Terms and Conditions of Service

This License Agreement (“Agreement”) sets out the legal agreement between you, your directors, employees, contractors, agents and assigns, collectively the “Client” and xSellco Limited, an Irish incorporated entity with its registered offices as 15-17 Percy Place, Dublin 4, Ireland (the “Company”) for the use of the Company’s Service.

By selecting the "I accept", “Start Trial” or “Try It Free” option the Client acknowledges that the Client has read, understands, and agrees to be bound by the terms of this Agreement. Notwithstanding the foregoing, Client’s use of the Service shall bind them and any employees, agents or subcontractors who access the service to the terms and conditions of this Agreement.

If Client does not agree with any of the terms or conditions of this Agreement, Client is not authorised to use the Service for any purpose whatsoever and must discontinue any and all use.

Definitions

"Client Data" means the data inputted into the Service by the Client in accordance with its rights under this Agreement including but not limited to, their third party marketplace data and accounts being linked to the Service e.g. Amazon Marketplace Web Service, email account etc.

"Confidential Information" means this Agreement and any and all information (whether oral, electronic or written) obtained by one party from the other pursuant to this Agreement which is expressly marked as confidential or which is manifestly confidential or designated by the disclosing party as confidential or which is confirmed in writing to be confidential within seven days of its disclosure and either party's trade secrets, confidential business information, technical information or know-how, whether or not expressly marked or designated or manifestly confidential or confirmed in writing to be confidential within seven days of its disclosure.

"Intellectual Property or IP Rights" means patents, trademarks, service marks, design rights and database rights (whether capable of registration or otherwise), applications for any of the foregoing, copyright (including copyright in source code, object code, procedures manuals and related documentation), know-how, trade or business names, domain names and other similar rights or obligations, whether capable of registration or not in any country (including but not limited to Ireland).

"Service" means the software service to be provided by the Company to the Client including some or all of its products via the website, https://dashboard.xsellco.com or https://dashboard.replymanager.com, including but not limited to Helpdesk, Repricer, Feedback, and ReplyManager, each a “Product”, and any other service Company agrees to perform for the Client under this Agreement including but not limited to Support Services.

"Standard Support Hours" are outlined on the Company website. The Company reserves the right to amend these hours at any time and without notice. It is the responsibility of the Client to ensure that it is aware of the hours of operation.

"Critical Issue Support Hours" means any hours outside of Standard Support Hours.

"Support Services" the support and maintenance of the Company Software provided by Company. The Support Services contained in the Service is outlined on the relevant Product website page.

Licence

In consideration of the payment of the Fees by the Client, Company agrees to provide a limited, non-exclusive, non-transferrable and royalty-free licence to the Client for the use of the Service and the provision of any other ancillary Services pursuant to this Agreement for the agreed Term.

Term

This Agreement is effective from the Client's registration date and shall remain in full force and effect indefinitely unless and until either party terminates the Agreement.

Client can cancel the service at any time subject to a minimum of fourteen (14) days’ written notice. If written notice to cancel is provided fourteen (14) days in advance of the next billing date, Client’s account will be cancelled at the end of the then relevant period and Client will not be charged Fees again. For the avoidance of doubt, termination by Client must be provided within 14 days of the next billing date. Client will not receive a refund for any Fees already paid to Company. Written notice can be provided via email to accountm@xsellco.com or support@replymanager.com.

Company can, in its sole and absolute discretion, terminate this Agreement at any time.

Description of the Service

The functionality of the Service varies depending on the Product and the subscription level you have chosen for each Product. Please refer to www.xsellco.com or www.replymanager.com for information on the features of your chosen Product. In the event of any significant changes to the functionality of your service or change to the terms and conditions of this Agreement, you will be informed via email or through an in-Product alert to the changes in the specification or the revised terms and conditions. Client’s continued use of the Service shall, in itself, constitute acceptance of any change.

Free Trial Period

Upon confirmation of your registration with the Service, you may be provided with a free trial period to use the Service on a non-exclusive, non-transferable and royalty-free basis in accordance with all the terms of this Agreement with the exception of the payment of Fees during these period (“Free Trial Period”). The Free Trial Period may be extended by Company in its sole and absolute discretion.

