Customers and must accurately describe your business or activities. You may only use Marketing Services to facilitate Communication (as defined below) with your Customers. You may not use Marketing Services for any purposes prohibited by this Agreement.
b. Business Representative: You and your Representative individually affirm to Maxogram that your Representative is authorized to provide the information described in this Section A.2 on your behalf and to bind you to this Agreement. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Maxogram, neither you nor your Representative may register or attempt to register for a Maxogram Account on behalf of a user Maxogram previously terminated from use of the Services.
If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of any amounts owed under this Agreement.
The following special requirements apply to you if you are not at least 18 years old. If you are a legal entity owned, directly or indirectly, by an individual who is not at least 18 years old, your Representative must either obtain the consent of your board or of an authorized officer; and if you are an individual or sole proprietor, and if you are not at least 18 years old, your Representative must be your parent or legal guardian. Any such approving board, authorized officer, parent, or legal guardian is responsible to Maxogram and is legally bound to this Agreement as if it had agreed to the terms of this Agreement itself.
c. Validation and Underwriting: At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licences, or other information related to your business, its beneficial owners or principals. If you use Marketing Services, we may also request that you provide copies of financial statements or records pertaining to your compliance with this Agreement, or require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Maxogram Account.
You authorize us to retrieve information about you from our service providers and other third parties and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, and other data about you or your Representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Maxogram Account. Maxogram may periodically update this information as part of our underwriting criteria and risk analysis procedures.
d. Changes to Your Business, Keeping your Maxogram Account Current: You agree to keep the information in your Maxogram Account current. You must promptly update your Maxogram Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your Maxogram Account or terminate this Agreement if you fail to keep this information current.
You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, bankruptcy, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, or levy against 25% or more of your total assets.
You will include us on the list and matrix of creditors as filed with any bankruptcy, commercial or civil court in connection with any Bankruptcy Proceeding, whether or not a claim may exist at the time of filing. Failure to do so will be cause for immediate termination of this Agreement and shall allow the pursuit of any other action available to us under applicable Network Rules or law. You agree that this Agreement is a contract for the advance of credit to you within the meaning of Section 11.01(b) of the Companies’ Creditors Arrangement Act (Canada) and within the meaning of Section 65.1(4)(b) of the Bankruptcy and Insolvency Act (Canada) and cannot be assigned by you in the event of a Bankruptcy Proceeding relating to you. You hereby acknowledge that, but for the agreement in the immediately preceding sentence, we would not have entered into this Agreement.
You may only use the Services for legitimate interactions with your Customers. You know your Customers better than we do, and you are responsible for your relationship with them. Maxogram is not responsible for the products or services you publicize or sell using the Services; or if you accept donations, for your communication to your Customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your Customers.
Maxogram will provide the Services to you at the rates and for the fees (“Fees”) described in the Fee Schedule, linked here. The Fees include charges for Maxogram subscriptions and for other events connected with your Maxogram Account (such as purchasing more Maxograms).
We reserve the right to revise our Fees at any time. For greater certainty, notification is not required for fee changes made in accordance with pre-determined fee schedules. We may charge additional Fees for cross-border transactions or foreign exchanges.
You are also obligated to pay all taxes, fees and other charges (“Taxes”) imposed by any governmental authority, including without limitation any value added tax, goods and services tax, provincial sales tax and/or harmonized sales tax on the Services provided under this Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other evidence of tax exemption that is satisfactory to us.
We will provide you with support to resolve general issues relating to your Maxogram Account and your use of the Services. This support includes resources and documentation that we make available to you through the current versions of Maxogram’s support pages, documentation, and other pages on our website (collectively, “Documentation”). The most efficient way to get answers to your questions is to review our Documentation. If you still have questions after reviewing the Documentation, please contact us.
