Merchant - Terms of Use

18th January, 2023

 

  • TERMS OF USE
      1. Welcome to Marsello, a service designed to enable participating Merchants to reward customer loyalty, generate targeted promotions, gather customer feedback, and send marketing communications to and for the benefit of Consumers, based on recommendations provided to the Merchant from Marsello (which Marsello generates by analyzing information regarding the Users) (the Service).
      2. These are the terms on which Marsello offers retailers the ability to become a Merchant, which will provide that retailer with use and access to the Service. These terms govern Marsello’s relationship with you (as a Merchant).
      3. If you become a Merchant, you acknowledge that you have read, understood and agree to these Merchant Terms.
      4. These Merchant Terms are subject to change. We will notify you of any such amendments not less than 30 days prior to those amendments becoming effective (as well as by posting those amended Merchant Terms on the Website) and give you the option to cancel your membership with immediate effect by providing notice in writing (subject to the payment of any outstanding fees). If we do not hear from you during this notice period then you will be treated as having accepted the amended Merchant Terms. 
  • MERCHANT MEMBERSHIP
      1. The Services are only accessible via the Marsello Platform and are only available to authorized Merchants.
      2. Any retailer may sign up to become a Merchant by completing the information on the sign-up page of the Marsello Platform. You will be asked to provide information such as your business name, contact name, email address, industry category, details of rewards and promotions you will offer and any logos or material you would like us to use. If you are approved as a Merchant, we reserve the right to refuse to use any proposed logo or marketing material.
      3. We reserve the right to review your application and determine whether we approve you as a Merchant.
      4. You agree to provide complete and accurate information to Marsello in your application to become a Merchant and to update Marsello of any information that may change during your membership.
      5. We may contact you to verify your details if required.
      6. We have sole discretion as to who may be a User and retain the right to terminate any User’s access to the Service and/or Marsello Platform on at least 30 days’ written notice
      7. You agree that if your membership as a Merchant is terminated for any reason, you will cease to have access to the Marsello Platform and you will no longer be entitled to receive Services. In addition, if your membership as a Merchant is terminated:
        • by us for convenience under clause 2(6) then you will be entitled to a pro-rata refund of any prepaid fees for any period still remaining at the end of the termination notice period;  
        • by us under clause 14(1) or by you for convenience under clause 6 of these Merchant Terms then you will forfeit any fees already paid (including for any period still remaining at the end of the termination notice period).  
      8. You agree that you alone are responsible for all actions taken using your Merchant membership account. You agree to keep your login details secure and not to disclose your login details to any unauthorized other parties. You must immediately notify Marsello of any unauthorised use of your login details or any other breach of security.
  • MEMBERSHIP MODELS
      1. Marsello offers Merchants a trial membership (Free Trial) and a paid (Pro Plan), to access the Marsello Platform and the Service. All the features of the Pro plan are available on our Website. You will need to complete an application form and be approved as a Merchant in accordance with clause 2 in order to access the Services under any plan.
      2. You may create an account and access the Marsello Platform through the Free Trial. After the Free Trial period, you will automatically be upgraded to the Pro Plan.
      3. If you choose to access the Marsello Platform through the Pro Plan then you will be billed monthly in advance for the Pro Plan and be liable to pay the applicable fees as set out on the pricing page of our Website in accordance with clause 5 below.
      4. You must abide by these Merchant Terms, to the extent relevant, for the entirety of the period that you access the Marsello Platform and the Service.
  • TRIAL MEMBERSHIP
      1. You may, depending on the product or offer, be able to access the Marsello Platform through the Pro Plan on a trial basis free of charge for a set period for a specified number of users. If you have not already done so, you will need to complete an application form and be approved as a Merchant in accordance with clause 2 in order to access this trial membership.
      2. Your trial membership will provide you with access to the Marsello Platform through the Pro Plan Services for the specified number of users for the set period.
      3. When your trial membership ends, if you have not informed us that you wish to end your membership to the Pro Plan prior to the end of your trial membership period, you will be billed monthly in advance for the Pro Plan and be liable to pay the applicable fees as set out on the pricing page of our Website in accordance with clause 5 below.
      4. You must abide by these Merchant Terms, to the extent relevant, for the trial membership period.
  • PAYMENT AND INVOICING
      1. Payment of the fees incurred in connection with your use of the Services and Marsello Platform will be made in accordance with the information set out on the pricing page of our Website and in advance of using the Service (the fees).
      2. Unless otherwise stated, all fees exclude all sales taxes, goods and services taxes, valued-added taxes, duties, and other similar taxes or impositions.
      3. You must pay the fees on a monthly basis in advance.
      4. Your registered credit card will be charged in advance of the month to which the applicable fees apply. If for any reason we cannot successfully process this payment, we will notify you of such and you will have 14 days following that notification to organize full and final payment of the applicable fees. If you do not fully pay the relevant fees within this timeframe, your access to the features of the Pro Plan will be suspended and your access to the Service will be downgraded to those features available in the Free Plan until you pay the relevant fees]
      5.  Unless otherwise agreed, if your membership has not been cancelled prior to the end of a month, you will be invoiced for a subsequent month.
      6. If you are a Merchant that has entered into an agreement with Lightspeed Commerce Inc. or one of its affiliates (together, Lightspeed) to access and use “Lightspeed Marketing and Loyalty Powered by Marsello” and are invoiced for such access or use by Lightspeed then you are subject to the Lightspeed Marketing & Loyalty powered by Marsello - Additional Terms and the Lightspeed Service Agreement and not by these Merchant Terms.
  • CANCELLING A MERCHANT MEMBERSHIP