In the event that you wish to continue to use the Service after the expiration of the Free Trial Period, you must (prior to the end of the Free Trial Period); (a) have correctly completed all the information relating to payment of the Fees in the payment section of the Service; (b) have provided valid credit card details for payment of the Fees; (c) have chosen a subscription to sign up to for use of the Service; and (d) paid the correct amount owed for activating your subscription to the Service.

Fees & Invoicing

The Service is billed in advance every thirty (30) days. To obtain the then relevant advance payment discounts, Client retains the option to select to pay for six months in advance and such payments will cover one hundred and eighty (180) days while annual payments in advance will cover a period of three hundred and sixty-five (365) days (“Advance Payments”). Where Client selects Advance Payments, Client will continue to be billed on such payment cycles unless amended in the payment section of the Service.

Company will automatically charge your nominated credit card and you hereby authorize Company to deduct such payments in advance with the prevailing rate of the Service at the time of registration (“Fees”). Company reserves the right to amend its pricing structure at any time, however, any change to the amount to be charged to your card on a recurring basis excluding Discounts will be communicated to you in advance. From time to time, Company may offer certain discounts, promotional codes or other offers (“Discounts”). All such Discounts are provided at the sole and absolute discretion of Company and such Discounts may be amended or supplemented at any time and without notice to Client, even where such amendments would change the recurring fee charged to Client’s credit card.

Where you upgrade your Service subscription in a particular period, an additional fee will be charged on a pro-rate basis for the additional services, and thereafter you will be charged the full service fee on a recurring basis. IF YOU DOWNGRADE OR CANCEL YOUR SERVICE, NO REFUNDS ARE ISSUED INCLUDING ANY ADVANCE PAYMENTS.

All our prices are quoted excluding VAT or other sales taxes. If you are located outside of the EU, or you have a valid VAT number which you supply to us, then we will not charge you VAT. If you are not VAT registered and are located within the EU, we will charge you VAT at the current rate in the state of Ireland. It is your legal obligation that the VAT number you supply us is valid.

It is Client’s responsibility to ensure that the registered credit card has sufficient funds to allow the Fees charge to be processed and it is the responsibility of Client to ensure valid and up to date credit card details are provided at all times. Failure to do so may result in a missed payment and any failure to pay the Fees may result in Company suspending Client’s access to the Service. As soon as a payment is missed or there is an amount overdue on Client’s account, Company shall be entitled to suspend or cancel Client access to the Service at any time and without notice.

Referrals

The Service contains a section entitled “Referrals”. This is part of the Company Affiliate Program (“Affiliate Program”). The Affiliate Program is governed by a separate agreement and related terms and conditions (“Affiliate Program Agreement”) that can be found within the Service. Client’s participation within the Affiliate Program does not take effect on the same day as this Agreement. Client’s Affiliate Program participation will only commence on the day on which Client accepts the terms and conditions of the Affiliate Program Agreement.

Termination of this Agreement will automatically terminate Client’s Affiliate Program Agreement if Client has entered into an Affiliate Program Agreement, however, termination of Client’s Affiliate Program Agreement will not constitute a termination of this Agreement including, but not limited to, Client’s obligations and the payment of Fees.

Information we collect

Our use of Client Data which you provide to the Company when you subscribe to our Service is contained in our Privacy Policy. Please also see the hereby agreed data protection provisions as mandated by the EU General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016), please see the Exhibit hereto.   

By using the Service, Client consents to its contact information being used by Company to send updates about this Service including but not limited to changes to the Service description and changes in the terms and conditions.

Client agrees that Company may publicly use Client’s business or trading name and logo to identify you as our customer and that Company is providing a service to Client in promotional materials including but not limited to case studies, event materials, presentations, website, videos, tweets and any other media.

Client Data includes payment information. Company does not store complete payment information, this data is maintained by our payment processing provider Stripe, who is Payment Card Industry (“PCI”) compliant. Company will retain details such as your billing address, email, telephone number and partial credit card details including the expiry date, the last four digits of the card number and the name on the card. Company does not retain full card numbers or CVV codes. This information is retained solely for the purposes of customer service and in no way is this information shared with any third party or used for any other purpose than for customer and technical support.

