Because Marketing, inc. (herein referred to as “because”, “we”, “us” and/or “our”) provides a software-as-a-service Shopify integrated platform for any business to use to optimize its ecommerce websites and offers a variety of services in connection with the platform, including content creation and site visitor targeting (the “Because Service” or “Service”, or “Services”).
The Because Service
Provision of Services. Because will make the Because Service available to Customer pursuant to the Agreement. Subject to the terms and conditions of this Agreement, Because hereby grants Customer a non-exclusive right to access and use the Because Service solely for its internal business purposes. Because retains the right to change, modify, disable, or otherwise terminate access to the Because Service at any time for any reason or no reason.
Limitations: The Because Service will be used or accessed only by an authorized representative of Customer. As a condition of your use of and access to the Because Service, you agree to comply with any application-, tool-, or content-specific rules published within the Because Service, which Because may modify or supplement in its discretion from time to time (with notice to you of material changes).
Customer Responsibilities. Customer will (a) be responsible for its compliance with this Agreement and use of the Because Service; (b) be solely responsible for the accuracy, quality, integrity and legality of the Customer Materials (as defined below); (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Because Service, it’s source code, and associated documentation (the “Documentation”) and notify Because promptly of any such unauthorized access or use; and (d) use the Because Service only in accordance with the Agreement, the Documentation and applicable laws and regulations. Without limitation of the foregoing, Customer represents, warrants and covenants that: it has (and will have) the right to provide any information about an identified or identifiable natural person, household of device to Because and will provide such information to Because in compliance with applicable laws and that all such information has been (and will have been) obtained in compliance with all applicable laws and that all such information shall be true, accurate, complete and correct and correspond to the natural person to which it purports to relate, including to any natural person intended to be contacted in connection with the Because Service (if any); and it has (and will at all times have) provided any notice and obtained any consents necessary to enable Because to lawfully provide the Because Service to Customer, including without limitation (if applicable) obtaining any consent from natural persons required by applicable law for Because to send email and/or text messages on Customer’s behalf to natural persons.
Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) copy, modify, de-compile, reverse engineer, or otherwise attempt to derive the source code, algorithms, or architecture underlying the Services; (c) use the Services to provide services to third parties (e.g., as a service bureau); (d) use the Services for any benchmarking activity or in connection with the development of any competitive product; nor (e) circumvent or disable any security or other technological features or measures of the Services.
Fees & Payments
Fees Generally. In consideration for the Services, Customer will immediately pay to Because the then-current fees set forth in the “Pricing” section of Customer’s account in the Services unless otherwise set forth in an applicable Service Order or Order Form (“Fees”). Because shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full. In the event of a temporary suspension of Customer’s access to the Services, applicable Fees will continue to accrue.
Fee Increases. Because will provide Customer fourteen (14) days advance notice for any increase in fees. Any increases to the Fees shall apply at the beginning of the Customer’s following Term. Customer’s continued use of the Services after a Fee increase will constitute Customer’s agreement to the increase in Fees.
Billing, Invoicing, and Payment Terms. Because will charge Customer the Fees for the Services in advance for each billing period on or after the first day of such billing period. All Fees for Services are due in advance of use of Services and payable in US Dollars and are non-refundable. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes Because to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, Because will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives Because permission to submit the credit card charge with a later expiration date. If Because fails to resolve an issue with Customer resulting from a credit card decline or expiration, Because may terminate the account due to non-payment. Customer agrees to notify Because of all billing disputes within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived. Late payments, including those resulting from credit card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Because must initiate a collections process to recover Fees due and payable hereunder, then Because shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event Because delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due upon receipt, unless otherwise set forth in the Service Order.
Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Because’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees and the delivery of the Services. To the extent that Because charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by Customer. Such amounts are in addition to the Fees and will be billed to Customer’s authorized payment method. If Customer is exempt from payment of any such taxes, Customer must provide Because with evidence of exemption. If Customer is not charged any of the aforementioned taxes by Because, Customer is responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Customer’s jurisdiction. Customer will make all payments of Fees to Because free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Because will be Customer’s sole responsibility, and Customer will provide Because with official receipts issued by the appropriate taxing authority, or such other evidence as Because may reasonably request, to establish that such taxes have been paid. Customer shall indemnify, defend, and hold Because harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
Refunds. Because does not provide partial refunds for unused monthly or annual plans, unless a system malfunction caused a problem.
Ownership & Confidentiality
Because’s Ownership Rights. Because exclusively owns all right, title and interest in and to the Because Service and Documentation, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein and thereto. In the event Customer gains access to source code for the Because Service Customer agrees not to use, copy, modify, distribute, or create derivative works based on the source code, except as expressly permitted in writing by Because. Customer shall maintain the source code in confidence and shall not disclose the source code or any portion thereof to any third party without the prior written consent of Because. Except for the express access right granted hereunder, Because reserves all rights, title and interests in and to the Because Service, Documentation and Because’s confidential information.
