Terms of Service

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MarketMalinois Inc.
Terms of Service
Last updated: September 12, 2022

These Terms of Service (“Terms“) form a legal agreement between you (“you“, “your“, “You“, or “Your“) and MarketMalinois Inc. (“MarketMalinois“, “we“, “our” or “us“), of 9275 Markham Road, Suite 110, Markham, Ontario L6E 0H9, Canada, in accordance with the federal laws and regulations of Canada. MarketMalinois is a software-as-a-service (“SaaS“) company that offers its users the ability to generate reports about their websites, social media networks, email marketing systems providing insights to optimize their digital marketing initiatives. Usage of any of MarketMalinois’ SaaS offerings, mobile application(“App”), or services (collectively, the “Service”) indicate that you have read and accepted these Terms and our Privacy Policy that govern your access to and use of the Service. If you are from the European Economic Area, accessing these services, including the Service and the App, also indicates the acceptance of our Data Processing Addendum terms. The Privacy Policy and Data Processing Addendum are incorporated into these Terms by reference.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS OR ACCESSING OR USING THE SERVICE, YOU WILL BE BOUND BY THESE TERMS. If you agree to these Terms for a company or other legal entity, you represent that you have the authority to bind such entity. You must also be eighteen (18) years old to agree to these Terms. If you do not have such authority, are not at least eighteen, or do not agree with these Terms, you may not use the Service. These Terms are effective between you and MarketMalinois as of the Effective Date.

MarketMalinois reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these Terms at any time. These Terms can be viewed at any time on our Terms of Service page. If we modify these Terms, we will provide you with notice of the modification. By continuing to access or use the Service after we have given notice of an amendment to the Terms, you agree to be bound by the modified Terms. If the modified Terms are not acceptable, you agree to stop using the Service as soon as possible.

1. Definitions and Terminology

We use capitalization for keywords that have special meanings in these Terms. Some keywords may be defined elsewhere. However, this section sets out the definitions of some of our important keywords.

1.1 Aggregate Data” means data collected and aggregated and/or anonymized by MarketMalinois as part of the use of the Service;

1.2 Confidential Information” means all information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure;

1.3 Fee” or “Fees” means the agreed upon charge(s) applied for the use of our Service relevant to Your applicable level of Service with MarketMalinois;

1.4 Plan” means the level of MarketMalinois’ Service, resources, and support for which you have subscribed and which are set out in the My Plan section under Account/Company/My Plan within the Service;

1.5 Service” means any of MarketMalinois’ SaaS offerings or services, including its mobile application (“App“);

1.6 Support” means any assistance that MarketMalinois offers related to its Service;

1.7 Terms” means these Terms of Service as outlined in this document;

1.8 Usage Data” means information that is collected directly from the User for MarketMalinois that is analyzed and compiled for usage analysis;

1.9 User” means your employee, independent contractor, consultant, or agent that is identified and authorized by you to use the Service; and,

1.10 Your Data” is any data or information you push or pull into the Service to report and provide insights.

2. Rights and Restrictions

2.1 Subject to these Terms, you are granted a non-exclusive, non-transferable (except as permitted by MarketMalinois or Section 9.5) license:
i.
 For the number of Users set out in the applicable Plan to use the Service for your business purposes; and, if applicable,
ii.
 To download, install, access, and use the App on your mobile device. Only one User can access the Service through a specific user ID and password at a time. One User accessing the Service through a specific user ID and password can only have two logins on a computer and two on mobile devices open at a time.

Your use of the Service is subject to additional terms and conditions:
i. set out in the applicable Plan, including the duration of the term of your subscription; and,
ii. required by the distributor from whom you downloaded the App (e.g., Apple App Store, Google Play, etc.) (collectively “App Distributors“).

2.2 You may not:
i. copy, adapt, change, alter, or otherwise modify or create derivative works based on the Service or the App;
ii. decompile, disassemble, or otherwise reverse engineer the Service or the App;
iii. sell, rent, lease, provide, disclose, sublicense, distribute, repackage, transfer, or assign the Service in whole or in part except as permitted by MarketMalinois or Section 9.5;
iv. use the Service to provide hosting, outsourcing, or subscription service; or,
v. use the Service to access, transmit, receive, or store any information you either do not have the right or permission to access, transmit, receive, or store or which is derogatory, defamatory, or obscene, or offensive.