Client agrees that Company may publicly use Client’s business or trading name and logo to identify you as our customer and that Company is providing a service to Client in promotional materials including but not limited to case studies, event materials, presentations, website, videos, tweets and any other media. You hereby grant to us a license to use the information as authorised by these terms, which you can revoke upon written notice to us. Upon any such revocation, we will cease use of your company’s name, logo and images with the understanding that such may continue to exist on third-party websites that we do not control. We will not be responsible for versions that were printed prior to receiving notice revoking any such consent. Your company is solely responsible for defence and maintenance of its intellectual property.

In use of the Service, Client agrees to grant Company a non-exclusive, transferable, royalty-free, worldwide and fully paid-up license to use the Client Data for the purposes of analysis and development, including IP development (“Company Development”). Any such Company Development shall be fully owned by Company and Client hereby agrees that it shall have no rights or claims whatsoever over Company Development and waives any and all rights and claims, including any moral rights, over the Company Development whether now known or hereafter devised.

Should Client provide any feedback, advice, comment, instruction or any other verbal or written communication directly or indirectly to Company about the Service (“Client Feedback”), Client hereby grants to Company a non-exclusive, transferable, royalty-free, worldwide and fully paid-up license in and to the Client Feedback.

Ownership of Materials

Client acknowledges and agrees that Company and/or its licensors own all Intellectual Property Rights in the Service or which may arise out of the performance of the Service (including any Materials). Except as expressly stated otherwise, this Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service or any related documentation. The Client further acknowledges that all rights, title and interest to the Service are owned by Company and that the Client's rights to use the Service are limited to those expressly set out in this Agreement.

The Client authorises Company to access, store, update, modify and otherwise deal with (as appropriate) any Client Data to enable it to properly perform any Service pursuant to this Agreement.

Except as otherwise expressly provided herein, nothing in this Agreement grants to any party, any right and title or licence to the other party's Intellectual Property rights.

Upon termination of this Agreement, all rights granted under this Agreement, unless otherwise stated, shall automatically terminate and each party agrees to immediately cease using or displaying the Intellectual Property Rights of the other party.

Data Protection

The parties acknowledge that for the purposes of the EU General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016) and any other applicable laws, as may be amended from time to time, the Client is the Data Controller and the Company is the Data Processor as defined in the data protection legislation. For further details about this relationship and the respective obligations of the Company and the Client in relation to data protection, please see the Exhibit hereto.   

Client shall own all rights, title and interest in and to all of the Client Data inputted by Client, or on Client’s behalf (including by Company) for the purpose of using the Service and Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

Company shall, in providing the Service comply with its Privacy Policy relating to the privacy and security of the Client Data. The Privacy Policy is available on the Company website or such other website address as may be notified to you from time to time, as such document may be amended from time to time by Company in its sole discretion.

Both the Company and the Client shall follow its own protection procedures for Client Data in compliance with the EU General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016) and any other applicable laws, as may be amended from time to time.

If Company processes any personal data on your behalf when performing its obligations under this Agreement, the parties agree and acknowledge their intention that Client shall be the Data Controller and Company shall be a Data Processor and in any such case:

(a) Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Client is located in order to carry out the Service and Company’s other obligations under this Agreement;

(b) Client shall ensure that it is entitled to transfer the relevant personal data to Company so Company may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;

(c) Client shall ensure that the relevant third parties have been informed of, and have given their consent to such use, processing, and transfer as required by all applicable data protection legislation; and

(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

In the event of any loss or damage to Client Data within the Service, the Customer’s sole and exclusive remedy shall be for Company to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest backup of such Client Data maintained by Company. Company shall not be responsible for any direct or indirect loss, destruction, alteration or disclosure of Client Data caused by any third party.

Company hosts all Client Data, including personal data, with Amazon Web Services (“AWS”). Details of the security policy of AWS can be found here http://aws.amazon.com/security/ and in no way shall Client hold Company responsible for the quality of service provided by AWS.

Company's Obligations

Company will provide such instruction to enable Client to make use of the Service as Company reasonably considers appropriate. There is no obligation on Company to provide direct setup and any direct setup by Company will be done in its absolute discretion.

Company will take all reasonable steps to ensure that all Client Data under Company's control is kept secure in accordance with good industry practice.

For the purposes of the EU General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016) and any other applicable laws, as may be amended from time to time, where the provision of any part of the Service requires Company to process personal data supplied by the Client as data controller, then Company shall act only on instructions from the Client as data controller and shall only carry out processing on the Client's instructions.

