Terms & Conditions

Tailbase Service Agreement

SOFTWARE AS A SERVICE AGREEMENT

TAILBASE a division of PG SOLUTIONS Inc., a Canadian corporation (“TAILBASE“), shall provide, but not limited to, website template, website hosting, eCommerce template, eCommerce connector, eCommerce App, catalogue, price management, digital advertising placement, and/or price tag software services (“Products & Services”) to the undersigned (“CLIENT”) upon the terms and conditions set forth herein. The specific Products & Services provided to CLIENT and the Fees to be paid by CLIENT are set forth in the sign-up form executed by CLIENT (the “Proposal“). The Proposal along with these terms and conditions constitute the entire agreement between TAILBASE and CLIENT (this “Agreement”) and superseded any prior agreements between the parties hereto. TAILBASE reserves the right to modify this Agreement at any time and for any reason by providing written notice to CLIENT. By continuing to use or permit use of the Products & Services after receipt of such notice, CLIENT acknowledges and accepts the terms of the changed Agreement.

TERMS AND CONDITIONS

PLEASE READ THE TERMS AND CONDITIONS FOR USE OF THE PRODUCTS & SERVICES IN THEIR ENTIRETY BEFORE USING THE PRODUCTS & SERVICES. BY ACCESSING OR PERMITTING ACCESS TO THE PRODUCTS & SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE, ACCESS, OR PERMIT USE OF THE PRODUCTS & SERVICES.

1. AUTHORIZATION

1.1.  Subject to the terms and conditions of this Agreement, including without limitation, payment of the Fees by the CLIENT, TAILBASE grants to CLIENT a personal, non-exclusive, non-transferable limited right during the term defined in the Proposal (a) to allow CLIENT to access and use the Products & Services in accordance with the documentation solely for CLIENT’s internal business purposes and (b) to use, copy and modify the documentation solely for the purpose of creating and using internal training materials relating to the Products & Services.

2. DEFINITIONS

2.1.  The following terms shall have the meaning set out below; all other capitalized terms not otherwise defined in this section shall have the meaning set forth in the Agreement:

2.1.1  “Fees” refers to all amounts to be paid to TAILBASE by the CLIENT for the provided Products and Services in accordance to the agreed upon price, whether Fees are monthly fees, upfront fees, or one-time fees as described in section 3 – FEES AND PAYMENTS.

2.1.2  “Product(s)” refers to the software provided by TAILBASE and includes, but is not limited to, websites, add-ons, third-party integrations which the CLIENT is purchasing from TAILBASE.

2.1.3   “Products & Services” refers to the totality of TAILBASE’s offering of both Products as defined in 2.1.2 and the Services as defined in 2.1.5.

2.1.4  “Proposal” refers to the document outlining the Products & Services purchased along with their description, respective terms, costs, and added notes.

2.1.5  “Service(s)” refers to that which is carried out by our team outside of the Products purchased and includes, but is not limited to integration, training, custom development and consulting.

3. FEES AND PAYMENT

3.1.  In consideration of receiving the Products & Services, the CLIENT agrees to pay to TAILBASE the Fees and all applicable expenses as described and agreed to in the Proposal in accordance with the payment terms and schedule as defined below:

3.1.1.  Upfront Fees​

3.1.1.1.  Upfront fees refer to a portion or the totality of the amount due at the time the CLIENT enters into an Agreement with TAILBASE for the purchase of Products & Services such as, but not limited to, a website with a setup fee, Digital marketing campaign fee, or a customized integration requiring a portion of the costs covered at the effective date of the Proposal.​

3.1.2.  Monthly Fees​

3.1.2.1.  Monthly fees refer to the monthly recurring fees due on the first of each month for Products & Services the CLIENT has purchased such as, but not limited to, TAILBASE website, TEP services, digital marketing, Tracktail, financing integrations, 3rd party subscriptions, add-ons, API connections, and any other Product or Service carrying a monthly Fee.​

3.1.2.2.  The purchase of Products & Services with a monthly fee will be prorated for the remainder of the month it was purchased in and sent with the following month’s invoice​

3.1.2.2.1.  In the case where the invoice for a Monthly Fee for the upcoming month has already been issued prior to the purchase of a Service or a Product carrying Monthly Fees, the amount will be added to the next invoice carrying monthly fees and will be prorated​