2.3 You will take appropriate steps, both before and while using the Service, to copy or backup and protect Your Data in case it is lost, altered, or destroyed by using the Service. You will be responsible for the replacement, repair, or recreation of Your Data in case of a hardware, software, or Service failure. MarketMalinois will not, under any circumstances, be responsible for any of these types of losses or damages.

2.4 MarketMalinois does not restrict or monitor Your Data. You represent and warrant that you have all the rights and permissions necessary to use Your Data in conjunction with the Service. The Service permits you to share Your Data, and you acknowledge and agree that you are responsible for ensuring that you have all the rights and permissions to share Your Data should you choose to do so using the Service.

2.5 Your Data belongs to you. You grant MarketMalinois a non-exclusive, royalty-free, worldwide sub-licensable right and license to access and use Your Data to provide the Service as contemplated by these Terms, as well as to send you personalized suggestions based on Your Data. MarketMalinois will use Your Data to not only provide the Service as it exists today but also allow MarketMalinois to provide you with innovative features and services that it may develop in the future. MarketMalinois collects this information directly, but it also uses third-party software for this purpose, as further described in its Privacy Policy.

You agree that MarketMalinois:
i. may create aggregate and/or anonymized information from Your Data (“Aggregate Data”);
ii. may offer you personalized suggestions based on your Aggregate Data;
iii. may combine such aggregate and/or anonymized information with that of other Users; and,
iv. has the exclusive ownership of any Aggregate Data and the exclusive right to use Aggregate Data for any purpose as long as MarketMalinois does not use or distribute any Aggregate data in a way that identifies you, your Users, or Your Data.

2.6 MarketMalinois compiles, analyzes, and runs analytics on how Users use the Service, as well the performance of the Service itself. MarketMalinois collects this information directly but also uses third-party software for this purpose, as further described in its Privacy Policy. This usage and performance data is referred to as “Usage Data”. MarketMalinois uses Usage Data to build features and improve the functionality and feature set of the Service.

You agree that MarketMalinois:
i. may offer you personalized suggestions based on your Usage Data;
ii. may create aggregate and/or anonymized information from your Usage Data;
iii. may combine such aggregate and/or anonymized information with that of other Users; and,
iv. has the exclusive ownership of any Usage Data and the exclusive right to use Usage Data for any purpose as long as MarketMalinois does not use or distribute any Usage Data in a way that identifies you, your Users, or Your Data.

2.7 MarketMalinois shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any suggestions, enhancement requests, recommendations, or other feedback provided by you or your Users, relating to the Service.

3. Intellectual Property

Ownership in the Service and the software powering the Service will always remain with MarketMalinois. MarketMalinois will retain all rights, titles, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Service and the software powering the Service. You do not acquire any rights in the Service or the software powering the Service, other than those specified in these Terms. You will not remove any copyright, patent, trademark, design right, trade secret, or other proprietary rights or legends from the Service, unless you are permitted to do so by subscribing to MarketMalinois’ White Label feature, if available as part of your Plan.

4. Confidentiality

4.1 Your Confidential Information shall include Your Data; MarketMalinois’ Confidential Information shall include the Service, including Usage Data and Aggregate Data; and Confidential Information of each party shall include the information about your Plan, as well as business and marketing plans, technology, and technical information, product plans and designs, and business processes disclosed by such party.

However, Confidential Information shall not include any information that:
i. is publicly known or readily ascertainable by the public, through no wrongful act of Receiving Party;
ii. is received from a third party without breaching an obligation owed to the Disclosing Party;
iii. is independently developed by or for the Receiving Party; or,
iv. was in its possession before it was furnished to the Receiving Party by the Disclosing Party.

4.2 The Receiving Party agrees that the Confidential Information of the Disclosing Party:
i. will not be used for any purpose outside the scope of these Terms;
ii. will be treated with the same degree of care as similar information of the Receiving Party is treated within the Receiving Party’s organization (but in no event less than reasonable care);
iii. will not be used for the benefit of a third party; and,
iv. will remain the property of the Disclosing Party. The Receiving Party will limit access to Confidential Information of the Disclosing Party, except as otherwise authorized by the Disclosing Party in writing, to those of its and its Affiliates’ employees, officers, directors, contractors, and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Disclosure of Confidential Information by the Disclosing Party’s employees, officers, directors, contractors, agents or Affiliates is deemed to be the disclosure by the Disclosing Party.