Client's Obligations

Client shall be solely responsible for the configuration of the Service correctly according to guidelines supplied by Company. Client shall also fully comply with all relevant terms and conditions on the third party marketplaces or accounts that Client links or associates with their Company account or Service.

Client will fully comply with all applicable laws and regulations when performing its obligations under this Agreement and obtain all third party consents, licences and rights reasonably required in order to allow Company to perform the Services.

Where the Client's own employees undertake work which impacts upon the performance of the Service, then the Client undertakes to use sufficiently qualified and competent employees to ensure that the Services are not adversely affected or delayed.

Should the Client fail to perform any of its obligations under this Agreement then Company will not be responsible for any delay, cost increase or other consequences arising from such failure, and the Client shall reimburse Company for any costs or expenses incurred by Company due to such failure. Company shall not be responsible for any matter arising from a lack of appropriate IT knowledge or experience on the part of any of the Client's employees.

While Company will demonstrate the tools available to configure VAT and other sales taxes in the software, the client is solely responsible for VAT and other sales tax compliance in the various jurisdictions where the client trades and dispatches its products or services.

If Client does not subscribe to the Service following expiry of the Free Trial Period or if Client’s subscription is terminated for any reason, it is Client’s responsibility to disconnect any marketplace accounts from the Service.

Support Services

Support Services are included in the Service; however, the level of the service shall be dictated by the Service chosen by Client. The prevailing Support Services for Client’s relevant Service will be outlined on the relevant website.

Support Services will be provided during the Standard Support Hours only. Support Services can be in the form of email only or a combination of email, chat and telephone support. Services that do not include telephone or chat support means that Company reserves the right to refuse to handle your support issue or question via telephone or chat and you may be asked to submit the question via email. Company reserves the right that where telephone and chat support is not included in the Service, to provide an answer to your support question via telephone or chat rather than via email.

Where critical issues occur, Company will work to resolve these issue during Critical Issue Support Hours. Company reserves the right, in its sole and absolute discretion, to determine what constitutes a critical issue.

Whilst Company will use reasonable endeavours to resolve any problems raised by Client as part of the Support Services, Company does not guarantee that it will successfully resolve such problems (in whole or in part).

The Client will (a) ensure that all reasonable steps are taken to ensure that the Service is operated in a proper manner by the Client's employees; (b) co-operate with Company in performing the Support Services and provide any assistance or information as may reasonably be required by Company, including in relation to the diagnosis of any faults; (c) report faults promptly to Company; and (d) communicate with Company in a reasonable and professional manner and refrain from sending or make vulgar, abusive or harassing statements or comments to any Company employee or representative.

Telephone Support Services may be monitored and or recorded and such recording may be used by Company for training, quality and monitoring services.

Intellectual Property Rights

Client acknowledges that all IP Rights in the Service provided by Company throughout the world belong to Company, that rights in the Service are licensed and not sold to you, and that you have no rights in or to the Service other than the right to access and/or use it in accordance with the terms of this Agreement.

Client acknowledges that it has no right to have access to the Service in source code form or in unlocked coding. The integrity of the Service is protected by technical protection measures (“TPM”) so that the IP Rights, including copyright, in the Service are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.

Indemnity

The Client shall defend, indemnify and hold harmless Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the usage of the Service.

Except as expressly set out in this Agreement or as permitted by any local law, you undertake: (a) not to copy the Service; (b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Service or any part thereof; (c) not to make alterations to, or modifications of, the whole or any part of the Service or any part of it to be combined with, or become incorporated in, any other programs; (d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Service nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Service with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Service with another software program; (ii) is not disclosed or communicated without Company’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is substantially similar to the Service; (e) to supervise and control use of the Products provided by the Service and ensure that the Service is used by your employees and representatives in accordance with the terms of this Agreement; (f) to use the most current version of the Service, including upgrading to any updated or upgraded version or new release provided by Company under the terms of this Agreement immediately on receipt of such version or release; (g) not to provide, or otherwise make available, the Service offered by the Products in any form, in whole or in part to any person other than your employees without prior written consent from Company; (h) not to access all or any part of the Service in order to build a product or service which competes with the Service; and (i) not to attempt to obtain, or assist third parties in obtaining, access to the Service other than as set out in this Agreement.