3.1.3.  One-Time Fees​

3.1.3.1.  One-Time Fees refer to the amount owed following the purchase of Products & Services, development, add-ons, etc. that requires a one-time payment upon the delivery of the Products & Services to the CLIENT such as, but not limited to, landing pages, custom banners, custom catalog creations, custom development, professional services etc.​

3.1.3.2.  One-Time Fee amounts may be modified if additional work is requested and agreed upon during the execution of the work in progress or may require a new agreement based upon the nature of the new request in both effort and timelines.​

3.2.  The Fees set out in this Agreement are exclusive of taxes. CLIENT agrees to pay all foreign, federal, state, provincial, county, or local income taxes, value added taxes, use, personal, property sales and any other taxes, tariff, duty, or similar charges that may be levied by a taxing authority (excluding taxes on TAILBASE’s net income).

3.3.  If any Fees are not paid when due, then at TAILBASE’S discretion, (a) such Fees may accrue late interest at the rate of 2.0% (24% per annum) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such Fees were due until the date paid, and/or (b) TAILBASE may suspend the Products & Services, including all CLIENT access to the Products & Services, pursuant to APPENDIX A

4. TERMINATION / CANCELLATION

4.1.  Either party may terminate this Agreement at any time for any reason by written notice to the other party as per Appendix A – Cancellation process. Upon such termination, CLIENT shall immediately cease all use of or access to the Products & Services. Under no circumstance is TAILBASE obligated to make refunds of any payments received by TAILBASE. Termination of this Agreement by either party shall not relieve CLIENT of surviving obligations herein.

4.2.  Effect of Termination.
In the event of termination or expiration of this Agreement:

4.2.1.  All rights granted to CLIENT in this Agreement shall immediately terminate and TAILBASE will immediately cease to perform or provide the Products & Services;​

4.2.2.  CLIENT shall pay all amounts due under this Agreement until the end of the term of this Agreement, but not for more than twelve months;​

4.2.3.  CLIENT shall return to TAILBASE or at TAILBASE’s request purge or destroy all copies of any Confidential Information of TAILBASE in its possession or under its control (except as required under any statute or legislation related to retention requirements) and provide a duly authorized certificate of an officer of CLIENT confirming same within thirty (30) days;​

4.2.4.  CLIENT shall ensure a complete removal from its systems of any catalog used or copied during the use of TAILBASE Products & Services. For purposes of clarity, the CLIENT may continue to use the data obtained through the data API or website catalogs for internal business purposes and as long as the CLIENT cannot give away, rent, lease or otherwise sell, resell, sublicense, distribute or transfer the data to a third-party.​

5. CLIENT INDEMNIFICATION

5.1.  CLIENT is solely responsible for its data, its use, and its users’ use, of the Products & Services in any way, and all legal liability arising out of or relating thereto. CLIENT shall defend, indemnify and hold TAILBASE and each of their respective officers, directors, employees and agents (the “Indemnified Party”) harmless from and against any and all losses, costs, damages and expenses (including reasonable attorney’s fees) that the Indemnified Party may suffer in connection with any demands, claims, actions, suits or proceedings arising out of or in connection with (i) the use or access of the Products & Services by CLIENT or its users or (ii) CLIENT’s data, including but not limited to any third party claims that the inclusion, use, reference, incorporation of or linking to any third party materials or the CLIENT’s data violates such third party’s copyright and/or other intellectual property, privacy or other rights, or that such use is illegal.

5.2.  IN NO EVENT WILL TAILBASE BE HELD LIABLE FOR ANY ERRORS IN, OMISSIONS FROM OR UNAVAILABILITY OF THE PRODUCTS & SERVICES, INCLUDING BUT IN NO WAY LIMITED TO PRICING ERRORS. EACH CLIENT SETS THEIR OWN RETAIL PRICES AND STORE POLICIES.

6. THIRD PARTY AGREEMENTS

6.1.  CLIENT agrees to honor the terms of their agreements with various third parties, including but not limited to, manufacturers, buying groups, and clients. TAILBASE is not responsible for CLIENT disagreements with such manufacturers, buying groups, or CLIENTs, or any other third party that might arise out of CLIENT’s use of or access to the Products & Services. CLIENT’s obligations under this section shall survive termination of this Agreement.