You are solely responsible for providing support to Customers regarding product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. We are not responsible for providing support for the Services to your Customers unless we agree to do so in a separate agreement with you or one of your Customers.
a. Compliance with Applicable Laws: You must use the Services in a lawful manner, and must obey all laws, rules, regulations and codes of conduct (“Laws”) applicable to your use of the Services. As applicable, this may include compliance with domestic and international Laws related to notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant.
b. Prohibited Businesses and Activities: You may not use the Services for your benefit or the benefit of another, for any activities Maxogram has identified as a prohibited business or activity (collectively, “Prohibited Activities”).
Please review the list of Prohibited Activities thoroughly before registering for and opening a Maxogram Account. If you are uncertain whether a category of business or activity is prohibited or have questions about how these restrictions apply to you, please contact us. We may add to or update the Prohibited Activities List at any time.
c. Other Restricted Activities: You may not use the Services to facilitate illegal activities. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public Maxogram systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or our website except as expressly permitted by applicable Laws; (iii) transfer any rights granted to you under this Agreement; (iv) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (v) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws; (vi) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (vii) impose an unreasonable or disproportionately large load on the Service.
We may refuse, condition, or suspend any activities that we believe may violate this Agreement or other agreements you may have with Maxogram; or that expose you, Maxogram, or others to risks unacceptable to Maxogram. If we suspect or know that you are using or have used the Services for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Maxogram Account, your Customers, and your use of the Services.
a. Consent to Electronic Disclosures and Notices: By registering for a Maxogram Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Maxogram (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.
b. Methods of Delivery: You agree that Maxogram can provide Notices regarding the Services to you through our website or through the Console, or by mailing Notices to the email or physical addresses identified in your Maxogram Account. Notices may include notifications about your Maxogram Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.
c. SMS and Text Messages: You authorize us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your Maxogram Account (such as through two-step verification), and to provide you with other critical information about your Maxogram Account. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security procedures and controls intended to reduce the risk of fraud to you and your Customers (“Security Controls”) on your Maxogram Account and may increase the risk of loss to your business or yourself.
d. Requirements for Delivery: It should come as no surprise to you that you will need a computer or mobile device, Internet connectivity, and an updated browser to access your Console and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.
e. Withdrawing Consent: Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Maxogram Account.
a. Term and Termination: This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Maxogram. You may terminate this Agreement by closing your Maxogram Account at any time by contacting us and ceasing to use the Service. If you use the Services again or register for another Maxogram Account, you are consenting to this Agreement. We may terminate this Agreement or close your Maxogram Account at any time for any reason by providing you Notice. We may suspend your Maxogram Account and your ability to access your Maxogram Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud risk, or any other risks associated with your Maxogram Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; or (iii) any Law or Regulatory Body requires us to do so.
b. Effects of Termination: Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) stop using the Services immediately and (ii) remove all Maxogram logos and other copyrighted Maxogram material from your website and other digital or print marketing materials. Your continued or renewed use of the Services after termination serves to renew your consent to the terms of this Agreement.
In addition, upon termination you understand and agree that (i) all licences granted to you by Maxogram under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers within 10 days of termination; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.
Maxogram has developed and provides access to the Console that may be used to access the Services. You may use the Console solely as described in the Documentation to create and manage Maxograms or use the Services with the App. You may manage your Maxogram Account, connect with other service providers, and enable additional features through the Console.
You may use the Console to utilize the Services on the App. You may not use the Console for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the Console and Documentation from time to time, and may add or remove functionality. We will provide you Notice if we change, deprecate, or remove functionality from the Console so that you may continue using the Services with minimal interruption.