4.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party. The Disclosing Party is not contesting the disclosure; it will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

4.4 The obligations of the Receiving Party outlined in this section will remain in effect for five (5) years following the date of first disclosure. Confidential information identified as a trade secret will be held in confidence indefinitely.

5. Disclaimer of Warranties

MarketMalinois warrants that:
i. it has validly entered into these Terms and has the legal power to do so;
ii. the Service will perform materially in accordance with the online documentation for the Service; and,
iii. the functionality of the Service will not be materially decreased during a subscription term.

6. Limitation of Damages

6.1 IN NO EVENT WILL MARKETMALINOIS (OR ITS EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS) BE LIABLE TO YOU, OR ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF INCOME, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SERVICE, REGARDLESS OF WHETHER MARKETMALINOIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 MARKETMALINOIS’ AGGREGATE LIABILITY TO YOU, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE, WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED, IN THE AGGREGATE, THE FEES PAID TO MARKETMALINOIS BY YOU FOR THE SERVICE IN THE YEAR PRECEDING THE CLAIM.

7. Fees

7.1 You will pay the amount agreed to as part of Your Plan and any amendments made to Your Plan. The fee will be charged automatically to your credit card.

7.2 There will be no refunds or credits for partial service periods or inactivity.

7.3 Should you make amendments to increase your Plan or purchase additional Support or Service offerings, this will result in an immediate charge to you of a prorated amount reflecting the increase in price for the remainder of the term of your Plan. Should you amend your Plan to decrease your Plan or decrease the Support or Service offering that you are receiving, any price decrease will be reflected at the beginning of the next term of your Plan.

8. Term and Termination

8.1 The Terms become effective on the date you accept them or commence using the Service and continue for the subscription term and details as specified in your Plan. Your subscription term shall automatically renew for additional periods equal to the expiring term unless either party gives the other thirty days’ notice of non-renewal before the end of the relevant term.

8.2 Should you cancel your subscription to the Service, this Agreement will terminate at the end of the period you have committed to pay fees, and you agree to cease using the Service. Any fees that You have committed to paying must still be paid.

8.3 MarketMalinois, in its reasonable discretion, has the right to suspend or terminate this Agreement and use the Service by you. MarketMalinois will use all reasonable efforts to contact you directly via email to warn you before suspension or provide you with the effective termination date.

8.4 You are solely responsible for contacting MarketMalinois to cancel the Service or request the deletion of Your account. MarketMalinois will delete Your Data within six months of you canceling your subscription to the Service or, if earlier, upon receipt of a written request to delete Your Data.

9. Governance and Legal

9.1 Governing Law
These Terms will be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Each party agrees that the courts of the Province of Ontario will have jurisdiction. The parties agree that the terms of the United Nations Convention of Contracts for the International Sale of Goods do not apply to these Terms.

9.2 Relationship between Parties
The parties are not agents or legal representatives of each other. The parties to these Terms are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to the franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.

9.3 Survival
The provisions in Articles 3, 5, 6, and 9 and Sections 2.2, 2.3, 2.5, 2.6, 2.7, 4.4, and 8.2 will survive the termination of this Agreement.

9.4 Precedence
Conflicts will be resolved as follows: Data Processing Addendum, Privacy Policy, Terms.

9.5 Assignment
You may not assign these Terms or any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of MarketMalinois (not to be unreasonably withheld). Notwithstanding the foregoing, you may assign these Terms, without MarketMalinois’ consent, to your Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of your assets.

9.6 Waiver
The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of MarketMalinois’ proprietary rights in the Service, no action arising out of these Terms may be brought by either party more than one (1) year after the cause of action has arisen.

9.7 Entire Agreement
These Terms, together with the Data Processing Addendum, the Privacy Policy, and the terms of any Plan, comprise the complete agreement between us regarding the subject matter.

9.8 Severability
If one or more provisions of these Terms are held to be unenforceable under applicable laws, those provisions will be modified to the minimum extent necessary to comply with applicable law and the parties intent.

9.9 App Distributor Terms
You acknowledge that these Terms are concluded between You and MarketMalinois only and not with an App Distributor. App Distributors and their subsidiaries are third-party beneficiaries of these Terms. After you accept these Terms, App Distributors will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third-party beneficiary. App Distributors and their subsidiaries shall have no liability under these Terms.

9.10 Legal Notices; Contacting MarketMalinois
All legal notices to MarketMalinois and questions regarding the Service can be directed to help@marketmalinois.com.