itracMarketer Term of Service.
LAST UPDATE: May 25, 2022
These itracMarketer Terms of Service (“Terms”) apply to this Site (defined below) and all Services (defined below) provided by itracMedia Inc. o/a itracMarketer. (“itracMedia”, “itracMarketer” “we”, or “us”). By clicking through the acceptance of these Terms, visiting or using this Site or accessing and using the Services, you agree on your own behalf, and on behalf of any organization on whose behalf you may act (collectively referred to herein as “you“), to accept and abide by these Terms for each use of the Services and each visit to this Site. If you are an individual agreeing on behalf of your organization, you represent and warrant that you have all requisite authority to bind the organization to these Terms. “You” means the Account Holder, Administrator or User, as applicable.
Please read the Terms carefully before using this website (the “Site“) and accessing and using the Services. These Terms exempt us and others from liability and/or limit our and their liability and contain other important provisions that apply to your use of this Site.
- These Terms apply to all users of the Services, including:
- Account Holders: Account Holder means the person or other entity ultimately responsible for an itracMarketer account (“Account Holder”). Account Holder represents and warrants that the individual it assigns to be its Administrator has the requisite authority to bind the Account Holder in respect of the matters under these Terms and has been designated by the Account Holder to perform administrative tasks in relation to the Services account. The individual that identifies the Administrator represents and warrants that they have the authority to do so. The Account Holder confirms it will be responsible and liable for: (i) the breach of these Terms by the Account Holder, its Administrators and Users; and (ii) any activity that occurs using the Credentials associated with its account;
- Administrators: Administrator means an individual that is indicated as having authority for an Account Holder’s ItracMarketer account within ItracMarketer (“Administrator”). The Administrator confirms that it has the right to bind the Account Holder to these Terms; and
- Users: Users means individuals registered to an Account Holder’s ItracMarketer account who are employed by, or otherwise acting on behalf of, the Account Holder (“Users”). Users are accepting these terms in their own capacity and not on behalf of the Account Holder or Administrator.
- Description. Through this Site, you are able to access the ItracMarketer service as described on the Site and in ItracMarketer documentation, which includes features that allow users to create, send, and manage email messages (“Emails“) and associated permissions and consents (the “Services”). ItracMarketer reserves the right to make changes to the features and functionality of the Services at any time.
- Subcontractors. ItracMarketer reserves the right to provide the Services on its own and through the use of its subcontractors. ItracMarketer is responsible for the compliance of its subcontractors with these Terms.
How it works and Your Responsibility.
- Account. To use the Services you need to register for an account. Your account gives you access to the Services and functions that we may establish and maintain from time to time. To be eligible for an account you must:
- be at least eighteen (18) years old and able to enter into contracts;
- complete the registration process that we have set out;
- agree to these Terms; and
- provide true, complete, and up to date contact and billing/payment information.
- Responsibility. You are solely responsible for the activity that occurs on your account, including: (i) the accuracy of the information in your account and ensuring that your account password is confidential and secure; and (ii) for the accounts of Users that are your personnel, agents, employees and representatives (all references to “your account” include such personnel, agent, employee and representative accounts). All activity conducted in connection with your account will be your responsibility. You are responsible for maintaining the confidentiality and security of your login credentials. You understand that you are responsible for all use (including any unauthorized use) of, and fees incurred under, your account(s). You are also responsible for any account that you have access to, whether or not you authorized the use of that account. You agree that you are solely responsible for your interactions with those to whom you send Emails, and you will only send Emails to those people from whom you have consent or are otherwise permitted to send Emails to in accordance with applicable law. You must immediately notify us of any unauthorized use or tampering of your accounts, or suspected breach of security, and change your password as soon as possible.
- Closing Your Account.
- (a) Either you or ItracMarketer may terminate these Terms (and in the case of termination by ItracMarketer, ItracMarketer may close and deactivate any associated accounts of the Account Holder) at any time and for any reason by giving Notice (as defined in Section 35) to the other party.
