User License Agreement
BY CLICKING “I HAVE READ AND AGREE TO THE TERMS OF THE USER LICENSE AGREEMENT” OR USING THE SERVICE, SUBSCRIBER (A) ACKNOWLEDGES THAT SUBSCRIBER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS THAT SUBSCRIBER IS 18 YEARS OF AGE OR OLDER; AND (C) REPRESENTS THAT THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF SUBSCRIBER, ENFORCEABLE AGAINST SUBSCRIBER IN ACCORDANCE WITH ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE.
Capitalized terms used herein shall have the meanings set forth below:
1.1 “Administrator” shall mean a Subscriber with authority to designate additional Authorized Users and/or Administrators.
1.3 “Authorized User” shall mean an individual Subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
1.4 “Content” shall mean any information Subscriber uploads or posts to the Service and any information provided by Subscriber to Margin Driver in connection with the Service, including, without limitation, information about the Authorized Users.
1.5 “Service” shall mean any software or services provided by Margin Driver.
1.6 “Subscriber” shall refer to the purchaser of the Services provided by Margin Driver and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on Subscriber’s behalf.
1.7 “Security Emergency” shall mean a violation by Subscriber of this Agreement that (A) could disrupt (1) Margin Driver’s provision of the Service; (2) the business of other subscribers to the Service; or (3) the network or servers used to provide the Service; or (B) provides unauthorized third-party access to the Service.
- Limited License
2.1 Subject to the terms of this Agreement and payment of the applicable monthly subscription fee to Margin Driver, Margin Driver grants Subscriber a non-exclusive, non-transferable, limited license to access and use the Service.
2.2 Subscriber acknowledges and agrees that the Service is provided under license, and not sold, to Subscriber. Subscriber does not acquire any ownership interest in the Service under this Agreement, or any other rights thereto other than to use the Service in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Margin Driver reserves and shall retain its entire right, title and interest in and to the Service, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to Subscriber in this Agreement.
2.3 Margin Driver reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Service or any feature associated with the Service, with or without notice, and will endeavor to provide Subscriber with 10 days’ notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
2.4 Margin Driver reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide two days’ notice prior to any such suspension. Such notice shall be provided to Subscriber by way of notification within the Service, email or other notification method deemed appropriate by Margin Driver. In the event of a temporary suspension, Margin Driver will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
- License Restrictions
3.1 Authorized Users agree not to upload or post any Content to the Service that constitutes “personally identifiable information” or “personal data” as defined under applicable law, rule or regulation, that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context. Margin Driver does not review or pre-screen the Content.
3.2 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Margin Driver.
3.3 Authorized Users agree not to modify, reverse engineer, disassemble, decompile, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Margin Driver, or any other software or service provided by Margin Driver.
3.4 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
3.5 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
- Access to and Use of the Service
4.1 Before accessing or using the Service, Authorized Users are required to provide their full legal name, legal business name and address, a valid email address, phone number, valid credit card information for monthly subscription charges and any other information reasonably requested by the Service.
4.2 Each Authorized User will be provided with a unique identifier (“Username”) to access and use the Service. The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
4.3 The initial Administrator shall be the originating Subscriber with authority to administer the subscription and designate four (4) additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrators. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
4.4 Administrators are responsible for all use of the Service by Authorized Users associated with their subscription to the Service.
4.5 Administrator shall provide Margin Driver with API access to Subscriber’s source systems to retrieve Subscriber’s data and provide the Service. Specifically, Margin Driver will need access to the following Subscriber accounts: (1) order management software (e.g., ChannelAdvisor), (2) shipping software (e.g., ShipStation, ShipWorks, etc.), (3) all Amazon Seller Central accounts, and (4) accounting software (e.g., Quickbooks, Xero, etc.).
4.6 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
4.7 Subscriber acknowledges and agrees that Margin Driver may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
4.8 Margin Driver may provide the ability to integrate the Service with third party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Subscriber agrees that Margin Driver has no liability arising from Subscriber’s use of any integrations or arising from the third-party products and services. Margin Driver can modify or cancel the integrations at any time without notice.
