Terms & Conditions

Last updated March 19, 2021

 

These Service Terms ("Agreement") are entered into by and between Pelcro Inc. ("Pelcro", "We", "Us", "Our") and anyone registering for an account on the Pelcro website (“Customer”, “you”, “your”). By registering for an account on the Pelcro website (whether for a trial period or for a longer term) or using any Services (as defined below), you hereby agree to be bound by this Agreement, without any reservations, modifications, additions or deletions. If you do not agree to all the provisions in this Agreement, you are not authorized to use the Services.

 

IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES ON WHOSE BEHALF INDIVIDUAL USERS ACCESS THE SERVICES. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

WE MAY AMEND THIS AGREEMENT AT ANY TIME AND FROM TIME TO TIME BY POSTING THE AMENDED TERMS ON THE PELCRO WEBSITE. IT IS YOUR RESPONSIBILITY TO CHECK THE PELCRO WEBSITE PERIODICALLY FOR CHANGES. YOUR USE OF THE SERVICES FOLLOWING THE POSTING OF ANY CHANGES TO THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THOSE CHANGES. IF WE MAKE ANY SUBSTANTIAL CHANGES TO THE AGREEMENT THAT MATERIALLY AFFECT YOUR LEGAL RELATIONSHIP WITH PELCRO, WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY YOU BY POSTING A PROMINENT NOTICE WHEN YOU LOG-IN TO YOUR ACCOUNT FOR THE FIRST TIME FOLLOWING THOSE CHANGES OR BY EMAIL TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT.

This Agreement permits Customer to purchase subscriptions to the Services pursuant to any Pelcro ordering documents, which may include (i) online registration, plan selections or purchases; (ii) order descriptions; or (iii) order confirmations that set forth the basic terms and conditions under which the Services will be delivered and summarize the type of subscription plan selected by Customer ("Order Form(s)"). This Agreement will govern Customer's use of the Services, including any trial period, its initial purchase of a Services subscription, as well as any future purchases or subscription renewals.

 

If you have signed up for a free, time-limited trial period and you do not want to proceed with a longer-term subscription to the Services, it is your responsibility to notify Pelcro of your intention to terminate the trial period and your relationship with Pelcro via your online account settings or by emailing support@pelcro.com. If you do not terminate your trial period as set forth in this paragraph, you are indicating your intention to proceed with a longer-term subscription to the Services (for the plan that you selected during the account registration process) and your payment of all associated Service Fees (as defined below) in accordance with the terms of this Agreement.

 

Privacy: Protection of Personal Data is very important to us. Our Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Data you provide to us. You agree to review the terms of our Privacy Policy, which we update from time to time. Our Privacy Policy is located here.

 

This Agreement includes and incorporates these Service Terms, the above-mentioned Order Form, the Data Processing Addendum (“DPA”), Pelcro’s Policies (as defined below) and any other agreement that may be entered into between yourself and Pelcro (including SOWs, as defined below).

 

To make an inquiry about this Agreement, contact: support@pelcro.com.

You may not access the Services if you are Our direct or indirect competitor, except with our prior written consent (which consent may be arbitrarily withheld). In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. The mirroring, scraping or data-mining of any of Our websites or any of their content in any form and by any means is strictly prohibited.

1. Definitions

“Application” means the use of the subscription management platform with its associated services such as authentication, dynamic paywall, payment services, customer relationship management, analytics as included in each subscription with Customer.

“Customer Data” means all the information directly submitted by Customer or collected in any other way in the Customer account in the Application.

 

“Implementation Fee” is a one-time fee set forth in any signed offline agreement or Statement of Work (“SOW”) signed separately, based on an estimated set number of hours, subject to the terms herein. Additional hours greater than the estimated hours will be subject to the hourly rate.

 

“Implementation Services” are additional services purchased by Customer and described in any signed offline agreement or SOW. Additional development, and consulting may be requested by Customer at an additional hourly rate.

“Initial Service Term” is defined as 1 (one) term (month or year) starting from the date on which the Services Fees, defined below, are invoiced according to the Order Form.

“Services” means the use of the subscription management platform together with any other products and services that may be offered by Pelcro and its affiliates.

“Service Capacity” means the allowed fixed number of monthly active subscriptions (any subscription that has not yet expired) and the number of monthly authenticated users (end-users with an email and password) according to the plan selected in the Order Form while signing up. You can learn more about the pricing plans by visiting the pricing page here.

The overage fee per additional 1,000 active subscriptions is $100 per month and the overage fee per additional 1,000 authenticated users is $10 per month, which shall be charged to Customer as of the first additional active subscription or authenticated user above either (i) the Service Capacity or (ii) each additional tranche of 1,000 additional active subscriptions or authenticated users, as applicable.

“Services Fees” are the set fees determined by the selected plan in the Order Form. They are billed monthly subject to the terms of Section 5 herein.