7. TIME TO PERFORM

7.1.  TAILBASE agrees to use commercially reasonable efforts to provide the Products & Services, as may be the case, in the time periods forecasted by TAILBASE or agreed upon with CLIENT.

7.2.  CLIENT is responsible for compliance with all laws, including without limitation laws related to any interaction with, or advertising to, CLIENTs or potential CLIENTs of CLIENT. TAILBASE shall have no liability for CLIENT infractions of such laws that might arise via CLIENT use of or access to the Products & Services. CLIENT agrees to indemnify, defend, and hold harmless TAILBASE Indemnified Parties against any claims that may arise as the result of CLIENT’s violation of any local, state, federal or international law, such indemnification to survive termination of this Agreement.

8. COMPLIANCE WITH LAWS

8.1.  CLIENT is responsible for compliance with all laws, including without limitation laws related to any interaction with, or advertising to, CLIENTs or potential CLIENTs of CLIENT. TAILBASE shall have no liability for CLIENT infractions of such laws that might arise via CLIENT use of or access to the Products & Services. CLIENT agrees to indemnify, defend, and hold harmless TAILBASE Indemnified Parties against any claims that may arise as the result of CLIENT’s violation of any local, state, federal or international law, such indemnification to survive termination of this Agreement.

8.2.  If TAILBASE believes that CLIENT is not in compliance with law, TAILBASE may immediately revoke CLIENT’s use of the Products & Services platform and take any other action in law or equity against CLIENT that it deems appropriate.

9. OWNERSHIP OF INTELLECTUAL PROPERTY

9.1.  Each party hereby mutually grants to the other a non-exclusive, non-transferable, royalty-free license to use the other’s trademarks and corporate logos solely as required to carry out the intent of this Agreement. Each party agrees to use such trademarks and corporate logos in accordance with the other party’s standard usage rules as disclosed in writing in a timely fashion. Each party agrees to use reasonable efforts to protect the other party’s trademarks, corporate logos and other intellectual property rights and to cooperate in its efforts to protect such rights.

9.2.  Except as set forth in this Agreement or otherwise expressly agreed to in writing by the parties, nothing in this Agreement will be deemed to grant or assign to the other party any ownership rights, license rights, or interests of any kind in the other party’s Products, Services or technology or in the other party’s intellectual property or other proprietary rights. Nothing contained herein shall constitute or may be construed as a transfer of ownership of any of the intellectual property rights of either party or its affiliates or their licensors or to otherwise give the other party or any third party any proprietary rights to the Products or intellectual property rights of the former party, its affiliates or their licensors.

9.3.  At either party’s request, the other party shall execute any instruments reasonably requested by the requesting party to perfect its, its affiliates’ or their licensors’ exclusive ownership rights therein. Each party shall, upon expiry or other termination of this Agreement, immediately cease and discontinue any and all use of the trademarks, corporate logos, and other intellectual property rights of the other party.

9.4.  TAILBASE is and shall at all times remain the owner of all copyright, trademarks, trade secrets, patents, and any other intellectual property rights in and to the Products & Services and related documentation, materials, logos, names and other support materials provided pursuant to the terms of this Agreement. CLIENT shall acquire no right whatsoever to all or any part of the Products & Services, or underlying software except the limited right to access and use the Products & Services in accordance with the terms of this Agreement and TAILBASE reserves all rights not expressly granted to CLIENT. CLIENT must fully reproduce any copyright or other notice marked on any part of the documentation or other materials on all authorized copies and must not alter or remove any such copyright or other notice. CLIENT hereby grants to TAILBASE a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Products & Services, and underlying software any suggestions, ideas, enhancement requests, recommendations or other feedback provided by CLIENT relating to the operation of the Products & Services.

10. RESTRICTIONS ON USE

10.1.  Except as expressly provided herein, CLIENT may not give away, rent, lease or otherwise sell, re-sell, sublicense, distribute or transfer the license rights granted under this Agreement or otherwise use the Products except as expressly permitted by this Agreement without the prior written consent of TAILBASE.

10.2.  CLIENT agrees that it will not reverse engineer, decompile, translate, or otherwise attempt to derive, or permit or help others to derive the source code relating to all or any part of the Products, or attempt to otherwise convert or alter the Products into human readable code, except to the extent applicable law expressly prohibits the foregoing restriction.

10.3.  CLIENT may duplicate documentation, at no additional charge, for CLIENT’s internal use so long as all required proprietary markings are retained on all duplicated copies.