4.9 As between Margin Driver and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber.
4.10 Subscriber grants to Margin Driver a non-exclusive, royalty free right and license during Subscriber’s use of the Service, to use the Content for the purpose of providing the Service and performing Margin Driver’s obligations under the Agreement. Upon Subscriber’s consent via Margin Driver’s opt-in procedure, such rights shall also include permission for Margin Driver to generate and publish aggregate, anonymized reports on system usage and Content trends and type. Subscriber shall, during such opt-in period, have access to the aggregate, anonymized reports.
4.11 Technical support and training for the Service are available to Authorized Users with active subscriptions, in accordance with the service level agreement set forth at https://margindriver.com/sla/ which may change from time to time, and is incorporated herein by reference.
- Protection of Proprietary Information
5.1 In order to protect the rights of Margin Driver in its proprietary information, Subscriber agrees to take all steps necessary to maintain the confidentiality, secrecy, and proprietary nature of the Service. Subscriber shall not, without Margin Driver’s prior written consent, disclose, provide, or make available any of the Proprietary Information in any form to any person, except to its bona fide employees whose access is necessary to use the Service and who are designated as Authorized Users. For the purposes of this Agreement, “Proprietary Information” means the Service and any other information identified or reasonably identifiable as confidential and proprietary information of Margin Driver, excluding any information which: (a) is or becomes publicly available through no act or failure of Subscriber; (b) was or is rightfully acquired by Subscriber from a source other than Margin Driver prior to receipt from Margin Driver; or (c) is disclosed by Subscriber in response to a valid court order; provided that Subscriber takes reasonable measures to assure confidential treatment of such information to the maximum extent possible, and notifies Margin Driver regarding the court order as soon as possible so that Margin Driver may seek a protective order.
- Security and Access
6.1 Subscriber will be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of Content provided to the Service.
6.2 Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords, and will promptly notify Margin Driver upon suspicion that a Username or password has been lost, stolen, compromised, or misused.
6.3 Subscriber shall report to Margin Driver, with all relevant details, any event that Margin Driver reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content or the Service (a “Security Breach”). Subscriber shall make such report within 72 hours after learning of the Security Breach.
6.4 In the event of a Security Breach, Subscriber shall (a) cooperate with Margin Driver to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Margin Driver in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Margin Driver in any litigation or investigation against third parties that Margin Driver undertakes to protect the security and integrity of the Service; and (d) use commercially reasonable efforts to mitigate any harmful effect of the Security Breach.
- Payment, Refunds and Subscription Changes
7.1 Margin Driver offers Subscribers a free 60-day trial subscription to the Service for evaluation purposes. Margin Driver will notify Subscriber prior to the expiration of the free trial to determine if Subscriber wishes to continue with a paid subscription. If Subscriber wishes to continue with a paid subscription, Subscriber will provide Margin Driver with valid credit card details in order to maintain access to the Service. If Subscriber does not wish to continue with a paid subscription, Subscriber’s access to the Service will be terminated upon expiration of the 60-day free trial period.
7.2 After the 60-day free trial period, Subscribers will commence paying a monthly subscription fee according to the number of orders they loaded to the Service during the previous month. The monthly payment level will be determined according to the following schedule:
|Number of Orders||Monthly Charge||Price Per|
|1 – 3,000||$49||$0|
|3,001 – 4,500||$99||$0|
|4,501 – 6,000||$149||$0|
|6,001 – 7,500||$199||$0|
|7,501 – 9,000||$249||$0|
|9,001 – 10,500||$299||$0|
|10,501 – 12,000||$349||$0|
|12,001 – 13,500||$399||$0|
|13,501 – 15,000||$449||$0|
|15,001 – 16,500||$475||$0|
|16,501 – 18,000||$499||$0|
|18,001 – 19,500||$525||$0|
|19,501 – 21,000||$549||$0|
|21,001 – 22,500||$575||$0|
|22,501 – 24,000||$599||$0|
|24,001 – 25,500||$625||$0|
|25,501 – 27,000||$649||$0|
|27,001 – 28,500||$699||$0|
|28,501 – 30,000||$725||$0|
|30,001 or more||$749||$0.015|
Per order charges for exceeding 30,000 orders per month will be applied in addition to the base rate.
