Etail Solutions Terms & Conditions

Etail Solutions Terms and Conditions

These Terms and Conditions (these “Terms” or this “Agreement”) sets forth the terms and conditions under which Etail Solutions, LLC, a New York limited liability (Etail) will provide its application, materials, and services described on the applicable order (the “Services”). “You” or “Your” as used in this Agreement refers to you, or your company, firm or entity, your officers, directors, shareholders, and employees.  Capitalized terms used herein and not defined have the meaning assigned in the applicable Order (as defined below).

  1. GRANT OF LICENSE.  

Etail hereby grants You a limited, non-exclusive, non-transferable, right to access and use the Services, solely for Your own internal business purposes and subject to these Terms and the terms set forth on the applicable order (each, an “Order”).  All rights not expressly granted to You are reserved by Etail and its licensors. The foregoing license shall immediately terminate upon termination of this Agreement for any reason.

  1. COPYRIGHT

Title and copyrights in and to the Services, including any images, photographs, animations, video, audio, and text incorporated into or made a part of the Services, and all accompanying electronic materials, together with any copies You are permitted to make under these Terms, are owned by Etail or its licensors and are protected by the United States copyright laws and international treaty provisions. You are permitted to make copies of the training materials accompanying the Services solely for use as reference guides for authorized users using the Services pursuant to these Terms. All such copies shall contain the copyright and other proprietary notices of Etail. You are prohibited from any other copying of the printed materials accompanying the Services without the express written permission of Etail.

The Services may interoperate with various third-party platforms (“Third-Party Platforms”).  You acknowledge that such integration features may be unavailable or may not work properly if the Third-Party Platform (or its API) is unavailable or if the service provider modifies its API or services in a way that impacts the Etail’s integration feature. Continued interoperation of the Services with any Third-Party Platform is dependent upon the availability of each such platform and Etail may cease to provide such functionality if access to any Third-Party Platform is not available to Etail on commercially reasonable terms.

  1. YOUR USE OF THE SERVICES  

You agree to use the Services solely in conjunction with the operation of your business, and such operation may include use by related third-party partners, vendors, and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Account. You are responsible for all use of the Services by your authorized users.  You control access to and the management of the Your Data through Your account.

You acknowledge and understand that You are solely responsible for the use of and the results obtained from the Services. You will comply with any and all applicable laws regarding Your use of the Services including applicable international export rules and regulations, laws and treaties governing Your use of the Services, laws related to data privacy, international communications, and the transmission of technical or personal data.

You will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or competitor of Etail the Services in any way; (b) modify or make derivative works based upon the Services; (c) “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (d) reverse engineer or access the Services in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (e) use the Services (i) for any illegal purpose, (ii) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (iii) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.

You shall not: (a) intentionally interfere with or disrupt the integrity or performance of the Services; or (b) attempt to gain unauthorized access to the Services, (c) intentionally send or store software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services.

You agree that the Services are not intended for use in the storage, processing, or handling of data that is (i) Protected Health Information subject to the Health Insurance Portability and Accountability Act, as amended (“HIPAA”), (ii) Sensitive Personal Data or (iii) the following data elements (a) Social Security number; (b) driver’s license number or government-issued      identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “Protected Health Information” has the meaning set forth in HIPAA, and “Sensitive Personal Data” has the meaning set forth in Article 9 of the European Union General Data Protection Regulation or other applicable data protection legislation.

You understand that Etail Solutions may request a unique ID with access to your marketplace accounts in order to provide better customer support during troubleshooting during implementation and ongoing support. Access to your accounts is privileged and confidential, and the credentials provided will be protected using a password manager with restricted access for only those with a need to access the marketplace accounts.

  1. WARRANTY

Etail represents and warrants that:

  1. Etail has the full power to enter into this Agreement and perform the Services provided for herein, and that such ability is not limited or restricted by any agreements or understandings between Etail and other persons or companies; 
  2. The performance of the terms of this Agreement and of Etail’s obligations hereunder shall not breach any separate agreement by which Etail is bound; 
  3. Etail will not materially decrease the overall security of the Software;
  4. Etail will not materially decrease the overall functionality of the Software;
  5. The services shall be performed faithfully, diligently, to the best of Etail’s ability and in a professional and workmanlike manner; 
  6. The services shall be performed in compliance with all applicable laws and regulations; 
  7. No software or services provided by Etail shall infringe the intellectual property of any other party;
  8. The Services do not contain a malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems, or data; and
  9. The Services have been created using, and will maintain during the applicable term, at least an industry-recognized level of security given the state of technology available for such Services; Etail will not materially decrease the overall security of the Services, and Etail will use commercially reasonable practices designed to protect Your Content (as defined in Section 7) against unauthorized access and disclosure.