      1. These Merchant Terms commence from the date you are approved as a Merchant and will continue in full force and effect until your membership is cancelled.
      2. You may cancel your membership with us at any time by giving us notice in writing. 
      3. Receipt of notice from you that you are cancelling your membership will instigate a 30-day notice period, during which time, you will still be able to receive the Services and use and access the Marsello Platform. You are also still liable to pay the relevant fees until the end of the 30-day notice period.
      4. If you have paid your subscription annually in advance, Marsello will not provide any refund for any period still remaining at the end of the cancellation notice period.
  • USE OF MARSELLO PLATFORM AND SERVICE
      1. Your use of the Marsello Platform and the Service is entirely your own risk
      2. We give no warranty of reliability of the access to and performance of the Marsello Platform or the Service, and no warranty that any information on the Marsello Platform or otherwise provided to you via the Service is complete, accurate or reliable.
      3. We give no warranty that any file downloaded from the Marsello Platform or sent or provided to you by Marsello will be free of viruses or contamination.
      4. The Marsello Platform may contain links to third-party websites and applications that navigate you away from the Website. We have no control and no responsibility for any content contained in any third party website. By using any of these links, you acknowledge that you are doing so at your own risk.
      5. You agree not to intentionally or accidentally damage the Marsello Platform or the Service in any way.
      6. Any damage or unauthorized use of the Marsello Platform or Service by you or your Consumers (including, but not limited to, hacking, use of any robot, spider or any other automated device or process) shall constitute a violation of these Merchant Terms. 
  • ACCEPTABLE USE & CONDUCT OF EMAIL COMMUNICATIONS
      1. As an email service provider, we feel it’s our responsibility to be extra vigilant about preventing spam-related abuse. It’s also in our best interest to keep the system clean because our reputation and deliverability depend on it.
      2. Under the terms of the CAN-SPAM Act, as between Marsello and Merchant, Merchant is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN-SPAM.
      3. You may not send these types of emails through our Service:
        • Any email offering to sell illegal goods or services
        • Any email that violates CAN-SPAM laws
        • Any email containing information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric, data concerning health or data concerning an individual’s sex life or sexual orientation
        • Any other emails that we find, in our sole discretion, hurt our reputation or our deliverability
      4. As part of your agreement to these Merchant Terms, You agree to only send Permission-based emails in connection with your use of the Services. “Permission-based” means that all recipients must have opted-in to receive email communications from Merchant.
      5. If your spam complaint rate is higher than 1 in 1,000 emails, we may pause your account while we work with you to reduce it. It is also your responsibility to monitor and maintain unsubscribe requests for your account that are outside of the functionalities of our Service. You may not use purchased or rented lists (either imported into Marsello or as part of your eCommerce store) with Marsello.
  • USE OF INFORMATION BY MARSELLO
      1. Marsello will aggregate information gathered from all Users in order to recommend promotions and packages to Merchants who may, at their discretion, send communications regarding those specials to certain Consumers.
      2. You agree to permit the provider of any integrated software to provide us with details of all your customers, products and transactions at your location. This will not be limited to Consumers, however, Marsello can only individually identify persons who are Consumers.
      3. Except as set out above and in our Privacy Policy, Marsello will not disclose any commercially sensitive information about Merchants to any third party and in particular, will not disclose any information that identifies you to other Users or that identifies the success or failure of any of your promotions.
      4. Marsello will provide you with an ability to send communications to Consumers. However, some Consumers may elect not to receive such communications and if they do, you agree to not send any such communications to those Consumers and you indemnify us from any loss we suffer as a result of you continuing to send any communications to Consumers who have elected not to receive such notifications.
      5. Once you have become a Merchant, you can email all of your existing customers on your database to advise that you have now become a Merchant, and encourage them to register to receive communications from you (and from Marsello, on your behalf). You acknowledge and agree that Marsello may then, from time to time, email those Consumers that have opted-in to advise them of any outstanding rewards they have accumulated and any special promotions you may be running.  
  • CONSUMER ACKNOWLEDGEMENT
    1. If you are a Consumer you understand that: 
      • Marsello collects information about you on the Merchant’s behalf (as authorized by the relevant Merchant) and uses that information to provide Services to the Merchant; and
      • Marsello is not responsible for how Merchants use, share and protect information held about you.
    2. Please see our Privacy Policy for further information regarding collection, use and disclosure of personal information and other privacy-related matters.
  • MERCHANT ACKNOWLEDGEMENT AND AGREEMENT
    1. If you are a Merchant you acknowledge and agree that:
  • you are responsible for determining the purposes for which Consumer information is to be processed and that we collect and use Consumer information on your behalf;  
  • you are separately obligated to act in accordance with those privacy laws that apply in the country where you and/or your customers are located; and 
  • even if you are not established in the EU, you may also be obligated to act in accordance with the GDPR if you are offering goods and services to consumers who are located in the EU at the time they transact with you. 
  1. In all cases you should:
  • help Consumers understand how both you and Marsello (on your behalf) will collect and use their personal information by posting an up-to-date privacy policy on your storefront that complies with those privacy laws that apply to you, and
  • obtain the informed consent from your Consumers to the collection and use of their personal information by Marsello on your behalf so that Marsello can provide Services to you.
  • LIMITATION OF LIABILITY 
    1. To the fullest extent permitted by applicable law, but subject to clause 12.3, neither party is liable to the other party for any:
      • indirect, special, incidental or consequential, loss, injury or damage; or 
      • loss of profits, revenue or anticipated saving, or loss of data,

