Merchant - Terms of Use

As at 26th October 2017

 
  1. 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 analysing 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 within 14 days of those amendments becoming effective (by posting those amended Merchant Terms on the Website) and give you the option to opt out of receiving further Services (subject to the payment of any outstanding Fees). Any lack of response within these timeframes will be taken as you having accepted the amended Merchant Terms.
  2. 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 without notice or further explanation.
    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, you will no longer be entitled to receive Services, and you will forfeit any fees already paid, including for promotions that will be removed from the Marsello Platform or for packages that have already been purchased.
    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 party. You must immediately notify Marsello of any unauthorised use of your login details or any other breach of security.
  3. Trial Membership
    1. You may, depending on the product or offer, be able to create a trial account free of charge for a specified period. You will still need to complete an application form and be approved as a Merchant in order to access this trial membership.
    2. Your trial membership will provide you with access to the Marsello Platform and to Services for the set period.
    3. When your trial membership ends, if you have not informed us that you wish to end your membership prior to the end of your trial membership period, you will be billed monthly in advance for the relevant Services and be liable to pay the applicable fees as set out on the pricing page of our Website.
    4. You must abide by these Merchant Terms, to the extent relevant, for the trial membership period.
  4. 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 any 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 organise full and final payment of the applicable Fees. If you do not fully pay the relevant Fees within this timeframe, your access to the Services and Marsello Platform will cease to be available to you.
    5. You will not be liable to pay any Fees during the initial trial period.
    6. Unless otherwise agreed, if your membership has not been canceled prior to the end of a month, you will be invoiced for a subsequent month.
  5. 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.
    3. 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 period.
    4. If you have paid your subscription annually in advance, Marsello will not provide any refund for any remaining period.
  6. Use of Marsello Platform and Service
    1. Your use of the Marsello Platform and the Service is done at entirely your own risk.
    2. We give no warranty of reliability of access to and use 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 from 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. Any unauthorised use of the Marsello Platform or Service (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.
  7. Use of Information
    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. Marsello may also, 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.
    6. Please see our Privacy Policy for further information regarding use, access and disclosure of personal information and other privacy related matters.
  8. Limitation of Liability
    1. To the fullest extent permitted by law, neither party is liable to the other party for any loss, injury or damage suffered or incurred by the first party resulting out of or in connection with these Merchant Terms, whether direct or indirect, special, incidental or consequential, including any loss of profits, revenue or anticipated saving, or loss of data.
    2. To the extent any liability is not covered by clause 8(1), the maximum aggregate liability of either 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 previous 12 months.
    3. Nothing in this clause 8 limits the Merchant’s obligation to pay the Fees or any other amounts expressly payable under these Merchant Terms when due.
    4. These limitations apply irrespective of how liability arises, whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise, but will not apply to or limit the liability of either party for breach of confidentiality, or for any fraudulent, wilful or unlawful act or omission.
    5. You are solely responsible 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 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.
  9. 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 this Agreement; 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 5D of the Fair Trading Act 1986 (FTA) and 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 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 and sections 9, 12A, 13 and 14 of the FTA.
  10. 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 if, without limiting any other rights available to Marsello at law as a result of any breach of these Merchant Terms (or the Privacy Policy) by you 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, damages, expenses or other amounts payable to Consumers or any other third party by Marsello, or incurred by Marsello in relation to the Consumer or any other third party arising in connection with any breach of these Merchant Terms by you or otherwise as a result of or to the extent caused by your acts or omissions. For the avoidance of doubt, the exclusion set out in clause 8(1) does not apply in relation to this clause 10(2).
  11. General Guidelines
    1. Damage: You agree not to intentionally damage the Marsello Platform or the Service in any way.
    2. Force Majeure: Either party may terminate these Merchant Terms by notice in writing to the other party, with immediate effect on the date specified in that notice, if either party is unable to perform all, or a substantial part, of its obligations under these Merchant Terms as a result of an event or circumstance beyond the reasonable control of either party which makes it impossible or illegal to perform that party’s obligations (Force Majeure Event) for a continuous period of 30 business days. We are not liable for lack of performance, unavailability or failure of the Marsello Platform or Service, or failure to comply with these Merchant Terms because of any Force Majeure Event.
    3. 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.
    4. 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.
    5. 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.
    6. 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. Title to, and all of these intellectual property rights, remains our (or our licensor’s) property. Reproduction of any intellectual property is prohibited without our express consent.
    7. 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.
    8. Assignment: You may not assign or transfer any rights or obligations under these Merchant Terms to any other person without our consent.
    9. 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
  12. 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.
      • “Marsello, we, us, our” are all references to the marsello product by Collect Limited.
      • “Marsello Platform” means the Website and the Application.
      • “Consumer” means a person, who has registered and been approved by the Merchant to receive the benefit of the Service.
      • “Merchant or you” means any retailer approved by Marsello that has signed up to participate in the Service.
      • “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.