If the warranty set forth in subsection (b) is breached then: (i) You must promptly notify Etail of the breach and provide any associated details reasonably requested by Etail in its attempt to remedy the defect.  Etail will diligently and in good faith attempt to correct the reported defect within a commercially reasonable period of time.  If Etail is unable to cure that defect, then You may elect to terminate your right to use Services and receive a refund of the unearned portion of any fees paid to Etail for the remainder of the then-current term.  

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. PERFORMANCE

Etail will use commercially reasonable efforts to ensure that the Services will be available 99.9% of the time each month other than during scheduled maintenance or database indexing or backups performed any time between 11pm – 2am Central Standard Time. You understand that normal maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. It is possible that there will be interruptions of Services during non-scheduled maintenance. Etail will make commercially reasonable efforts to address errors and omissions in the Services and to ensure the Service is performing in a manner materially in compliance with the Documentation.

Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Etail is not responsible for any delays, delivery failures, or other damage resulting from such problems.

  1. SERVICES UPGRADES, ENHANCEMENTS, AND BRANDING

Etail makes regular changes and improvements to the Services from time to time but in no event will such changes materially reduce the functionality provided by the Services as of the date of the applicable order.  Etail will communicate with You about planned changes as may be necessary to ensure Your efficient use of the Services.  Etail will provide its standard support at no additional charge.

Etail may use any feedback or suggestion it receives from You with respect to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing, and/or creating derivative products.  Etail shall have no obligation to compensate You in connection with the use of such Feedback nor shall Etail identify You as the source of any such Feedback.  All Feedback shall be owned by Etail and You shall and hereby do, assign all of Your right, title, and interest in and to such Feedback to Etail.  

  1. YOUR INFORMATION
  1. Etail does not own any data, information, or material that is submitted to the Service by You (“Your Content”).  You retain all right, title, and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in Your Content, and Etail explicitly disclaims any ownership of, or right, title, and interest in such content.  

As between Etail and You, You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Your Content.  Etail will only use Your Content solely for purposes of providing the Services, providing support for the Services, and confirming Your compliance with these Terms.  In addition, You acknowledge that Etail may collect and analyze Your Content and other information about Your usage of the Services to improve and enhance the Services, provide support, and for other development purposes including industry-wide benchmarking; provided, however, Your Content used for benchmarking will be aggregated and anonymized and Etail will not disclose any personally identifiable information provided by You.

Your Content is considered Your Confidential information. You are responsible for exporting Your Content from the Services prior to termination of the applicable Order.  

  1. You acknowledge and agrees that Etail’s performance and completion of its services, in accordance with this agreement, is dependent and conditioned upon Your reasonable cooperation and timely receipt by Etail of Your Content for the purposes of implementing the Services.  Your Content shall be delivered to Etail in accordance with the delivery schedule established by the parties and the requirements provided by Etail.  Likewise, Etail acknowledges and agrees that Your benefit from this agreement is dependent upon the reasonable and timely cooperation of Etail in assisting You in the delivery of Your Content. Accordingly, Etail shall provide You with reasonable cooperation to deliver Your Content in accordance with the delivery schedule established by the parties and the requirements provided by Etail. 
  2. Etail shall not be responsible for any delay in performance or failure to meet its obligations under this Agreement or any Statement of Work that is caused, directly or indirectly, by (a) Your unreasonable failure to cooperate; (b) the unavailability and/or unresponsiveness of Your project champion, customers, suppliers, or any contacts required to complete an integration described in a Statement of Work, (c) delays in delivery or defects of Your Content or any material portion thereof; or (d) any event beyond Etail’s reasonable control including, but not limited to, fire, flood, earthquake, strike, embargo, or shortage of suitable parts, material, or labor (Force Majeure).  Etail will notify You in writing (Email to one of the identified contacts shall suffice) if such a delay is occurring.
  1. FEES; PAYMENT TERMS.

