Effective Date: 2019-01-29
These terms of services (the “General Terms”) govern the use of, and the subscription to, the ebCard Platform and ebCard mobile application provided by ebCard Inc. (“ebCard”). By accessing the ebCard Platform and/or the ebCard mobile application, you agree to the General Terms on behalf of yourself as a user and, as the case may be, on behalf of the organisation that you represent (“Customer”).
ebCard is an intelligent contact data management platform designed to help marketing and sales professionals automatically capture new business contacts, clean, update and manage the existing contact database.
DEFINITIONS AND INTERPRETATION
The following capitalized terms shall have the meaning ascribed to them below:
- “Customer Data” means any content, which may include personal information and/or personal data, that Customer or Users submit or transfer to ebCard in conjunction with the Services, such as business card information, email, message, file, work, software, music, recording, picture, graph, data, registered information and other information;
- “ebCard Platform” means the web contact management platform including the ebCard mobile application and the contact data verification tools commercialized by ebCard as “ebCard” and accessed by Users;
- “Data Subject” means a natural person whose personal data is handled by ebCard or Customer;
- “Parties” means ebCard and Customer;
- “Personal Data” means information relating to an identifiable natural person;
- “Users” means you and any individual to whom Customer provides access to the ebCard Platform, including any account administrators, company manager, salesperson and ebCard mobile application user;
- "Maximum Contacts" means the maximum number of Contacts you are permitted to use with the Service Fees as identified in your Order Form.
- "Subscription Term" means the initial term of Customer subscription to the applicable Service, as specified on Customer Order Form(s), and each subsequent renewal term (if any).
- "Services" means all of ebCard tools and platforms that Customer subscribed to by an Order Form or that ebCard otherwise makes available to Customer, and are developed, operated, and maintained by ebCard.
The term “including” is not limiting and means “including, without limitation”.
ACCESS AND USE OF THE EBCARD PLATFORM
Access. During the Subscription Term, ebCard grants to Customer and its Users the right to access and use the ebCard Platform, and any related Services, in accordance with the General Terms (the “Services”).
Grant of Rights. Upon registration and subject to the payment of any applicable fees, ebCard grants to Customer and its Users a limited, revocable, non-transferable, non-exclusive right to access and use the Services.
Limitations to the Services. Customer acknowledges and agrees that ebCard does not control the Customer Data and does not guarantee the accuracy, integrity or quality of such Customer Data. Customer is solely responsible for evaluating the accuracy, reliability, completeness and usefulness of any information obtained through use of the ebCard Platform and for making and implementing decisions based on such information and dealing with any related consequences. Customer further acknowledges and agrees that ebCard assumes no liability for any Customer Data handled by Customer through the ebCard Platform.
Services Revisions. ebCard may update the content, features and functions of the ebCard Platform at any time without notice. ebCard will provide Customer with prior notice if there is a change to the ebCard Platform resulting in overall material decrease in functionality of the ebCard Platform. In such cases, Customer may terminate its subscription in accordance with Section 8.2(i) (ebCard).
Temporary Suspension of the Services. ebCard may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, the ebCard Platform.
Unacceptable Use. Customer shall not, nor attempt to, nor permit third parties to: (a) share non-public features or content of the ebCard Platform with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the ebCard Platform. For clarity purposes, Customer shall not access the ebCard Platform in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of the ebCard Platform. In the event that it suspects any breach of this Section, ebCard may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as ebCard may have.
Account Security and Access. Customer shall take reasonable steps to prevent unauthorized access to the ebCard Platform, including by protecting its passwords and other login information. Customer is responsible for any activity occurring in its account (other than activity that ebCard is directly responsible for and is not performed in accordance with Customer’s instructions), whether or not Customer authorized that activity. Customer shall immediately notify ebCard if it becomes aware of any unauthorized access to, or use of, its account.
Customer Systems. Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that its Users use to access and use the Services. Customer acknowledges that the Services may not work properly if its operating systems, Internet browsers and anti-virus software are not up-to-date.
Unacceptable Conduct of Users. To help ensure a safe and productive use of the ebCard Platform, Customer shall ensure that Users do not have inappropriate conduct including (i) attempting to reveal the identity of a User, (ii) impersonating any other person or entity or (iii) allowing the submission of any Customer Data that is (or using the Customer Data in a way that is) illegal, harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, offensive, indecent, hateful, or racially, ethically or otherwise objectionable. It is Customer’s responsibility to monitor and control all activity conducted by Users on the ebCard Platform. ebCard is under no obligation to review how Users are using the ebCard Platform (including how users capture contact data through the ebCard mobile application or tools).
