Terms | Marsello

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
  authorised 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 with 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:
  1. 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;
  2. by us under clause 15 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 unauthorised other parties. You must immediately notify Marsello of any
  unauthorised use of your login details or any other breach of security.
9. You agree that for the term of your membership, you grant Marsello a free licence to use,
  reference and display your Merchant name and trademarks in any communications,
  including publications, press releases, stories, websites, and social media posts in
  connection with the Marsello brand.
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. You acknowledge that you will be charged based on the Sites connected to the Platform and
  the number of Consumers in your database and it solely the responsibility of the Merchant
  that these are kept up to date so that we may bill you accurately.
7. If you are a Merchant that has entered into an agreement withLightspeed 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 terms 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 or illegally use 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.
SECURITY
1. Security Measures
  1. Marsello will implement appropriate technical and organizational measures to protect
    User Content (including personal information), taking into account the cost of
    implementation and the nature, context, scope and purposes of the processing.
    However, you understand that use of the Services necessarily involves transmission of
    the Merchant Data or the User Content over networks that are not owned, operated or
    controlled by us, and we are not responsible for any of your Merchant Data or User
    Content lost, altered, intercepted, copied or stored across such networks. We cannot
    guarantee that our security procedures will be error-free, that transmissions of your
    Merchant Data or User Content will always be secure or that unauthorized third parties
    will never be able to defeat our security measures or those of our Third-Party Service
    providers.
  2. The Services are provided by us from data centre facilities from which you have remote
    access via the internet, in conjunction with certain offline components provided by us
    under this Agreement. We may use third party service providers to provide limited parts
    of the Services from time to time, including data storage and processing, and you
    consent to us subcontracting these services to those third parties.
2. Security Vulnerabilities
  1. Marsello is committed to maintaining the security of the Services, Merchant Data and
    User Content and understands the importance of working with the security community
    to identify and resolve security vulnerabilities.
  2. If you become aware of a security vulnerability, please promptly notify us at
    security@marsello.com and provide us with as much information as possible about its
    nature and scope. We will acknowledge all reported security vulnerabilities within 24
    hours of receipt and will work diligently to address any identified issues.
  3. We will treat all reported security vulnerabilities confidentially to protect your identity and
    the security of the Services and will not retaliate against you for reporting a security
    vulnerability in good faith.
3. Security Breach
  1. If you become aware of any security breach in the Services, such as a loss or
    unauthorized use, disclosure of personal information in association with the services,
    you will promptly notify us. If you are a Merchant, Marsello will notify you without undue
    delay on learning of an incident involving any loss of or unauthorized access to or
    disclosure of any personal information of which you are the controller. You will provide
    us with all reasonable assistance we request in the case of a security breach.
4. Maintenance and Repairs
  1. Your access to Services may be occasionally suspended or restricted to allow for
    repairs, maintenance or the introduction of new facilities or services. Due to the nature
    of technical outages, we cannot guarantee notice prior to unplanned outages. We will
    not be held responsible for any delay or failure to comply with our obligations under
    these conditions if the delay or failure arises from any cause which is beyond our
    reasonable control.
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:
  1. Any email offering to sell illegal goods or services
  2. Any email that violates CAN-SPAM laws
  3. 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
  4. 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.
6. Your use of the service must be reasonable and not excessive. Marsello (acting reasonably)
  may determine your usage to be unreasonable and excessive if on average it materially
  exceeds the average level of usage of other users in that same period (Excessive Use). If we
  reasonably consider that your use is excessive use, we will use reasonable endeavours to
  notify you of the excessive use, and You will have three days after the date of that
  notification to reduce your usage. If You fail to sufficiently reduce your usage after three
  days, we may:
  1. immediately suspend, modify or limit your use of the services; or
  2. charge You for the excessive use at a rate determined by Marsello, which Marsello will
    notify to You in writing.
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:
  1. Marsello collects information about you on the Merchant’s behalf (as authorised by
    the relevant Merchant) and uses that information to provide Services to the Merchant;
    and
  2. 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:
  1. 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;
  2. 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
  3. 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.
2. In all cases you should:
  1. 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
  2. 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 13.3, neither
  party is liable to the other party for any:
  1. indirect, special, incidental or consequential, loss, injury or damage; or
  2. 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.
2. 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.
3. Nothing in this clause 13 limits:
  1. the Merchant’s obligation to pay the Fees or any other amounts expressly payable
    under these Merchant Terms when due;
  2. the liability of either party for a breach of confidentiality or for any fraudulent or
    unlawful act or omission; or
  3. the Merchant’s liability under clause 14.
4. These limitations apply irrespective of how liability arises, whether in contract, equity,
  tort (including negligence), breach of statutory duty.
5. You are solely responsible for the content of your marketing communications with
  Consumers and for providing any promotions or rewards to Consumers.
6. You are solely responsible for resolving any disputes with any Consumer. We make
  no representation or warranty to or in relation to any Consumer.
7. 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:
  1. it has full power, capacity and authority to execute, deliver and perform its obligations
    under these Merchant Terms;
  2. 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
  3. 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:
  1. payable to a Consumer or any other third party by Marsello; or
  2. otherwise incurred by Marsello in relation to a Consumer or any other third party,
3. in each case arising out of, or in connection with, any breach of these Merchant
  Terms (including clause 12) 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 13.1 and the
  limitation set out in clause 13.2 does not apply to your liability under this clause 15.
ACCESS TO MERCHANT DATA FOLLOWING CANCELLATION / TERMINATION
1. 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:
2. “Application” means the Marsello application owned and operated by Marsello, on which
  registered Users can use and access the Service.
3. “Consumer” means a person, who has registered and been approved by the Merchant to
  receive the benefit of the Service.
4. “Excessive Use” means the level of usage of Marsello, which is greater than the normal
  usage level across the average of users.
5. “Marsello, we, us, our” are all references to the Marsello product by Marsello Limited.
6. “Marsello Platform” means the Website and the Application.
7. “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.
8. “Merchant or you” means any retailer approved by Marsello that has signed up to
  participate in the Service.
9. “Permission-based” means that all recipients must have opted-in to receive email
  communications from the Merchant.
10. “Service(s)” has the meaning set out in clause 1 of these Merchant Terms.
11. “Site(s)” are the physical store locations and/or eCommerce sites integrated into the
  Platform.
12. “Users” means Merchants and Consumers.
13. “Website” means any Marsello website or page derived from www.marsello.com.

Merchant - Terms of Use

05th September, 2024