Maxogram or its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Console, Services, and Documentation (collectively, “Maxogram IP”) or any copies thereof. Maxogram IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and Maxogram reserves all rights in Maxogram IP not expressly granted to you in this Agreement.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, the Console, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Maxogram has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
Maxogram grants you a nonexclusive and nontransferable licence to electronically access and use the Maxogram IP only in the manner described in this Agreement. Maxogram does not sell to you, and you do not have the right to sublicence the Maxogram IP. We may make updates to the Maxogram IP or new Services available to you automatically as electronically published by Maxogram, but we may require action on your part before you may use the Maxogram IP or new Services (including activation through the Console, or acceptance of new or additional terms). Maxogram may revoke or terminate this licence at any time if you use Maxogram IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of Maxogram IP on your behalf or on behalf of others; (ii) sublicence any rights in Maxogram IP granted by us; (iii) import or export any Maxogram IP to a person or country in violation of any country’s export control Laws; (iv) use Maxogram IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
We may make certain Maxogram logos or marks (“Maxogram Marks”) available for use by you and other users to allow you to identify Maxograms or Maxogram as a service provider. To use Maxogram Marks, you must first agree to the Maxogram Marks Usage Agreement. Maxogram may limit or revoke your ability to use Maxogram Marks at any time. You may never use any Maxogram Marks or Maxogram IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as a Maxogram user. If you do not want us to identify you as a user, please contact us. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and Maxogram. Upon termination of your Maxogram Account, both you and Maxogram will remove any public references to our relationship from our respective websites.
You may use the Services to upload or publish text, images, and other content (collectively, “Content”) to your Maxogram Account, the App, and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licences to upload or publish any such Content using the Services. You agree to fully reimburse Maxogram for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
Maxogram provides you marketing services through our online web application, the Maxogram Management Console (the "Console") as well as the App. Marketing Services allow you to create new Maxograms and view usage statistics including non-identifying view locations. We may limit or refuse to process new Maxograms for any Prohibited Businesses, or for Maxograms submitted in violation of this agreement. To use the Marketing Services, you must also accept separate agreements with the Social Media or Website Providers as described in Section 5.
The following terms used in this section relate to your use of Marketing Services:
"Action Icon" means an image displayed in the App that when clicked initiates some form of Communication (defined below).
"Consultant" means any third party contracted by Maxogram to provide services.
"Communication" means any communication initiated through the App including text messages, phone calls, emails, and any other redirects to websites or software not owned by Maxogram.
"Legal Team" means any lawyer contracted by Maxogram to provide legal counsel or other services.
"Maxogram Creation" means the process of creating or editing a Maxogram.
"Cancel" means stopping the recurring billing on a Maxogram thus halting the ability for Customers to see it.
"Social Media or Website Providers" means a website, application, or other software which can be linked to from a Maxogram.
When you register for a Maxogram Account, you may be asked for financial information, or information we use to identify you, your Representatives, principals, beneficial owners, and other individuals associated with your Maxogram Account. Throughout the term of this Agreement, we may share information about your Maxogram Account with the Legal Team or other Consultant in order to verify your eligibility to use the Marketing Services, monitor Maxogram Creation and other activity, and conduct risk management and compliance reviews. We will review and may conduct further intermittent reviews of your Maxogram Account information to determine that you are eligible to use the Marketing Services. Maxogram’s use of the information you provide to us under this Agreement is described in more detail in Section D.
Except where Maxogram and a Customer have otherwise agreed, you maintain the direct relationship with your Customers and are responsible for: (i) acquiring appropriate consent to any Communication initiated through the Marketing Services on their behalf; (ii) providing confirmations and responses to Customers for any Communication; (iii) verifying Customers’ identities; and (iv) determining a Customer’s eligibility and authority to complete any transactions or compete in any contests you may be offering. Maxogram is not responsible for or liable to you for Communications that are later the subject of litigation, dispute, are submitted without authorization or in error, or violate any Laws.
Please keep in mind that you are liable for all losses you incur through any Communications. Maxogram does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate inquirer and purchases something from you but is a fraudster, you will be responsible for any resulting costs, including litigation. Even if we work with you to assist you or law enforcement in recovering lost funds, Maxogram is not liable to you, or responsible for your financial losses or any other consequences of such fraud.