10.4.  No third party, other than duly authorized agents or employees of CLIENT, shall have access to or use of the Products.

10.5.  CLIENT shall not copy, frame or mirror any part or content of the Products & Services, other than copying or framing on CLIENT’s own intranets or otherwise for CLIENT’s own internal business purposes.

10.6.  CLIENT shall not access the Products in order to (i) build a competitive Product or Service; (ii) copy any features, functionality, or graphics of the Software; or (iii) knowingly allow access to any competitor of TAILBASE.

10.7.  The CLIENT shall not transmit, upload, post, distribute, store or otherwise publish, through use of the Products & Services, any data, material or Information that: (i) contains a software virus, Trojan horse, worm or other harmful or deleterious computer code, files or programs that may adversely affect any hardware or software, or that intercepts or misappropriates any data or information; (ii) is threatening, defamatory, libelous, harassing, profane, is an invasion of privacy, offensive, obscene or harmful; (iii) infringes or otherwise violates any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party; (iv) violates any law, statute, ordinance or regulation; or (v) includes unsolicited bulk e-mails, advertisements or solicitations.

10.8.  CLIENT shall not transmit any data to the system used by TAILBASE to provide the Products & Services that contains software viruses or other harmful or deleterious computer code, files, or programs

10.9.  CLIENT shall not interfere with or disrupt services or networks connected to the system used to provide the Products & Services and shall not attempt to gain unauthorized access to the Products or such Services or networks connected to the system used to provide the Products & Services.

10.10.  CLIENT shall not use the Products & Services to store or transmit any material that is infringing, libelous, an invasion of privacy, obscene, offensive, harmful, illegal or would otherwise violate or infringe the rights of any third party.

10.11.  CLIENT shall not provide the results of using the Products & Services for the purposes of monitoring its availability, performance, functionality, benchmarking, or competitive analysis to any third party.

10.12.  CLIENT may not store catalog data unless given a written consent by TAILBASE.

11. APPLICABLE LAW

11.1.  This Agreement shall be governed by the laws of the Province of Quebec and the laws of Canada applicable therein, regardless of their conflict of law provisions, and shall be construed accordingly. Except as otherwise provided herein, the courts of Montreal, the Province of Quebec or the federal courts of Canada having jurisdiction therein, as applicable, shall have sole and exclusive jurisdiction over any claim whatsoever arising under or in relation to this agreement or its subject matter.

12. NO PARTNERSHIP

12.1.  TAILBASE and CLIENT are, and shall remain, separate entities. Nothing in this Agreement implies that the CLIENT has any partnership, joint venture or other relationship with TAILBASE beyond the contractual relationship set forth herein.

13. NOTICES

13.1.  Any notice or communication required to be given pursuant to this Agreement shall be in writing and may be delivered, mailed by registered mail, or sent by electronic delivery as follows: (a) if to TAILBASE a division of PG Solutions, 217 Avenue Leonidas S Porte 13, Rimouski, Quebec, Canada, G5L 2T5; (b) if to CLIENT at the information set forth in the Proposal.

14. CONFIDENTIALITY

14.1.  For the purposes hereof, the term “Confidential Information” means the terms of this Agreement and all information or material that either party treats as confidential and any information relating to third parties that a party has an obligation to treat as confidential, which is disclosed by or obtained by a party in connection with this Agreement, whether such information is in oral, written, graphic or electronic form, which: is (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances.

14.2.  Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder; (ii) was previously known to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving party without reference to or use of the other party’s Confidential Information which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction. The parties acknowledge that it may receive Confidential Information from the other party or otherwise in connection with this Agreement

14.3.  Each of the parties agree:

14.3.1.  to maintain the Confidential Information of the other party in confidence and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication;

14.3.2.  not to use the Confidential Information of the other party other than in the course of exercising its rights or performing its obligations under this Agreement;

14.3.3.  not to disclose or release such Confidential Information except to the extent required by applicable law or during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that the receiving party shall first give reasonable notice to the disclosing party prior to such disclosure so that the disclosing party may obtain a protective order or equivalent and provided that the receiving party shall comply with any such protective order or equivalent;

14.3.4.  not to disclose or release such Confidential Information to any third person without the prior written consent of the disclosing party, except for authorized employees or agents of the receiving party who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement, and who are bound by confidentiality obligations at least as protective of the disclosing party’s Confidential Information as this Agreement

14.3.5.  and to take such actions as may be reasonably necessary to enforce its agreements with its employees and agents, including commencing legal proceedings.