2. SAAS Services and Support

2.1 Subject to the terms of this Agreement, Pelcro will use commercially reasonable efforts to provide Customer the Services. As part of the account registration process, Customer will identify an administrative email and password for Customer's Pelcro account. Pelcro reserves the right to refuse any registration or to cancel passwords it deems inappropriate.

2.2 Subject to the terms hereof, Pelcro will provide Customer with technical support services in accordance with Pelcro's standard practices as found here.

3. Restrictions and Responsibilities

3.1. Customer Responsibilities

3.1.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Pelcro or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Pelcro hereby grants Customer a non-exclusive, non-transferable, non-sub-licensable license to use such Software during the Term only in connection with the Services.

3.1.2 Subject to the terms of the Agreement and payment of Fees as set forth below, Customer shall be granted a non-exclusive, non-transferable license to access and use the Software for the Customer website(s) entered during the account registration process (the "Website(s)").

3.1.3 Customer may use Pelcro's API to make calls to the API and develop, implement and distribute applications for use by Customer in connection with the Services.

3.1.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Pelcro's standard published policies then in effect (the "Policies") as found here, which are incorporated by reference herein, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Pelcro against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of the Services. Although Pelcro has no obligation to monitor Customer's use of the Services, Pelcro may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.1.5 Customer shall be responsible for obtaining and maintaining their own equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment"). Customer shall also be responsible for maintaining the security of the above-mentioned Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

3.1.6 Customer shall be solely responsible (i) for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired the Customer Data, (ii) to ensure that all necessary notices have been provided, and all required consents and/or approvals have been obtained, in order to allow Pelcro and its Affiliates to Process (as defined in the DPA) Customer Data in connection with the Services, (iii) to use best efforts to prevent unauthorized access to or use of the Services, and notify Pelcro promptly in writing of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and the rules and/or terms and conditions which We may from time to time post on the Pelcro homepage, and all applicable laws and government and other rules and regulations.

3.1.7 Customer acknowledges and agrees that its use of the Services is also governed by the Pelcro DPA found here (as applicable), which includes the approved list of Sub-processors found here. All of the foregoing are hereby incorporated by reference into this Agreement.

3.2. Pelcro Responsibilities

3.2.1 Pelcro shall provide availability of the Services (other than Implementation Services) on a yearly basis except for Excluded Downtime (as defined below) (the “Service Level Agreement”, "SLA"). Our SLA is located here.

3.2.2 Pelcro will take all reasonable steps to protect information received from Customer from loss, misuse, or unauthorized access, disclosure, alteration and/or destruction. Pelcro will use a variety of physical, administrative and technical safeguards designed to help protect it from unauthorized access, use and disclosure. Pelcro has implemented best-practice standards and controls in compliance with internationally recognized security frameworks. Pelcro also uses encryption technologies to protect data. Pelcro's security practices can be found here.

3.2.3 Usage Limitations: Services may be subject to other limitations, such as, for example, but without limiting the generality of the foregoing, limits on disk storage space, on the number of calls Customer is permitted to make against Our application programming interface “Rate Limiting”, and, for Services that enable Customer to provide public user interface, on the number of page views by visitors to those websites.

4. Confidentiality and Proprietary Rights

4.1 Each party (the "Receiving Party”) understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Pelcro includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Customer shall own all rights, title and interest in and to Customer Data.

4.3 Upon any termination, Pelcro will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days and will assist Customer with best efforts and in good faith with the transfer of this data.

4.4 Pelcro will keep backups of the Customer Data in order to reduce risk of data corruption or data loss.

4.5 Notwithstanding anything to the contrary, Customer acknowledges and agrees that (i) Pelcro’s Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iii) the Structured Data (as defined below), as well as any trademark, invention (patentable or unpatentable), patent application, patent, work, trade secret, source code, object code, know-how and any intellectual property relating to the foregoing (the "Intellectual Property”) is the exclusive property of Pelcro and shall remain under its control. Customer undertakes to refrain from taking, authorizing or taking part in any action whatsoever that undermines, directly or indirectly, the scope and validity of the Intellectual Property. For the purpose of this Agreement, “Structured Data" means a dataset comprising the anonymized Customer Data, or a subset thereof, and/or data emanating from other sources, and/or data processed by or generated by functionalities of the Software. No rights or licenses are granted to Customer except as expressly set forth herein.

5. Payment of Fees

5.1 Customer will pay Pelcro the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Inquiries should be directed to Pelcro's customer support department at support@pelcro.com.

5.2 Customer must keep a valid credit card on file with Pelcro (stored via a PCI Compliance provider, independent from Pelcro’s platform) to pay for all incurred and recurring Fees. Pelcro will charge applicable Fees to the credit card account that Customer authorizes ("Authorized Card”), and Pelcro will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If Customer has failed to pay any Fees or other amount owing under this Agreement by ten (10) or more days following the due date for payment of such Fees, We may, without limiting Our other rights and remedies under this Agreement and at law, require that Customer immediately pay any and all unpaid Fees and other obligations to Us under this Agreement (or otherwise) so that all such obligations become immediately due and payable, and forthwith suspend the Services (and any other of Our services and/or obligations to Customer) until all such Fees and other amounts are paid in full. Once Services are suspended, Customer will be required to pay a reactivation fee in addition to any other Fees and other charges owing on the outstanding Order Form or agreement in order to access the Services again.