It is very important to us that your Customers understand the purpose and conditions of Communications you initiate through us. With that in mind, when using the Marketing Services you agree to: (i) accurately communicate, and not misrepresent, the nature of your business or services; (ii) provide follow up communication or confirmations that accurately respond to Customers; (iii) provide Customers a meaningful way to contact you in the event that the product or service is not provided as described; (iv) not use Services to sell products or services in a manner that is unfair or deceptive, exposes Customers to unreasonable risks, or does not disclose material terms of a purchase in advance; and (v) inform Customers that Maxogram and its global affiliates initiate Communications for you.
Your use of the Marketing Services is subject to additional terms that apply between you and one or more of Maxogram, a Maxogram affiliate, or a Social Media or Website Provider (“Third Party Services Terms”). By using the Marketing Services, you agree to the Third Party Services Terms.
We may add or remove available Social Media or Website Providers at any time. The Social Media or Website Provider Terms may also be amended from time to time. Your continuing use of the Marketing Services constitutes your consent and agreement to such additions, removals and amendments.
The Console contains details of current Maxograms and other activity on your Maxogram Account. Except as required by Law, you are solely responsible for reconciling the information in the Dashboard generated by your use of Marketing Services with your records of Customer interactions, and for identifying any errors. You agree to review your Maxogram Account and fix any errors.
If you Cancel all Maxograms in your Maxogram Account for a period of 365 days we will delete your account and all resources and data contained within. Maxogram is not liable for any losses incurred by you resulting from the deletion of your Maxogram Account and Maxogram resources.
Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be yours too. This section describes our respective obligations when handling and storing information connected with the Services. The following terms used in this section relate to data provided to Maxogram by you or your Customers, or received or accessed by you through your use of the Services:
“Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
“User Data” means information that describes your business and its operations, your products or services, and communications by Customers.
“Maxogram Data” means details of any transactions over Maxogram infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information created by or originating from Maxogram or the Services.
The term “Data” used without a modifier means all Personal Data, User Data, and Maxogram Data.
Maxogram processes, analyses, and manages Data to: (a) provide Services to you, other Maxogram users, and Customers; (b) mitigate fraud, loss, or other harm to users, Customers and Maxogram; and (c) analyze, develop and improve our products, systems, and tools. Maxogram provides Data to third-party service providers, including Social Media or Website Providers and their affiliates, as well as Maxogram’s global affiliates, to allow us to provide Services to you and other users. We may provide Personal Data or User Data to unaffiliated parties for marketing their products to you. You understand and consent to Maxogram’s use of Data for the purposes and in a manner consistent with this Section D.
a. Confidentiality: Maxogram will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us.
You affirm that you are now and will continue to be compliant with all applicable Laws governing privacy and your use of Data that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under applicable Laws to disclose to Maxogram — or allow Maxogram to collect, use, retain, and disclose — any Personal Data that you provide to us or authorize us to collect, including Data that we may collect directly from Customers using cookies or other similar means. As may be required by Law and in connection with this Agreement, you are solely responsible for disclosing to Customers that Maxogram initiates Communications for you and may receive Personal Data from you. Additionally, where required by Law or Network Rules, we may delete or disconnect a Customer’s Personal Data from your Maxogram Account when requested to do so by the Customer.
If we become aware of an unauthorized acquisition, disclosure or loss of Customer Personal Data on our systems, we will notify you consistent with our obligations under applicable Law. We will also notify you and provide you sufficient information regarding the unauthorized acquisition, disclosure or loss to help you mitigate any negative impact on the Customer.
a. Maxogram’s Security: Maxogram is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorized access, accidental loss, modification, or breach, and we will comply with applicable Laws and Network Rules when we handle User and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorized parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to Maxogram with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement the Security Controls and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Maxogram Account, to maintain the integrity and security of the Services or Data, or to prevent harm to you, us, Customers, or others. You waive any right to make a claim against us for losses you incur that may result from our actions.
b. Your Security: You are solely responsible for the security of any Data on your website, your servers, in your possession, or that you are otherwise authorized to access or handle. You will comply with applicable Laws when handling or maintaining User Data and Personal Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Maxogram Account or terminate this Agreement.