- (b) If you provide any information that is untrue, inaccurate, not current or incomplete, or use the Services in a way that violates these Terms, we have the right to immediately suspend your account and terminate your access to the Services in addition to any other remedies available to us.
- (c) If payment is not received 60 days after the invoice date (30 days past due date) we may suspend your account. We will contact your Administrator to notify you of the suspension. In order to reinstate an account suspended for non-payment, you will need to contact ItracMarketer to process payment. We may terminate your account if payment in full is not received 90 days after the invoice date (60 days past due date).
- (d) If you do not use your account to send Emails (logging in is not sufficient) for 180 days, we may suspend your account for inactivity. We will contact your Administrator to notify you of the suspension and permit reactivation of your account. If the account remains suspended for 30 days after we notify your Administrator, we may terminate your account.Suspended accounts cannot be accessed. Forms and transactional Emails and pre-scheduled Emails (for example Emails that are part of a drip campaign) continue to work while accounts are suspended. If we terminate your account for any reason, we will refund you for any Credits you have left, if applicable. Once terminated, whether by you or by us, we may permanently delete your account and all the data associated with it, including the Emails you have sent. At this time, all Services, including forms and transactional Emails will cease to work.
- Emailing Content. When interacting with ItracMarketer via the Services, you agree to provide true and accurate information. Further you understand that providing confidential information via email may be an unsafe practice. You understand that you are solely responsible for anything that you send to anyone using our Services.
- Support. We provide you with a reasonable amount of support to help you become self-sufficient with the Services. This support is in the form of an onboarding process, documentation and videos on the Site, the ItracMarketer support ticket system, and by telephone. Reasonable support is available at a cost in a contractual agreement. Support which is in excess of the reasonable included amount, as determined by ItracMarketer acting reasonably, may be made available by ItracMarketer as a chargeable service at its then current consulting rates (available on the Site).
- Product and Consulting Services.We may provide you with professional and consulting services upon request. We provide such services at our then current rates. Please contact us for pricing.
- Monitoring. We will not monitor the content or information transmitted over the Services, but may investigate (but are not obligated to do so) if we receive complaints of possible inappropriate use or violations of these Terms, including any violations of CASL. ItracMarketer may, at any time and in its sole discretion, make determinations that particular uses are or are not appropriate with or without notice to you, according to the guidelines set out in Section 20. In the event ItracMarketer determines that particular use is in breach of these Terms, it may notify you and give you the opportunity to cure the breach, but retains the right to immediately suspend your account and access to the Services.
- Term. The Term begins when you sign up for an account with us and continues until termination in accordance with Section 7.
- Changes. We may decide at any time and for any reason to add to, remove, or change any part of these Terms. If we do, we will update the “Last Update” notice at the top of these Terms to reflect the date we made those changes. We will also notify your Administrator by email of the changes to the Terms. It is your responsibility to ensure the Administrator contact information provided to ItracMarketer remains true, complete, and up to date during the Term. The changes to the Terms will be effective as of the date the changes to these Terms are posted to the Site. If any change to these Terms is not acceptable to you, you must stop using the Services immediately. If you keep using the Services after we posted the changes to the Terms and notified your Administrator of the changes to the Terms, you agree that you will be deemed to have accepted those changes. We may change the Site, the Services, or any features of the Services at any time.
- What do I pay for the Services?
- Please contact us to review a price for our application services. We determine pricing based upon your current needs and requirements. Our pricing is based upon monthly, annual and multi-year subscriptions. When you opt for the monthly subscription, you pay the then current monthly rate as described on the Site for the ability to send unlimited Emails to your contacts.
- How do I pay for the Services?
- You can pay for the Services using any major credit card or electronic funds transfer (EFT). At our discretion we accept cheques as well. We may change which methods of payment we accept at any time.
- Can I get a refund?
- The amounts you have paid for using the Services are non-refundable if you cancel your account.
- What do we own?