EBCARD ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE CONDUCT BY THE USERS OR FOR ANY CONTENT UPLOADED BY THE USERS IN THE EBCARD PLATFORM.
Indemnification by Customer. Customer shall defend, indemnify and hold harmless ebCard against any claim, suit or proceeding arising out of, or related to (a) Customer Data; (b) the breach of any warranty, covenant or other obligation contained in these General Terms by Customer or any User or (c) Customer’s or any User's alleged or actual use of, misuse or inappropriate use of or failure to use the Services, including any Customer’s or User’s use in violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users).
Compliance by Users. Customer must ensure that its Users comply with all applicable laws, including laws governing the protection of personal information, and that such Users are governed by, and comply with, the General Terms.
SERVICE FEES OF THE EBCARD PLATFORM AND BILLING
Service Fees. In consideration for the Services, Customer shall pay ebCard the fees specified on the Website for the subscription term (annual) selected by Customer, unless other payment terms have been agreed to in writing between Customer and ebCard (the “Service Fees”). Customer agrees that its subscription be automatically renewed at the Renewal Date, unless it cancels its subscription before the Renewal Date in accordance with Section 8.2(i). Customer is responsible for canceling its subscription in accordance with Section 8.2(i) regardless of whether it receives any renewal prior notice from ebCard. For the purpose of the General Terms, a “Renewal Date” is the first day following the expiration of a subscription term. The Service Fees will remain fixed during the Subscription Term unless Customer: (i) upgrades its contact verification package or base packages, or (iii) subscribes to additional Contact volumes.
Service Fees Adjustments in Next Billing Period. ebCard determines the Contact tier for the next Billing Period by reviewing the number of Contacts in Customer database. If the number of Contacts in Customer Database exceeds its Maximum Contacts when ebCard completes this review, then Customer Service Fees will increase at the beginning of the next Billing Period up to the tier price which corresponds with the reviewed number of Contacts. Tier prices are as set forth on ebCard Pricing Page.
Payment by credit card. If Customer is paying by credit card, he authorizes ebCard to charge Customer credit card or bank account for all fees payable during the Service Fees Term. Customer further authorizes ebCard to use a third party to process payments, and consent to the disclosure of its payment information to such third party.
Payment against invoice. If Customer is paying by invoice, ebCard will invoice Customer no more than forty-five (45) days before the beginning of the Service Fees Term and each subsequent Billing Period, and other times during the Service Fees Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
Revised Service Fees. ebCard reserves the right to revise the Service Fees applicable to any future subscription term in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next subscription term further to a prior notice from ebCard to Customer.
No Refunds. Payments are non-refundable and there are no refunds or credits for partially used periods.
Free trial. If Customer registers for a free trial for the Services, ebCard will make such Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period applicable to Customer; (b) the start date of any subscription purchased by Customer for such Services; or (c) termination of the trial by ebCard in its sole discretion.
Third Party Payment Processor. ebCard reserves the right to use a third-party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.
Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against ebCard based on its income. ebCard will invoice Customer for such Taxes if ebCard believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
Availability. ebCard does not warrant the availability of Customer Data on the ebCard Platform which is not meant as a backup service. Customer is responsible to keep backup copies of any Customer Data uploaded to the ebCard Platform and shall not rely on ebCard as the sole source for Customer Data.
Data Subject Request. ebCard will take reasonable steps to inform Customer if it receives a request from a data subject with respect to Customer Data. ebCard will not itself respond to data subjects’ requests unless obligated by law.
Data Breach. ebCard will take reasonable steps to inform Customer within a reasonable delay if ebCard is made aware of any unauthorized access to personal data. ebCard will reasonably cooperate with Customer to investigate and remediate any such unauthorized access.
Sub processors. ebCard may appoint sub processors for personal data in accordance with paragraph 4.3 hereof.
Personnel. ebCard will ensure that its personnel are bound by confidentiality obligation with respect to Customer Data and in particular with respect to personal data.
Return of Deletion of Personal Data. Upon written request, ebCard will permanently delete personal data that is processed on behalf of Customer. ebCard will ensure that any sub processor appointed in accordance with this agreement keeps no copy of such personal data.
Confidential Information. “Confidential Information” means any non-public, confidential and sensitive information, including Customer Data, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and excludes any information that is:
- subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
- known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
- subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality.
Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that ebCard may disclose Confidential Information to its third party services providers in connection with the performance or the improvement of the Services, in which case ebCard will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
Warranty Disclaimers. EBCARD DOES NOT WARRANT THAT THE EBCARD PLATFORM WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE AND ERROR FREE. CUSTOMER ACCEPTS THAT THE EBCARD PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. EBCARD MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
Exclusion. IN NO EVENT SHALL EBCARD BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR DAMAGES RESULTING FROM INTENTIONAL OR GROSS FAULT BY EBCARD.