7.3 At the end of each month, the Service will tally Subscriber’s total orders for the month and assign Subscriber’s account to the corresponding pricing tier. Automated billing will occur on the 5th of each month and apply to the prior month’s use of the Service. With the exception of the first month of the subscription, each billing statement will cover the full calendar month from the first day of the month to the last. The subscription fee for the for the first month will be prorated from the start date through the last day of the calendar month.
7.4 All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes which Subscribers agree to pay based on where the Subscriber is primarily domiciled. If Margin Driver has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Margin Driver with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.5 All charges are final and non-refundable. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber, or cancellation or termination of this Agreement. There are no charges for canceling a subscription.
7.6 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
7.7 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
- Cancellation and Termination
8.1 Administrators are solely responsible for canceling subscriptions. An Administrator may cancel their subscription at any time by contacting [email protected] or calling (717) 850-8275 and speaking with a Margin Driver customer service representative. Cancellations shall not be accepted by any other means. Administrators must request a cancellation at least five (5) days before the end of the calendar month in order to avoid being charged the full subscription fee for the following month. Failure to request cancellation at least 5 days before the end of the calendar month will be treated as acceptance of the terms of this User License Agreement for the next month.
8.2 Margin Driver in its sole discretion has the right to immediately terminate the Service and this Agreement, without notice, for actions that (a) are in material violation of this Agreement or (b) create a Security Emergency. In addition, if Subscriber or any Authorized User breaches any provision of this Agreement, Margin Driver may provide written notice to Subscriber stating the nature and character of the breach and allowing Subscriber ten (10) days from the date of the notice (the “Cure Period”) to cure the breach. If the breach is not corrected within the Cure Period, Margin Driver shall have the right to suspend the Service and/or terminate this Agreement.
8.4 Except as to termination for a Security Emergency, the effective date of any cancellation or termination of the Service shall be the last day of the calendar month. Except as to exporting Content, data or reports as provided in Section 8.5, access to the Service and billing shall cease upon the effective date of such cancellation or termination.
8.5 Upon cancellation or termination of Service for any reason, Subscriber shall have thirty (30) days following the effective date of cancellation or termination to use the export functionality of the Service to export any Content, data or reports. After such 30-day period, Margin Driver shall permanently delete all Subscriber Content, data or reports from the Service.
8.6 Sections 3 (License Restrictions), 5 (Protection of Proprietary Information), 6 (Security and Access), 7 (Payment, Refunds and Subscription Changes), 8 (Cancellation and Termination), 9 (Limitation of Liability), 10 (Disclaimer of Warranties), 11 (Indemnification), 12 (Miscellaneous), and all other provisions of this Agreement that by their nature extend beyond the termination of this Agreement, shall survive the cancellation or termination of this Agreement.
- Limitation of Liability
9.1 to the fullest extent permitted by applicable law, IN NO EVENT WILL MARGIN DRIVER OR ANY OF ITS SERVICE PROVIDERS BE LIABLE TO SUBSCRIBER OR ANY AUTHORIZED USER OR ADMINISTRATORS FOR ANY DAMAGES, UNDER ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT OR STRICT LIABILITY, WHICH EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE.
9.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MARGIN DRIVER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, DATA, GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF MARGIN DRIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER MARGIN DRIVER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
9.3 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MARGIN DRIVER TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
9.4 ANY CAUSE OF ACTION OR CLAIM SUBSCRIBER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9.5 Subscriber will solely be responsible for any damage and/or loss of Content caused, in whole or in part, by a failure of Subscriber’s electronic equipment and/or Subscriber’s computer system.
9.6 Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Margin Driver liable for any loss, damage, or injury resulting from the interception of information.