- Except for Your Content (defined below), all materials included on our Site, the Services and all materials therein or transferred thereby, including without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, photographs, audio, videos, music, and content belonging to ItracMarketer or other users (the “ItracMarketer Content“) (and all intellectual property rights related thereto) are owned by us or our licensors. Subject to these Terms and the payment of applicable fees, ItracMarketer hereby grants you a non-exclusive, limited, non-transferable license during the Term to view and access the Site and use the Services and ItracMarketer Content as permitted by these Terms. We reserve all rights not expressly granted herein with respect to the Services and the ItracMarketer Content.
- What do you own?
Rules and Abuse.
- Reporting Abuse. If you believe anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from another user of the Services, if you think another user of the Services has posted material that violates any rights of ItracMarketer or a third party, including any copyright or intellectual property right of a third party, or if you think another user of the Services is otherwise violating these Terms, please contact us at [email protected].
- Acceptable Use of the Services. You represent and warrant that your use of the Services will comply with all applicable laws and regulations. You agree that you are responsible for determining whether the Services is suitable for you to use in your jurisdiction. For greater certainty, you agree that you shall (and agree to ensure that your employees, agents and authorized users shall):
- only use the Services in a way that complies with the law and regulations, including data protection, electronic communication, anti-spam legislation, and privacy laws that apply to the countries where you are operating;
- not use the Services to spam, or send any Email that is unlawful, harmful, abusive, harassing, offensive, infringing, invasive of personal privacy, defamatory, or threatening;
- not use the Services to send any Email that relates to gambling, credit cards, debt collection, unregulated pharmaceuticals, or adult content, unless approval in writing is obtained in advance from ItracMarketer, which may be withheld for any reason in ItracMarketer’s sole discretion;
- not modify, reverse engineer, decompile, create derivative works from, or disassemble this Site or Services for any reason whatsoever, including for the purpose of creating competitive products or services;
- not do anything that will interfere with the proper working of the Services, and you will not upload or send invalid data, malicious code, viruses, or other software agents through the Service; and
- have all the necessary permissions and consents to provide Your Content to ItracMarketer and to allow us to perform the Services, including as required for us send Emails you create to the applicable recipient(s) on your behalf.
- Cross Border Transfers. If you choose to access this Site from outside Canada, you do so at your risk and you are responsible for compliance with applicable local laws (e.g. laws related to the transfer of personal data across borders).
Confidentiality and Privacy.
- Confidentiality.(e) Confidential Information. “Confidential Information” means all non-public, proprietary, business, technical, disclosed, or learned information, not generally or publicly known, that you or ItracMarketer (“receiving party”) obtain from the other party (“disclosing party”). Confidential Information may be in verbal, visual, or in writing, and includes information that was identified as confidential at the time the information was disclosed, or that a person would reasonably believe to be confidential given the circumstances of the disclosure. Confidential Information also captures anything that is learned, discovered, developed, conceived, originated, or prepared by the receiving party in connection with these Terms.
(f) Use and Disclosure of Confidential Information. The receiving party will not disclose, reproduce, distribute, or transmit the disclosing party’s Confidential Information to any third party, either during or after the Term, except in the following situations:
- a receiving party may use the disclosing party’s Confidential Information in order to use or provide the Site or Services under these Terms;
- a receiving party may disclose Confidential Information to its employees, directors, affiliates, advisors, agents, contractors (including subcontractors), and other representatives (“Delegates”) who need to know such information for the purpose of providing or receiving the Services, provided that the receiving party requires the Delegate to agree to confidentiality obligations that are substantially as protective as what is set out in this Section 23. The receiving party will be responsible for its Delegates’ violation of this Section 23; and
- the receiving party may disclose Confidential Information where required by a court order, administrative agency, or other governmental body, provided that the receiving party limits the disclosure to the specific information that is required. The receiving party will use reasonable efforts to give the disclosing party prior notice of the court order and cooperate with any attempts by the disclosing party to obtain a protective order over its Confidential Information.