Client must permit Company and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Service is being used or accessed, and any records kept pursuant to this Agreement, for the purpose of ensuring that you are complying with the terms of this Agreement.

Client shall not access, store, distribute or transmit any viruses, worms, trojans or other material which may prevent, impair or otherwise adversely affect the operation of any software, hardware, equipment, network or telecommunications service, or any material during the course of your use of the Service which: (a) is unlawful, harmful, threatening, defamatory, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property, and Company reserves the right, without liability to you, to disable your access to any material that breaches this condition.

Limitation on Liability

Licensee uses this software and the Service at their own risk. To the fullest extent permitted by law, Company shall not be liable for any direct, indirect, consequential, incidental or special damage or loss of any kind including but not limited to, loss of profits, loss of business, loss of or corruption of data however caused.

Nothing in this Licence shall exclude or in any way limit either party’s liability for death and personal injury resulting from negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.

Subject to the conditions contained herein, Company shall not be liable under or in connection with this Agreement for: (a) loss of income; (b) loss of business profits or contracts; (c) business interruption; (d) loss of the use of money or anticipated savings; (e) loss of information; (f) loss of opportunity, goodwill or reputation; (g) loss of, damage to or corruption of data; or (h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

Company’s maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise (including any liability for the acts or omissions of its employees or agents), shall be limited to a sum equal to the total Fees paid to Company since Client’s first registering for the Service or in the twelve (12) month period immediately preceding the date the cause of action arose.

Company does not warrant that the Service offered herein will not infringe third party intellectual property rights (whether such rights subsist in Ireland or otherwise).

This Agreement sets out the full extent of Company’s obligations and liabilities in respect of the supply of the Service. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Company except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Service offered by Company which might otherwise be implied into, or incorporated in, this Agreement or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

Client acknowledges that Client alone is responsible for the information and data Client holds, as well as that arising from the use of the Service and Client assumes sole responsibility for the security of such information. Client acknowledges that Client alone is responsible for forecasting and calculating any damage Client is liable to suffer in the event of any problem arising in the performance of the Service. As a consequence, Client acknowledges that it is Client’s responsibility to insure its business against all risks which Client regards as appropriate having regard to Client’s own individual circumstances and the terms of this Agreement.

Client acknowledges that all sales made by Client as a result of using the Service, whether directly or indirectly, are made between Client and the buyer directly, and Company accepts no responsibility for and is not a contractual party to same. Client undertakes to abide by all legislative and regulatory provisions, including without limitation, all consumer protection, distance selling regulations and tax and indirect tax compliance.

Client acknowledges and agrees that Company shall have no liability in the event that any third party operator makes changes to their service or their API for which render the Services or part of the Service offered obsolete or prevent access to the third party platform or service. Company shall have no liability for any decisions or actions of the third party platform operator or their consequences, whether they arise with or without warning and irrespective of the consequences.

Company is not liable for: (a) the integrity, completeness, precision, accuracy or updating of information or data provided by the Service which is dependent upon third parties; or (b) information uploaded by Client to the Service or to third party services including but not limited to Client’s Amazon or eBay marketplace.

In the event of breach of, or failure to comply with, the terms of use or access of a third party marketplace platform (including but not limited to Amazon and eBay), or due to general issues of seller performance (including, without limitation, feedback ratings) the marketplace operator may (at their discretion) terminate your access to and use of their marketplace (on either a temporary or permanent basis). Company accepts no liability for any such termination whether caused by use of the Service or otherwise.

Client hereby acknowledges that whilst the Repricer Product regularly updates Client’s information, Company does not provide an absolute guarantee of a real-time connection with the third party marketplace and as a result, there may be a discrepancy in data provided by the Service, for example, between the number of products displayed as sold, and those actually sold. If products are oversold by you and the marketplace receives a request for a refund from the buyer, this may result in your access and use of the marketplace being suspended, on either a permanent or temporary basis. Company accepts no liability in such event. It is your sole responsibility to monitor your sales on all marketplaces on a regular basis.

Additionally, the Repricer Product consists of providing you with a tool to enable you to optimize the price of products you wish to offer for sale on third party market places. This optimization is performed using a pricing strategy you define, and is based on multiple variables, including, without limitation, your hardware used to access the site, third party conversion rates, the positioning you choose in relation to your competitors, the status of your products, the feedback you gain on the marketplaces, your internet connection, platform API and general availability, as well as any minimum prices set by you below which you do not wish to sell.