14.4.  The confidentiality obligations set forth in this Agreement shall survive any termination or expiry of this Agreement.

15. REPRESENTATIONS AND WARRANTIES

15.1.  Each party represents and warrants that:

15.1.1.  to maintain the Confidential Information of the other party in confidence and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication;

15.1.2.  it will conduct business in a manner that reflects favorably on the other party and its Products & Services

15.2.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

16. LIMITATION OF LIABILITY

16.1.  To the extent permitted by applicable law, CLIENT agrees that, the entire liability of TAILBASE in connection with this Agreement for damages, regardless of the form of action, whether in contract or tort, extra-contractual liability or negligence, shall be limited to the actual direct damages and shall not exceed on an aggregate basis the amount of fees paid by the CLIENT to TAILBASE in the twelve (12) months immediately preceding the event causing such liability. Neither party may under any circumstance be liable to the other party for any indirect, consequential, special, punitive, exemplary or incidental damages, or for loss of profits, value or revenues arising in relation to or under this Agreement, damages for business interruption, or loss or corruption of business information or data, even if advised of the possibility of same or if such possibility was reasonably foreseeable.

17. MISCELLANEOUS

17.1.  Headings are used in this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.

17.2.  This Agreement sets out the entire understanding between the parties and supersedes all prior agreements, conditions, warranties, representations, arrangements, and communications, whether oral or written, with respect to the subject matter hereof whether with or by TAILBASE, any of its affiliates, or any of their representatives. TAILBASE reserves the right to modify this Agreement at any time and for any reason by providing written notice to CLIENT.

17.3.  No waiver of any provision hereof, either express or implicit and through conduct or otherwise, shall be valid unless confirmed in writing, and such waiver may not be construed as a waiver exceeding the express terms thereof for the future.

17.4.  Each party shall comply with all applicable laws and regulations with respect to its activities contemplated hereunder, including, but not limited to, any export laws and regulations of Canada and any other applicable jurisdiction.

17.5.  Neither party shall be entitled to assign this Agreement or any of its rights or obligations hereunder, in whole nor in part, to any third party without the other party’s prior written consent, which may not be unreasonably withheld or delayed.

17.6.  If any portion of this Agreement would otherwise be invalid or unenforceable by a court of competent jurisdiction, such portions shall be severed from this Agreement but shall not affect the validity or enforceability of any other provision of this Agreement.

Appendix A – Termination / Cancelation Procedure

The CLIENT and/or TAILBASE may terminate any or all Products & Services based on, but not limited to, the failure to adhere to the terms and conditions of the Agreement, the change of service provider, or delinquency in payment for Products & Services rendered.

1.   Standard Cancellation Procedure initiated by CLIENT

i.   The CLIENT

i.   Will provide TAILBASE with a 30-day notice of cancellation prior to termination of any provided Product or Service

ii.   Will communicate with TAILBASE via email at service@tailbase.com

1.   Cancellation of website services will require CLIENT to fill out a brief survey as part of our cancellation procedures. Survey sent by the service team

ii.    TAILBASE

i.   Will cease providing Products & Services on agreed date

ii.   Provide with final invoice, if applicable

iii.   Provide help with domain transfer, if applicable

iv.   Will send out cancellation form to be filled out by CLIENT for cancellation of website services.

2.   Cancellation Procedure initiated due to Payment Delinquency

i.   TAILBASE reserves the right to halt or terminate Products & Services due to non-payment by CLIENT.

i.   TAILBASE will communicate with CLIENT either by phone or via email to alert CLIENT of pending suspension of Products & Services.

ii.   TAILBASE will halt any and all Products & Services on the suspension date communicated to the CLIENT if non-payment persists.

iii.   TAILBASE reserves the right to terminate the Agreement after 30 days of non-payment following the suspension of Products & Services.

iv.   TAILBASE reserves the right to take legal action for the outstanding term of the Agreement.

ii.   Restoration of CLIENT Products &Services.

i.   TAILBASE will restore Products & Services upon confirmation of successful payment

ii.   TAILBASE reserves the right to charge for reactivation fees or require a new contract to be signed upon request of resuming Products & Services.