Feedback. Customer may from time to time provide blog statements, suggestions, comments for enhancements or functionality or other feedback (collectively, “Customer Feedback”) to Because with respect to the Because Service. Because will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Because a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Customer Feedback; and (b) use the Customer Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Customer Feedback and/or any subject matter of the Customer Feedback.
Public Areas. The Because Service may feature community areas and other public forums, including but not limited to a blog (the "Public Areas"). If you use a Public Area you are solely responsible for your own Customer Feedback, the consequences of posting your Customer Feedback, and your reliance on any information in the Public Areas or other areas of the Because Service. If you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. Any information you share, including without limitation any discussions with others, in any online Public Area is by design open to the public and is not private. Because reserves the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas of the Because Service. Because shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Because Service or any submissions by you or other users. As with any public forum on any website, the information you post may show up in third-party search engine results.
Use of marks and case studies: Because may, at its sole discretion, reference the Customer as a user of the Because Service in Because marketing collateral, including website content, blog content, email messages, and more.
Representations, Warranties, & Exclusions
Customer represents, warrants and covenants to Because as follows: (a) it has full power and authority to enter into and perform this Agreement; (b) this Agreement has been duly authorized and constitutes a binding obligation enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally; (c) the person(s) executing this Agreement on Customer’s behalf has actual authority to bind Customer to this Agreement; and (d) Customer’s execution and performance of this Agreement does not and will not violate or conflict with any provision of Customer’s governing corporate instruments or of any commitment, agreement or understanding that such party has or will have to or with any person or entity.
Except as expressly set forth herein, Because makes no, and disclaims any and all, warranties, express or implied, including, but not limited to implied warranties of merchantability, title, non-infringement and fitness for a particular purpose. Because does not guarantee that the Because Service will meet all of customer’s requirements. Customer represents and acknowledges that Because does not warrant that the Because Service will operate at all times in an uninterrupted or error free fashion, and Because disclaims any and all liability resulting from or related to any such interruption or error.
Customer will defend Because against any claim made or brought against Because by a third party (a “Claim”) arising out of Customer’s use of the Because Service and will indemnify Because for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Because in connection with any such Claim; provided that (a) Because will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Because’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Because of all liability) and (c) Because reasonably cooperates with Customer in connection therewith.
Limitation of Liability
Under no circumstances and under no legal theory, whether in tort, contract or otherwise, will Because be liable to customer for any indirect, special, incidental, consequential or punitive damages of any character, including, without limitation, damages for loss of goodwill, lost profits, lost sales or business, work stoppage, computer failure or malfunction, lost data or for any and all other damages or losses, even if a Because has been advised, knew or should have known of the possibility of such damages. In no event will Because be liable for any direct damages, costs or liabilities in excess of the amounts paid or payable by customer during the twelve months preceding the incident or claim. The provisions of this section allocate the risks under this agreement between the parties, and the parties have relied on the limitations set forth herein in determining whether to enter into this agreement.
Term. The term of this Agreement will commence upon Customer’s sign up and acceptance of this Agreement. Thereafter, the term of this Agreement will automatically continue provided, however, that Because may terminate this Agreement and the availability of the Because Service to Customer at any time without notice. If Customer desires to discontinue the Because Service, Customer may downgrade on the Pricing page in Service and or uninstall and discontinue the Because Service at Customer’s own expense.
Right to Suspend. Because may temporarily suspend Customer’s or any of Customer’s end users’ access to any portion of the Because Service if Because reasonably determines that: (a) there is a threat or attack on the Because Service or other event that may create a risk to the Because Service, Customer or any other customer of Because; (b) Customer’s use of the Because Service or any Customer Materials disrupts or poses a security risk to the Because Service or any other Because customer; or (c) Customer is using the Because Service in violation of the Agreement, including but not limited to, using the Because Service for fraudulent or illegal activities (collectively, “Service Suspensions”). Because will provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of Because Service following any Service Suspension. Because will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Service Suspension.
Data Processing Addendum. The terms of the Data Processing Addendum shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Because solely on behalf of Customer, if any; and (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Because solely on behalf of Customer, if any.
Copyright Policy; Objectionable Content: If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Because Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, the following policy will apply:
It is Because’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any of the content or materials appearing on the Because Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Because will also terminate a user's account if a user is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should direct your infringement claim (or other complaints), is:
Attention: Ashland Stansbury
Because Marketing, Inc
Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision will be deemed not to be a part of this Agreement.
Governing Law. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Florida without regard to its rules of conflict of laws. Each of the parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Florida and of the United States of America located in Florida for any litigation among the parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Florida Courts and agrees not to plead or claim in any Florida Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Florida Courts.
Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed facsimile or e-mail; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.
Titles. All article and section titles herein are provided for general information and reference only. Thus, the subject matter in each section herein will not be construed by reference to the title nor will the scope of section be limited in any manner based on the title of that section.
Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”); provided that, (a) the party relying upon this Section 7.11 will have given the other party written notice thereof promptly and, in any event, as soon as reasonably possible under the circumstances; and (b) will take all steps reasonably necessary to mitigate the effects on the other party of the Force Majeure Event upon which such notice is based.