The Repricer Product will automatically re-price products according to variables inputted into the Service. Client acknowledges that Client alone is responsible for choosing, where applicable, a ‘Minimum (Min)’ and ‘Maximum (Max)’ allowed selling price for each product in Client’s inventory. It is Client’s sole responsibility to monitor and check the suitability of the optimum prices in the Service, and make any necessary adjustments to the setting. If there is an error in the prices offered for Client’s products on a marketplace and Client refuses to sell the applicable products at the advertised price, this may result in the operator of the marketplace closing or suspending your account and preventing any future use of or access to that marketplace. Company does not accept any responsibility or liability for prices at which products are sold by Client on a marketplace whether or not such prices have been set using the Service. For the avoidance of doubt, any statement, suggestion, intonation, advice or counsel provided by Company to Client in relation to pricing is offered solely as a guide and the ultimate pricing decision rests solely with Client.

Company shall not be liable for any fluctuations in exchange rates or currency conversions or for the accuracy, completeness or reliability of any information supplied to it by third parties.

Company shall use commercially reasonable endeavours to make the Service available twenty four (24) hours a day, seven (7) days a week, except for: (a) planned maintenance; or (b) unscheduled maintenance. Company does not accept any liability for any unavailability of the Service due to events outside of its control, including without limitation, network failures.

Force Majeure

Neither party shall be liable to the other by reason of any failure in performance of this Agreement if the failure arises from an event outside of its reasonable control (“Force Majeure”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (a) strikes, lock-outs or other industrial action; (b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (e) impossibility of the use of public or private telecommunications networks; and (f) the acts, decrees, legislation, regulations or restrictions of any government.

Fair Usage Policy

Certain Products allow for unlimited access to certain features, including but not limited to unlimited stockkeeping units (“SKU”), users, sales channels and support. A fair usage policy shall apply to all such unlimited offerings.

In relation to SKUs, the Company provides a standard limit of 600 repricing events per minute per account. This means if you have multiple Amazon or eBay channels associated with your account, these 600 repricing events will be shared across the channels. For most Clients, this limit will be sufficient to provide rapid repricing of products. Once this limit is exceeded, repricing events are queued and prices may not be changed instantly.

Should a Client exceed the number of repricing events allowed per minute, Client will be informed via an in-Product message that your service is running slower than may be expected due to high volumes. Company provides and Client may, subject to the payment of the relevant Fees, avail of Upgrade packs where the limit of pricing events per minute can be increased. Fees applicable to this additional Service are contained within the payment section of the Service.

With regard to users, in line with industry best practice the Company provides for up to 100 users as standard. When a Client exceeds that number, they will be informed via an in-Product message and one of our Client Success team will be in touch should they require additional users.

While the Company provides for unlimited sales channels, exceeding what is considered fair usage may affect service. In this regard the Company estimates that a standard limit of 100 sales channels is sufficient for most Clients. Should a Client exceed this number they will be advised via an in-Product notification and one of our Customer Success team will be in touch to discuss Client requirements.

The Company reserves the right to charge for excessive usage of users and or sales channels.

The Company runs health checks to ensure that the use of our messaging service remains within good industry practice. The Company reserves the right to cancel a Client’s subscription should they be found to engage in the practice of sending spam messages.

Confidentiality

Company reserves the right to inform its employees, temporary workers or subcontractors of any Confidential Information relating to Client or Client’s business if such communication is necessary or desirable for Company’s performance of its obligations arising from this Agreement, it being understood that Company will bring the confidential nature of this aforementioned information to such persons.

General

Client may not transfer or assign any or all of Client’s rights or obligations under this agreement.

If Company fails, at any time during the term of this Agreement, to insist on strict performance of any of Client’s obligations under this Agreement, or if Company fails to exercise any of the rights or remedies to which it is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve Client from compliance with such obligations. A waiver by Company of any default shall not constitute a waiver of any subsequent default. No waiver by Company of any provision of this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

This Agreement and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Service and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

We each acknowledge that, in entering into this Agreement, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Agreement except as expressly stated in this Agreement.

Neither party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Agreement (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in this Agreement.