c. Security and Fraud Controls: We may provide or suggest Security Controls to you, but we cannot guarantee that you or Customers will never become victims of fraud. Any Security Controls we provide or suggest may include processes or applications developed by Maxogram, its affiliates, or other companies. You agree to review all the Security Controls we suggest and choose those that are appropriate for your business to protect against unauthorized Communications and, if appropriate for your business, independently implement other security procedures and controls not provided by us. If you disable or fail to properly use Security Controls, you will increase the likelihood of unauthorized Communications, fraud, losses, and other similar occurrences. Keep in mind that you are solely responsible for losses you incur from the use of lost or stolen payment credentials or accounts by fraudsters who engage in fraudulent Communications with you, and your failure to implement Security Controls will only increase the risk of fraud. We may assist you with recovering losses, but you are solely responsible for losses due to lost or stolen credentials or accounts, compromise of your username or password, changes to your Maxogram Account, and any other unauthorized use or modification of your Maxogram Account. Maxogram is not liable or responsible to you and you waive any right to bring a claim against us for any losses that result from the use of lost or stolen credentials or accounts to engage in fraudulent Communications, unless such losses result from Maxogram’s willful or intentional actions. Further, you will fully reimburse us for any losses we incur that result from the use of lost or stolen credentials or accounts.
When using Maxogram Action Icons, you will have the ability to allow your Customers to Communicate with you or other parties. Action Icons may take certain actions on your behalf and access Data available through your Maxogram Account, including some User Data. By using Action Icons, you authorize Maxogram to share Data with any software application, Social Media or Website Provider, or other parties that you connect with your Maxogram Account through the Console. You also understand that at any point you may disallow any such sharing by removing the Action Icon from your Maxogram Account. You waive your right to bring any claims against Maxogram for losses you incur that arise from any actions or use of Data by any software application, Social Media or Website Provider, or other parties connected to your Maxogram Account, and you will fully reimburse us for any losses we incur that result from your actions or use of such Data by any software application, Social Media or Website Provider, or other parties.
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We may provide you with Notice of any changes through the Console, via email, or through other means. Your use of the Services, Console, or Data after we publish any such changes on our website, constitutes your acceptance of the terms of the modified Agreement.
You may not assign this Agreement, any rights or licences granted in this Agreement, or operation of your Maxogram Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee agrees to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. Maxogram may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or App affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities. The auditor will issue a report to us and our Contractors.
Nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Social Media or Website Provider. Each party to this Agreement, and each Social Media or Provider, is an independent contractor. Unless a Social Media or Website Provider expressly agrees, neither you nor we have the ability to bind a Social Media or Website Provider to any contract or obligation, and neither party will represent that you or we have such an ability.
Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees under this Agreement.
You agree to defend Maxogram, our affiliates, and their respective employees, agents, and service providers (each a “Maxogram Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a Maxogram Entity, and you agree to fully reimburse the Maxogram Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any Fees or any other liability we incur that results from your use of Payment Services; (iii) negligent or willful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Customers.
Important Note for Sole Proprietors: If you are using Services as a sole proprietor, please keep in mind that the Law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of Fees and losses based on fraud, or for any other amounts you owe under this Agreement for your failure to use Security Controls, and for all other obligations to us and to your Customers. You risk personal financial loss if you fail to pay any amounts owed. Please take the time to read our Documentation and take any measures appropriate to protect against such losses.
By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Communications for permitted products, services, or donations, and any related information accurately describes the product, service, or donation; (d) you will fulfil all of your obligations to Customers and will resolve all disputes with them; (e) you will comply with all Laws applicable to your business and use of the Services; and (f) you will not use the Service, directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Service.
WE PROVIDE THE SERVICES AND MAXOGRAM IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY MAXOGRAM OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES — WHETHER FROM MAXOGRAM OR ANOTHER MAXOGRAM ENTITY, AND WHETHER OR ORAL OR WRITTEN — CREATES OR IMPLIES ANY WARRANTY FROM A MAXOGRAM ENTITY TO YOU.