Consultant. Should Customer hire a consultant to perform services relating to the implementation and the use of the ebCard Platform, ebCard shall have no responsibility in relation to such services.
INTELLECTUAL PROPERTY AND FEEDBACK
No Rights granted. ebCard retains all right, title, and interest in and to the ebCard Platform and the content Customer accesses through the ebCard Platform and ebCard mobile application, other than Customer Data. These General Terms do not grant Customer any intellectual property rights in or to the ebCard Platform or in ebCard’s logos and other trademarks.
Feedback. Any feedback or suggestions sent by Customer or shared by Customer with ebCard to improve the ebCard Platform or the Website may be implemented by ebCard. In such case, Customer grants ebCard an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.
Term and Renewal. Customer initial subscription period will be specified in Customer Order, and subscription will automatically renew for one year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Termination’ section below. The renewal pricing set forth in Customer Order will apply, subject to adjustment as specified in the ‘Service fees of the ebCard platform and billing’ section above. If renewal pricing is not included in Customer Order, then ebCard standard pricing available on the website on the date of renewal will apply.
Termination. The agreement between ebCard and Customer may be terminated:
- by Customer at any time if it cancels the Services through its ebCard account or with an ebCard customer representative;
- by ebCard at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after ebCard provides notice of the breach. For clarity purposes, any violation of Section 2.6(Unacceptable Use) and 2.9(Unacceptable Conduct of Users) by Customer shall be deemed a material breach of these General Terms;
- by ebCard if Customer fails to make any payment of the Service Fees; or
- by ebCard for convenience with a thirty ninety (90) days prior notice for an annual subscription.
No Refund in the Event of Termination. Section 3.6 (No Refunds) applies, regardless of the cause of termination.
Retrieval of Customer Data. As long as Customer paid all fees owed to ebCard, if Customer makes a written request within thirty (30) days after termination or expiration of its subscription, ebCard will provide Customer with temporary access to the Subscription Service to retrieve its contact data, or ebCard will provide Customer with copies of, all Customer Data then in ebCard possession or control. If ebCard provides Customer with temporary access to the portal, ebCard may charge a re-activation fee. ebCard may withhold access to Customer Data until Customer pays any fees owed to ebCard. Thirty (30) days after termination or expiration of Customer Subscription, ebCard will have no obligation to maintain or provide the Customer Data and may, unless legally prohibited, delete all Customer Data in ebCard systems or otherwise in its control. ebCard will permanently delete personal data when instructed by Customer unless it is required by law to preserve such data.
Survival. Sections 2.6 (Unacceptable Use), 2.9 (Unacceptable Conduct of Users), 2.10 (Indemnification by Customer), 4 (Data) 5 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (IP & Feedback) and 8 (Term) and 9 (General) shall survive termination of these General Terms.
Publicity. Customer grants ebCard the right to use Customer’s company name and logo as a reference for marketing or promotional purposes. If Customer wishes to limit such right, it shall send an email to firstname.lastname@example.org.
Choice of Law, Jurisdiction and Venue. These General Terms shall be governed solely by the laws of the Canadian province of Quebec, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties agree that any litigation in any way relating to these General Terms shall be brought and heard exclusively in the judicial district of Montreal in the Canadian province of Quebec and waives any objection that such venue is inconvenient or improper.
Specific Performance. Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
Force Majeure. Except as expressly provided otherwise in these General Terms, ebCard shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics (a “Force Majeure”), which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, act of God, war, terrorism and governmental action.
Time is of the Essence. Time is of the essence of these General Terms and of every part thereof.
No Other Agreements. These General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto.
Notices. ebCard may send notices pursuant to these General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to these General Terms to ebCard at email@example.com. Notices shall be deemed received 24 hours after they are sent.
Assignment & Successors. These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these General Terms shall continue in full force and effect.
Technology Export. Customer shall not export any software provided by ebCard or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Website or the ebCard Platform in or export such software to, a country subject to an embargo by Canada or the United States.
Amendments. ebCard reserves the right to amend these General Terms from time to time with reasonable notice prior to the effective date of the amendments by posting an amended version of the General Terms on its website and by sending a notice by email if you have provided your email address. Customer’s continued use of the Services following the effective date of any such amendments may be relied upon by ebCard as Customer’s consent to any such amendments.
- Definitions and Interpretation
- Access and Use of The Ebcard Platform
- Service Fees of The Ebcard Platform and Billing
- Warranty Disclaimers
- Limitation of Liability
- Intellectual Property and Feedback