This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland. Any dispute arising from, or related to, any element of this Agreement shall be subject to the exclusive jurisdiction of the courts of Ireland. You agree that any legal proceedings brought by you against Company arising out of or in connection with this Agreement may only be brought by you in the courts of Ireland unless you reside in another member state of the European Union. If you reside in any other jurisdiction, proceedings may be brought by Company there instead.

 

Exhibit

Data Processing

1. Scope of the Data Processing Arrangements

This exhibit (“Exhibit”) reflects the parties' agreement with regard to the processing of personal data. The personal data to be processed by Company (as data processor) (“Processor”) for Client (as data controller) (“Controller”) concerns the categories of data, the categories of data subjects and the purposes of the data processing services as set out in the Privacy Policy and such other policies that are made available on the Processor’s website. "Personal data" means any information relating to an identified or identifiable natural person as referred to in Regulation (EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation "GDPR"). If other confidential information than personal data is processed for the purpose of fulfilling the Agreement, any reference to "personal data" shall include the other confidential information.

2. Processing of Personal Data

Processor may not process or use the Controller's personal data for any other purpose than provided in the instructions, including the transfer of personal data to any third country or an international organisation, unless Processor is required to do so according to European Union or member state law. Processor must ensure that there is a legal basis for the transfer. If Processor considers an instruction from the Controller to be in violation of the GDPR, or other European Union or member state data protection provisions, Processor shall immediately inform the Controller.

3. Processor's General Obligations

  1. Processor must ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  2. Processor shall implement appropriate technical and organisational measures to prevent that the personal data processed is:
    1. accidentally or unlawfully destroyed, lost or altered;
    2. disclosed or made available without authorisation; or
    3. otherwise processed in violation of applicable laws, including the GDPR.
  3. The appropriate technical and organisational security measures must be determined with due regard for the current state of the art, the cost of their implementation, and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. Processor shall upon request provide the Controller with sufficient information to enable the Controller to ensure that Processor complies with its obligations under this Exhibit, including ensuring that the appropriate technical and organisational security measures have been implemented. Processor must provide information related to the provision of the services to authorities or the Controller's external advisors, including auditors, if this is necessary for the performance of their duties in accordance with European Union or member state law.
  4. Processor must without undue delay after becoming aware of the facts in writing notify the Controller (in accordance with the notice provisions outlined in the Agreement) about:
    1. any request for disclosure of personal data processed under this Exhibit by authorities, unless expressly prohibited under European Union or member state law;
    2. any suspicion or finding of (a) breach of security that results in accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by Processor under the Agreement, or (b) other failure to comply with Processor's obligations under Clause 3.2 and 3.3, or 
    3. any request for access to the personal data received directly from the data subjects or from third parties.
  5. Processor must promptly assist the Controller with the handling of any requests from data subjects under Chapter III of the GDPR.
  6. Processor must assist the Controller with meeting the other obligations that may be incumbent on the Controller according to European Union or member state law where the assistance of Processor is implied, and where the assistance of Processor is necessary for the Controller to comply with its obligations. This includes, but is not limited to, at request to provide the Controller with all necessary information about an incident under Clause 3.8 (ii), and all necessary information for an impact assessment in accordance with the GDPR.

4. Confidentiality

Processor shall keep personal data confidential and shall not disclose the personal data to third parties or take copies of personal data unless strictly necessary for the performance of Processor's obligations towards the Controller according to this Exhibit, and on condition that whoever personal data is disclosed to is familiar with the confidential nature of the data and has accepted to keep the personal data confidential in accordance with this Exhibit. All terms of this Exhibit apply to any of Processor's employees and Processor must ensure that its employees comply with this Exhibit. Processor must limit the access to personal data to employees for whom access to said data is necessary to fulfil Processor's obligations towards the Controller. The obligations of Processor under Clause 5 persist without time limitation and regardless of whether the arrangement of the Parties has been terminated.

5. General

  1. The Processor may engage a sub supplier and will be subject to a written agreement with the sub supplier, in which at least the same data protection obligations as set out in this Exhibit.
  2. This Exhibit may be amended from time to time with due notice being provided.
  3. The terms of this Agreement come into force when the Agreement is executed and remain in force until the Agreement terminated by one of the Parties. Regardless of the term of the Agreement, this Exhibit shall be in force as long as Processor processes the personal data, for which the Controller is data controller.