(g) Exclusions. A party’s obligations of confidence with respect to Confidential Information does not apply to: (i) information that was generally known to the public at the time disclosed to the receiving party; (ii) information that becomes generally known to the public (other than through a breach of this Section 23 by the receiving party); (iii) information that was in the receiving party’s possession free of any obligation of confidentiality prior to disclosure by the disclosing party; (iv) information that is rightfully received by the receiving party from a third party without any restriction on disclosure; or (v) information that was independently developed by the receiving party without reference to or use of disclosing party’s Confidential Information.
(h) Safeguards and Breach. We will use reasonable industry standard security measures to protect your Confidential Information and will have security policies in place to do so. In the event that we become aware that your Confidential Information has been subject to unauthorized access, use, copying, theft, loss, or use or disclosure (a “Breach”), we will notify you and inform you of what took place. In the event that you become aware of a Breach in relation to your account, you will notify us and inform us of what took place. You agree that Breaches will be handled in accordance with applicable law, and if we need you to inform members of your Email distribution lists then you will agree to do so promptly and as we direct. Notwithstanding the foregoing, you are fully responsible and liable for meeting any notification requirements under privacy laws applicable to you.
- The Services and this Site are provided “as is” without any representations, warranties, or conditions of any kind, and ItracMarketer expressly disclaims, to the full extent permissible by applicable laws, all representations, warranties, and conditions, express or implied, by operation of law or otherwise, including without limitation any implied warranties and conditions of merchantability, or fitness for any particular purpose or use, or non-infringement of third party rights, or those arising out of course of performance, course of dealing or usage of trade with respect to this Site (including the ItracMarketer Content) or the Services.We do not warrant that this Site will (i) meet your requirements, (ii) be compatible with your computer or mobile device or any related equipment, (iii) be reliable, accurate, authentic, current or complete, (iv) continue to operate, (v) operate or be available without interruptions, or (vi) be error-free or free of computer viruses. ItracMarketer may, but has no obligation to, maintain the Site and perform upgrades, fixes or patches on or to the Site at any time without notice. Information provided through our Site including, without limitation, support responses, advice and recommendations from our consultants or any other communications directly or indirectly from ItracMarketer does NOT constitute legal advice. You understand that your Emails may be transferred unencrypted and involve transmissions over various networks not under the control of ItracMarketer, and changes may be made to conform and adapt to technical requirements of connecting networks or devices. ItracMarketer does not warrant that Emails will be sent or received properly or in a timely manner by the recipients and you acknowledge that data transmissions over the Internet are susceptible to possible loss, misrouting, interception, and misuse of the information being communicated or transmitted.
- LIMITATION OF LIABILITY. ItracMarketer’s aggregate liability under these Terms, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability or under any other theory of liability whatsoever, will be limited to direct damages in an amount not exceeding the total fees paid to ItracMarketer under these Terms in the twelve (12) months immediately prior to the month in which the most recent event giving rise to liability occurred.None of ItracMarketer, its affiliates or their respective directors, officers, employees, agents or other representatives (collectively “ItracMarketer Representatives”) or the operators of any attached networks will have any responsibility or liability in connection with this Site or the Services for: (i) any indirect, consequential, incidental, exemplary, punitive or special damages; or (ii) for any damages, whether direct, indirect, consequential, incidental, exemplary, punitive or special, characterized as lost revenue, lost savings or revenue or lost profits, whether based on contract (including fundamental breach or breach of a fundamental term), tort (including negligence) or other legal or equitable basis, including without limitation damages for harm to business, loss of information or data, loss of goodwill or other economic loss, arising from or in connection with or relating to your use of or access to, or any inconvenience, delay or loss of use of or access to, this Site, the ItracMarketer Content, the Services or any content of any linked web site, or failure of those linked web sites, even if ItracMarketer or any ItracMarketer Representatives have been made aware of the possibility of such damages or loss or if such damage or loss was foreseeable.