- Disclaimer of Warranties
10.1 THE SERVICE IS PROVIDED TO SUBSCRIBER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MARGIN DRIVER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY MARGIN DRIVER, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
10.2 MARGIN DRIVER MAKES NO WARRANTY THAT ITS SERVICES WHEN PROVIDED TO SUBSCRIBER IN DIGITAL OR ELECTRONIC FORMAT WILL BE COMPATIBLE WITH SUBSCRIBER’S COMPUTER AND/OR OTHER EQUIPMENT, THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR THAT THESE SERVICES WILL BE SECURE OR ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NOR DOES MARGIN DRIVER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE.
11.1 Subscriber hereby agrees to indemnify and hold harmless Margin Driver from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following: (a) Subscriber’s or any Authorized User’s breach of this this Agreement, (b) Subscriber’s or any Authorized User’s negligent acts or omissions, or (c) Subscriber’s or any Authorized User’s use or misuse of the Service. Margin Driver will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber shall undertake, at Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Margin Driver. Margin Driver reserves the right to participate in the defense of the claim, suit, or proceeding, at Margin Driver’s expense, with counsel of Margin Driver’s choosing.
12.1 Waiver. The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
12.2 Integrated Agreement. This Agreement constitutes the entire agreement between Subscriber and Margin Driver and governs Authorized User’s use of the Service, superseding any prior agreements between Subscriber and Margin Driver (including, but not limited to, any prior versions of this Agreement).
12.3 Amendment. Margin Driver reserves the right to unilaterally amend this Agreement. In such event, Margin Driver will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered Subscriber’s acceptance of any new or modified terms.
12.4 Force Majeure. Neither party shall be deemed to be in breach of this Agreement as a result of, or liable to the other for, any delays in the performance of its obligations hereunder (except for the payment of money due under this Agreement) caused by fire, explosion, act of God, strikes, war, riot, acts by government or any other cause beyond the reasonable control of such party, provided that each party gives the other party written notice promptly and uses its best efforts to cure the delay. If the delay continues for a period in excess of two (2) months, either party shall be entitled to terminate this Agreement upon written notice to the other party.
12.5 Assignment. Subscriber may not directly or indirectly assign, delegate or transfer this Agreement, in whole or in part, whether voluntarily, by operation of law, or otherwise, without the prior written consent of Margin Driver, which consent shall be a Margin Driver’s sole discretion. Margin Driver may directly or indirectly assign, delegate or transfer this agreement, in whole or in part, whether voluntarily, by operation of law, or otherwise, without the consent of Subscriber. Any purported assignment or transfer in violation of this Section shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Choice of Law / Venue. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule. The parties hereby consent to personal jurisdiction of the Pennsylvania courts with respect to any legal action to enforce the terms and conditions of this Agreement or otherwise arising under or with respect to this Agreement, and agree that the Pennsylvania courts of common pleas, County of York, or, if applicable, United States District Court sitting in the Middle District of Pennsylvania, shall be the sole and exclusive venue, and the Commonwealth of Pennsylvania shall be the sole forum, for the bringing of such action. The prevailing party shall be entitled to recover all of its reasonable attorneys’ fees, expenses and costs, including such costs that might not otherwise be recoverable as costs in the absence of this Agreement.
12.10 Injunctive Relief. Subscriber acknowledges and agrees that if Subscriber or any Authorized User breaches any obligation hereunder, Margin Driver may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and that in addition to all other remedies that Margin Driver may have, Margin Driver shall be entitled to seek injunctive relief, specific performance or any other form of relief, including but not limited to equitable relief, to remedy a breach or threatened breach hereby by Subscriber or any Authorized User and to enforce this Agreement. Subscriber hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.
12.11 Severability. If any provision of this Agreement is adjudged by a court to be invalid, void or unenforceable, the parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question will be replaced by the lawful provision that most nearly embodies the original intention of the parties, and that this Agreement shall in any event otherwise remain valid and enforceable.