YOU AFFIRM THAT NO MAXOGRAM ENTITY CONTROLS THE PRODUCTS, SERVICES, OR COMMUNICATIONS THAT YOUR CUSTOMERS PURCHASE OR INITIATE USING THE MARKETING SERVICES. YOU UNDERSTAND THAT WE CANNOT GUARANTEE AND WE DISCLAIM ANY KNOWLEDGE THAT YOUR CUSTOMERS POSSESS THE AUTHORITY TO, OR WILL COMPLETE ANY TRANSACTION OR COMMUNICATION.
THE MAXOGRAM ENTITIES DISCLAIM ANY KNOWLEDGE OF, AND DO NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT MAXOGRAM WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, CONSOLE, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK — YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT THE MAXOGRAM ENTITIES MAKE NO GUARANTEES TO YOU REGARDING MAXOGRAM LOADING TIMES OR DELIVERY.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.
Under no circumstances will any Maxogram Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Maxogram Entities have been advised of the possibility of such damages. The Maxogram Entities are not liable, and deny responsibility for any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Services, your Maxogram Account, or Data, or your failure to use or implement anti-fraud measures, the Security Controls, or any other data security measure. The Maxogram Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorized access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
You agree to limit any additional liability not disclaimed or denied by the Maxogram Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Maxogram during the three-month period immediately preceding the event that gave rise to your claim for damages.
These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
Maxogram may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. We or any Social Media or Website Provider may deliver or hold any Data as required under such Legal Process, even if you are receiving Data on behalf of other parties. Where permitted by Law, we will make reasonable efforts to provide you Notice of such Legal Process by sending a copy to the email address we have on file for you. Maxogram is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.
a. Binding Arbitration: Any dispute, controversy or claim arising out of or relating to this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, including without limitation the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The number of arbitrators shall be one. The place of the arbitration shall be Vancouver, British Columbia, Canada. The language of the arbitration shall be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
This Agreement shall be governed by the laws of the Province Of British Columbia and the federal laws of Canada applicable in that Province. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Either party may commence arbitration by providing to ICDR Canada and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested (“Arbitration Demand”).
b. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
c. Class Waiver: To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
d. Provision of an Award: Subject to the limitations of liability identified in this Agreement, the appointed arbitrator may award monetary damages and any other remedies allowed by Law. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by any court having jurisdiction over either party or its assets. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
e. Fees: Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrator will award to the prevailing party, if any, the costs and legal fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
f. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, or unless otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
g. Conflict of Rules: In the case of a conflict between the provisions of this Section E.11.g and the rules governing arbitration identified in Section E.11.a, the provisions of this Section E.11.g will prevail. If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Maxogram for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Maxogram, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including but not limited to Sections A.3 (“Your Relationship with Your Customers”), A.6 (“Service Limitations and Prohibited Activities”), A.7 (“Suspicion of Unauthorised or Illegal Use”), A.8 (“Disclosures and Notices; Electronic Signature Consent”), A.9.b (“Effects of Termination”), B.2 (“Ownership of Maxogram IP”), C.6 (“Reconciliation and Error Notification”), C.7 (“Dormant Accounts”), D.3 (“Security and Fraud Controls”), D.4 (“Your Use of Data with Action Icons”), E.4 (“No Agency; Third-Party Services”), E.5 (“Force Majeure”), E.6 (“Your Liability for Third-Party Claims Against Us”), E.7 (“Representations and Warranties”), E.8 (“No Warranties”), E.9 (“Limitation of Liability”), E.10 (“Responding to Legal Process”), E.11 (“Dispute Resolution; Agreement to Arbitrate”), E.12 (“Entire Agreement”), and E.13 (“Survival”); and any related terms in the Agreement.
The parties hereby acknowledge that they have required this Agreement and all related documents to be drawn up in the English language. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous les documents qui s’y rattachent soient rédigés en langue anglaise.