5.3 Implementation Fees are due as per the terms of the Order Form or SOW, as applicable, and may be due prior to Customer being able to use the Services. Services Fees are due from the date the invoice is issued by Pelcro according to the Order Form.

5.4 Pelcro may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pelcro thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Unless otherwise stated, Our Fees and other charges do not include any taxes, levies, duties or similar governmental or other assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If We have the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.5, the appropriate amount shall be invoiced to and promptly paid by Customer, unless Customer provides Us with a valid and satisfactory to Us (in our sole discretion) tax exemption certificate authorized by the appropriate taxing authority.

5.5 Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in American Dollars (USD).

5.6 Payment processing services for the Services are managed by Pelcro but provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By entering into this agreement or continuing to use the Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Pelcro enabling payment processing services through Stripe, Customer agrees to provide Pelcro accurate and complete information about Customer and Customer's business, and Customer authorizes Pelcro to share its information and transaction information related to Customer's use of the payment processing services provided with Stripe. The Stripe Services Agreement can be accessed by visiting the following link.

6. Term and Termination

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods [equivalent to the Initial Service Term] (the “Renewal Term” and, together with the Initial Service Term, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 This Agreement may be terminated by either party if the other party breaches any representation or warranty or fails to cure any failure to perform any material obligation within thirty (30) days after notice from the other party specifying in reasonable detail such failure to perform. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.3 Upon any termination of this Agreement, all Fees which are outstanding as at the date of such termination, and all Fees remaining to be paid for the duration of the Term, shall become immediately due and payable and Customer shall immediately pay all such unpaid Fees from all Order Forms. In no event shall any termination by Pelcro relieve Customer of the obligation to pay any Fees and/or other amounts payable to Pelcro up to and including the last day of the Term of all Order Forms.

6.4 Upon request by Customer made within thirty (30) days after the effective date of termination of a Services subscription, Pelcro will make available to Customer the ability to download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Pelcro shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in Pelcro systems or otherwise in Our possession or under Our control.

6.5 Immediately upon the effective date of termination of this Agreement, Customer shall (i) stop using the Services and ensure that any and all users’ access to the Services is blocked, and (ii) return or destroy, at Our option, any and all Intellectual Property, assets, Confidential Information, or other documentation which belongs to Pelcro.

7. Indemnification

7.1 Customer covenants and agrees to indemnify and save harmless Us and Our Affiliates and our respective directors, officers, employees, agents and consultants of and from all liabilities, claims, demands, actions, causes of action, damages, losses, costs and expenses whatsoever suffered or incurred by any of them, directly or indirectly, arising out of, under or pursuant to:

1. 1. a breach of any agreement, term or covenant on Customer’s part made or to be observed or performed pursuant to this Agreement, including (without limitation) any breach of Customer’s obligations under the DPA;

   2. any acts or omissions of Customer and/or Customer users in carrying out Customer obligations under the Agreement;

   3. any claim made or brought against Us alleging that Customer Data, or Customer or Customer users’ use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law including (without limitation) any Data Protection Laws (as defined in the DPA); and

   4. any claim of unauthorized use or infringement of any users’ or third party’s privacy or intellectual property rights arising from any use of data (including Customer Data) supplied by Customer.

8. Warranty and Disclaimer

Pelcro shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pelcro or by third-party providers, or because of other causes beyond Pelcro's reasonable control, but Pelcro shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PELCRO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND PELCRO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Customer Warranties: Customer represents and warrants to Pelcro that (i) Customer has the legal power to enter into this Agreement and perform all of its obligations contemplated hereunder, (ii) Customer has all necessary rights, consents and/or waivers to share, use, store, disclose, process or otherwise handle any and all Customer Data including without limitation any Personal Data (as defined in the DPA) contained within such Customer Data; and (iii) Customer will not transmit to Us any malicious code.

9. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PELCRO AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE SERVICE TERMS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PELCRO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO PELCRO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 1 MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PELCRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Pelcro's prior written consent. Pelcro may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Pelcro in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of Canada without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within ninety (90) days of Customer’s subscription to the Services. The parties shall work together in good faith to issue at least one mutually agreed upon press release within thirty (30) days following the date Pelcro's Services are utilized in Customer's production environment, and Customer otherwise agrees to reasonably cooperate with Pelcro to serve as a reference account upon request. Customer agrees (i) that Pelcro may identify Customer as a recipient of services and use Customer's logo in presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Pelcro on its website, marketing material and sales material for promotional purposes. The Agreement is our entire agreement relating to Customer's use of the Services and supersedes any prior or contemporaneous agreements on that subject.