- (a) Your Indemnification Obligations. You will indemnify and hold ItracMarketer and/or the ItracMarketer Representatives (the “ItracMarketerindemnified parties“) harmless from and against any claims brought by third parties, and any fines or penalties awarded against the ItracMarketer indemnified parties, arising out of: (i) your use of the information accessed from this Site or your use of the Services, (ii) any breach of these Terms, including but not limited to any use of the ItracMarketer Content or postings other than as expressly authorized in these Terms, (iii) any Emails or other communications sent through the Services, (iv) your violation of any applicable laws, including CASL, or the rights of a third party; or (v) Your Content that you post or otherwise submit on, through, or in the Site.
- (b) Our Indemnification Obligations. ItracMarketer shall defend, indemnify and hold you harmless from and against any and all claims, demands, actions, suits or proceedings made or brought against you by a third party alleging that your access to or use of the Services in accordance with these Terms infringes the intellectual property rights under Canadian law of a third party (an “IP Infringement Claim”), provided that ItracMarketer shall have sole control over the defense or settlement of any such IP Infringement Claim. If the use of the Services or any portion thereof is, or in ItracMarketer’s opinion is likely to be, enjoined by reason of such an infringement, ItracMarketer shall: (i) procure at its own expense the right for you to continue using the Services or impacted portion thereof, or (ii) modify or replace the enjoined items with equivalent items so they become non-infringing without adversely altering their functionality, or (iii) if neither of (i) or (ii) is reasonably available, ItracMarketer shall refund the amount paid by you for the infringing Services or portion thereof.
- (c) Notification. Each party agrees to notify the other party promptly in writing of any claim that is subject to an indemnification obligation and to cooperate with the other party by providing such information and assistance as is reasonably necessary and appropriate for the handling of the defense of such claim.
- (d) Survival. The indemnities under this Section 26 survive termination or expiry of these Terms and are your exclusive remedy with respect to IP Infringement Claims.
- Equitable Relief. If you violate these Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief. You agree that this will be in addition to and without prejudice to any other rights we may have at law or in equity. Notwithstanding the foregoing, this section does not apply where its application is prohibited by any applicable laws.
- Links to Other Web Sites. If we provide any links to third party web sites, they are provided only for convenience. If you use these links, you will leave our Site. We do not control these third party sites or endorse them. You agree that we are not responsible for any of these third party sites or their content. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. Additionally, we have no responsibility and make no claims about the appropriateness of the web site content of these external links for minors.
- Third Party Requests. If we have to provide information in response to a legal or government request relating to your account or your use of the Services, then you agree that we may charge you for our costs. These fees may include our legal fees and the costs of our employee time spent preparing the response to the request.
- Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without ItracMarketer’s express written consent, but may be assigned by ItracMarketer without restriction, upon reasonable advanced notice to you.
- Governing Law. These Terms will be governed by and construed in accordance with all applicable federal laws of Canada and the laws of Ontario without regard to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the courts of Ontario for the determination of any dispute concerning these Terms.
- Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof to be unlawful or for any reason unenforceable, then that provision will be enforced to the maximum extent permissible to give effect to the intent of these Terms, and the remainder of these Terms will continue in full force and effect and will remain enforceable.
- Waiver. Any waiver of, or consent to depart from, the requirements of these Terms will be effective only if it is in writing and signed by us, and only in the specific instance and for the specific purpose for which it has been given. Our failure to exercise or our delay in exercising, any right under these Terms will not operate as a waiver of our rights.
- Further Assurances. Each party agrees to sign and provide all documents and take any actions (or cause the doing of those actions) necessary to meet its obligations under these Terms.
- Notices. All notices to ItracMarketer must be in writing and sent to us by email (“Notice”). Notices to us must be sent to the attention of our customer service representatives at [email protected]. Notices to you may be sent to the address or email address supplied by you as part of your registration. In addition, we may broadcast notices or messages through this Site to inform you of changes to this Site or other matters of importance, and these broadcasts will constitute Notice to you at the time we post them. If we receive a Notice after 5:00 pm EST or on a non-business day, that Notice will be deemed to have been received on the next business day.
- Survival. All provisions of these Terms which by their nature or import are intended to survive expiration or termination of these Terms, shall survive, including, without limitation, Sections 19, 20, and 24-38.