The fees payable for the Services (the “Fees”) shall be stated and paid in the currency specified in the applicable Order and are non-refundable.  All monthly recurring and volume-based fees for the Services are due upon receipt and unless otherwise specified shall be collected via Etail’s automated billing solution via ACH pull from the Your bank account or a valid credit card. If You choose to pay via credit card, a 3% surcharge will be added to cover payment processing fees.

For all other Services, unless otherwise specified in the applicable Order, You shall pay the Fees within fifteen (15) days from the invoice date, without setoff or deductions and otherwise in accordance with the terms of the Order.  

If any invoiced amount is not received by Etail by the due date then those amounts shall accrue late interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, commencing on the date that payment was due.

All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”) and You are responsible for the payment of all Taxes, excluding Taxes on Etail’s net income.

Etail reserves the right to modify the Fees for the Services, effective upon commencement of the next Renewal Term, by notifying You of such change in writing at least sixty (60) days before the end of the then-current Term,  

  1. TERM AND TERMINATION

The term of this Agreement shall be for so long as there are then current Orders attached to and made a part hereof unless earlier terminated as provided herein. The term of each Order will be as stated in the applicable Order.    

Either party may, at its option, terminate this Agreement and/or any then-current Order(s) if the other party materially breaches the terms of this Agreement or the applicable Order and fails to cure the same within thirty (30) days after notice.  

Etail may suspend your access to the Services and Your Content during any period that you are in material breach of this Agreement or your access to and use of the Services or Your Content creates a material security vulnerability.  Where practicable, Etail will give you at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances.  Etail will reinstate your access to the Services when the grounds for suspension are cured.  

Upon termination of Your access to or use of the Services for any reason, Etail will retain Your Content for up to thirty (30) days from the effective date of termination.  If you wish to export Your Content following a termination for breach, Etail will either, at its option, enable short-term access to the Services at a scheduled time so that you may export Your Content, or export Your Content using its standard export tools.  Etail has no obligation to retain Your Data after the thirty (30) day period and may destroy Your Content any time thereafter.  

The following sections survive expiration or termination of this Agreement:  Section 7 (Your Information); Section 8 (Fee; Payment Terms); Section 9 (Termination); Section 10 (Confidentiality); Section 11 (Indemnification); Section 12 (Limitation of Liability); Section 16 (Governing Law; Export Compliance); and any other terms that by their nature are intended to survive expiration or termination.

  1. CONFIDENTIALITY

You and Etail may disclose information to one another, and You may access information in connection with the Services, which is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. All Confidential Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party's Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in these Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.

The restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law. Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will promptly notify the disclosing party of such order or requirement.

You understand that Etail implementation and support personnel may need to access Your Account to assist You in Your implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. You permit Etail’s implementation and support personnel to access Your Account with the understanding that all information in Your Account shall be considered Confidential Information by Etail personnel. Etail agrees to hold in confidence and not reproduce, distribute, infringe on, transmit, or transfer, directly or indirectly, in any form, by any means, the Confidential Information.

  1. INDEMNIFICATION
  1. By Etail: Etail will indemnify, defend and hold You harmless from and against any and all claims, actions, losses, damages, liabilities, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements (collectively, “Losses”) incurred by You arising out of any third-party claim that the Services delivered under this Agreement infringe any patent, copyright or other intellectual property right of a third party.    

If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, Etail will either procure the right, at Etail’s sole expense, to permit Your continued use of the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If Etail reasonably and in good faith determines that neither of the foregoing are commercially practicable, Etail may terminate these Terms and the licenses granted herein effective immediately upon written notice to You and will refund the unearned pro-rata portion of any prepaid amounts.

THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND ETAIL’s’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

  1. By You.  You shall indemnify, defend and hold harmless Etail and Etail’s officers, directors, employees and agents (each a “Etail Indemnitee”) against any and all Losses incurred by an Etail Indemnitee in any action between such Etail Indemnitee and any third party arising out of or in connection with Your use of the Services.
  2. Process.  The indemnification obligations set forth herein are contingent upon the following conditions: (i) Etail or You, as the case may be (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the third party claim or action (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have sole control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
  1. LIMITATION OF LIABILITY

EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 10, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (III) YOUR OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) SHALL BE LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE.  IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 11); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  1. FORCE MAJEURE

Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.