suffered or incurred by the first party resulting out of or in connection with these Merchant Terms.

  1. To the fullest extent permitted by law, but subject to clause 12.3, the maximum aggregate liability of each party under or in connection with these Merchant Terms in respect of all claims, proceedings, actions, liabilities, damages, costs, expenses or losses will be limited to the fees paid by you in the 12 months immediately preceding the date on which the claim arose.
  2. Nothing in this clause 12 limits:
    • the Merchant’s obligation to pay the Fees or any other amounts expressly payable under these Merchant Terms when due;
    • the liability of either party for a breach of confidentiality or for any fraudulent or unlawful act or omission; or 
    • the Merchant’s liability under clause 14(2).
  3. These limitations apply irrespective of how liability arises, whether in contract, equity, tort (including negligence), breach of statutory duty.
  4. You are solely responsible for the content of your marketing communications with Consumers and for providing any promotions or rewards to Consumers.
  5. You are solely responsible for resolving any disputes with any Consumer. We make no representation or warranty to or in relation to any Consumer.
  6. We will take all reasonable care to ensure that information that we publish in relation to Merchants and rewards is accurate, but we do not accept any liability relating to that information being incorrect or incomplete.
  • WARRANTIES
      1. Each party represents, warrants and undertakes that:
        • it has full power, capacity and authority to execute, deliver and perform its obligations under these Merchant Terms;
        • it has, and will continue to have, all the necessary consents, permissions, licences and rights to enter into and perform its obligations under these Merchant Terms; and
        • once effective, these Merchant Terms constitute legal, valid and binding obligations and is enforceable in accordance with the terms.
      2. Representations or warranties (statutory, express or implied) that are not expressly referred to in these Merchant Terms are excluded to the fullest extent permitted by law.
      3. In respect of the relationship between the Merchant and Marsello only, for the purposes of section 43 of the Consumer Guarantees Act 1993 (CGA), the parties acknowledge and agree that: (i) the Services being provided to and acquired by the Merchants for use in trade; and (ii) to the maximum extent permitted by law, in respect of all matters covered by these Merchant Terms, the parties are contracting out of the CGA.] 
  • TERMINATION BY MARSELLO FOR BREACH OF MERCHANT TERMS
    1. Marsello may block your access to the Marsello Platform, cancel your membership or take any other action that we believe appropriate by notice in writing with immediate effect if (without limiting any other rights available to Marsello at law) you breach any of these Merchant Terms (or the Privacy Policy) and: (a) you do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; or (b) the breach is incapable of being remedied; or (c) your business ceases to exist, becomes insolvent or becomes subject to any similar event. 
    2. You hereby indemnify Marsello from and against, and shall pay on demand, all costs, loss, damages, expenses or other amounts:
      • payable to a Consumer or any other third party by Marsello; or 
      • otherwise incurred by Marsello in relation to a Consumer or any other third party,