  1. INDEPENDENT CONTRACTORS

You and Etail are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement.

  1. NOTICES

Except as explicitly stated otherwise, any notice to Etail shall be given in writing to Legal Counsel at Etail:

Etail Solutions, LLC

2150 3rd Street, Suite 7,

White Bear Lake, MN 55110, United States

Any notice to You will be given to the address You provide to Etail during the registration and provisioning process. Either party may update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, to the address provided to the other party during the registration and provisioning process. In such case, notice shall be deemed given three (3) days after the date of mailing.

  1. GOVERNING LAW; EXPORT COMPLIANCE

This Agreement is subject to the laws of the State of New York, U.S.A. (without regard to its conflicts of laws provisions).  The Services may be subject to export laws and regulations of the United States and other jurisdictions. You may not permit users to access or use the Services in a U.S.- embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Etail to be in violation of U.S. export laws, even if the use is permitted the laws applicable to you or your user or customer.  Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.

  1. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with the applicable Order(s) comprises the entire agreement between You and Etail with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms of the Agreement and any Order, the terms set forth in the applicable Order govern.  You acknowledge that any pre-printed terms and conditions on or attached to Your purchase orders will be of no force or effect.  If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.

  1. ASSIGNMENT

This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Etail directly or indirectly owning or controlling 50% or more of You shall entitle Etail to terminate this Agreement for cause immediately upon written notice.

  1. AUTHORITY

If this Agreement is being accepted by any individual for You, then You represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.

  1. UPDATES

Etail may amend these Terms from time to time, and the revised Terms shall be effective upon the commencement of the next Renewal Term (as defined in the applicable Order).  Any such revisions will apply to Etail’s customers generally, will not impose additional fees during the applicable Term, or alter the allocation of risk between you and Etail.

  1. PUBLICITY

You agree that Etail may include identification of you as a customer on Etail's website, provided that such identification is no more prominent than the identification of Etail’s other customers and is otherwise consistent with Etail’s practice of identifying its customers on its website at the time.  Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this Agreement, or mentioning or implying the trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a Party determines that a disclosure is required by applicable law.

  1. PERSONAL DATA PROTECTION CLAUSES

Each party is responsible for complying with all applicable local, state, provincial, federal, and international laws and regulations (“Applicable Laws”), including applicable data protection legal requirements, for the purposes of this Agreement. Etail shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to, or publication of Your Content. Etail shall implement processes and maintain procedures designed to comply with Applicable Laws and shall facilitate your compliance with your obligations for data security and response to individual data subject requests with respect to Personal Information in Etail’s possession or control, to the extent that you are required to comply with the following: (i) the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act (" UK GDPR "); (ii) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“ GDPR ”) and any applicable laws enacted by an EU member state implementing the requirements of GDPR; (iii) the Australian Privacy Act 1988 and National Privacy Principles; (iv) the Canadian Personal Information Protection and Electronic Documents Act; (v) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (“ CCPA ”); (vi) any other existing or newly enacted Applicable Laws regarding privacy; and (vii) any amendments and successors to the foregoing. This Agreement and the Documentation are your instructions for processing Your Content, and Etail shall not process Your Content for any other purpose. Etail may use subcontractors to facilitate its obligations under this Agreement, and Etail shall be responsible for the acts and omissions of such subcontractors relating to this Agreement as though they were those of Etail. Etail shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Your Content.

If Etail processes Your Content on behalf of you for the provision of the Services, the parties acknowledge and agree that Etail is a “Service Provider” as defined in the CCPA, and Your Content may include personal information, as that term is defined by the CCPA (“ CCPA Personal Information ”). Etail does not sell CCPA Personal Information. When Etail processes CCPA Personal Information for or on your behalf, Etail collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in this Agreement, and for no other commercial purpose. Etail certifies that it understands and will comply with the restrictions set forth in this Section 4(d) (CCPA Service Provider).

To the extent that Etail processes any Personal Data (as defined in the Etail Data Processing Addendum, (the “DPA”)) and (i) the Personal Data relates to individuals in the EEA or the United Kingdom, or (ii) you are established in the EEA or the United Kingdom, you agree that Etail does so as a processor only and the parties agree to comply with the DPA.

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