in each case arising out of, or in connection with, any breach of these Merchant Terms (including clause 11) by you or your use or misuse of the Services or Platform (including your provision of marketing communications, promotions, and rewards to Consumers). For the avoidance of doubt, the exclusion set out in clause 12(1) and the limitation set out in clause 12(2) does not apply to your liability under this clause 14(2).

  • ACCESS TO MERCHANT DATA FOLLOWING CANCELLATION / TERMINATION

If your membership is cancelled (by us or by you) in accordance with these Merchant Terms then Marsello will retain all Merchant Data and you will be entitled to extract your Merchant Data, for a period of [30] days following the effective date of cancellation. The Merchant Data will be made available in a format reasonably determined by us. Following this period, Marsello will have the right to delete all Merchant Data at any time from the Marsello Platform. 

  • GENERAL GUIDELINES
      1. Force Majeure:  We are not liable for any delay or failure to perform any of our obligations under these Merchant Terms (including the unavailability or failure of the Marsello Platform or Service) to the extent caused by any event or circumstance beyond our reasonable control. No Waiver: If we do not enforce any right available to us under these Merchant Terms, it does not constitute a waiver of that right or any other right under these Merchant Terms.
      2. Partial Invalidity: If any term under these Merchant Terms is held to be invalid, unenforceable or illegal for any reason, that part of the provision is deemed to be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and it will not affect the remaining terms, which will remain in full force.
      3. Governing Law: These Merchant Terms are governed by the laws of New Zealand. Each party irrevocably submits to the exclusive jurisdiction of the Courts of New Zealand for the purpose of hearing and determining all disputes under or in connection with these Merchant Terms.
      4. Intellectual Property: The Marsello Platform and the Service contain intellectual property rights that are either owned by or licensed to Marsello. This material includes, but is not limited to, the Marsello logo, the design, layout, look, appearance, content, software and graphics.  Marsello (or its licensors) retains all rights (including intellectual property rights), title and interest in the Marsello Platform and the Services.  Your rights are limited to a license from us to use the Marsello Platform and Services in accordance with these Merchant Terms during the period of your Merchant membership. Reproduction or distribution of any Marsello intellectual property is prohibited. 
      5. Entire Agreement: These Merchant Terms, together with the Privacy Policy, represent the entire agreement between you and us. These Merchant Terms supersede any other agreement made, past or future that relates to the subject matter contained in these Merchant Terms.
      6. Assignment: You may not assign or transfer any rights or obligations under these Merchant Terms to any other person without our consent.
      7. Notices: Any notice given under these Merchant Terms by either party to the other must be in writing either by email or the Marsello Platform, and is deemed to have been given on transmission. Notices emailed to Marsello must be sent to hello@marsello.com or to any other email address notified by email to you by us or via the Marsello Platform. Notices to the Merchant will be sent to the email address you provide in your application form or via the Marsello Platform.
      8. Marketing:  You agree that Marsello may refer to you by name, logo, and trademark in Marsello’s marketing materials and the Website. You further acknowledge and agree that Marsello does not certify or endorse, and has no obligation to certify or endorse, any of your products, services, or content.
  • DEFINITIONS
    1. In these Merchant Terms the following expressions shall have the following meanings, unless the context requires otherwise:
      • “Application” means the Marsello application owned and operated by Marsello, on which registered Users can use and access the Service.
      • “Consumer” means a person, who has registered and been approved by the Merchant to receive the benefit of the Service.
      • “Marsello, we, us, our” are all references to the marsello product by Marsello Limited.
      • “Marsello Platform” means the Website and the Application.
      •  “Merchant Data” means information that is made available to us for processing through the Marsello Platform on your behalf and any modified form of that data that is created through the processing through the Marsello Platform.
      • “Merchant or you” means any retailer approved by Marsello that has signed up to participate in the Service.
      • “Permission-based” means that all recipients must have opted-in to receive email communications from the Merchant.
      • “Service(s)” has the meaning set out in clause 1 of these Merchant Terms.
      • “Users” means Merchants and Consumers.
      • “Website” means any Marsello website or page derived from www.marsello.com.