MSA

Per the execution of a Platform Agreement or Renewal Form that references this master service agreement you agree to the terms of this agreement and the applicable documents referred to hereunder. You confirm that you have the authority to bind the company or other legal entity and its affiliates identified in the Platform Agreement or Renewal form to these terms and conditions.

Last updated: March 23, 2022

1. Definitions

 

In this Agreement, unless otherwise expressly defined or the context otherwise requires:

(a) “Agreement” means this services agreement, any Order or Renewal Forms and all related amendments.

 

(b) “Client” means the individual, company or other legal entity that has signed the Order or Renewal Form and has agreed to be bound by the terms of this Agreement.

 

(c) “Confidential Information” means any oral, written or electronic data and information now or hereafter existing during the currency of this Agreement, relating to the business and management of either party which is treated by such party as confidential, to which access is granted or obtained by the other party, but does not include any data or information which (i) was known to the recipient prior to the disclosure to it by the other party; or (ii) was independently developed by the recipient as evidenced by records; or (iii) is subsequently lawfully obtained by the recipient from a third party, without breach of this Agreement by the recipient; or (iv) becomes publicly available other than through a breach of this Agreement; or (v) is disclosed where the other party has provided its prior written consent to such disclosure by the recipient; or (vi) is disclosed by legal requirement. 

 

(d) “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement.

 

(e) “Intellectual Property Rights” means all right, title and interest in and to any and all intellectual and industrial property, including: (a) any and all patents and applications therefore; (b) any and all inventions, trade secrets, design, methods, processes and know-how; (c) any and all copyrights, copyrights registrations and applications therefore, and all other rights corresponding thereto throughout the world; (d) any and all trade names, corporate names, logos, common law trademarks, trademark registrations and applications therefore; and (e) any and all computer programs, applications or Software whether in source, object or executable code and any proprietary rights in such programs, applications or software, including documentation and other materials or documents related thereto.

 

(f) “Service” means a service as specified in an Order or Renewal Form, which Giftagram provides to the Client under this Agreement.

 

(g) “Order or Renewal Form” means the Schedule provided separately, or the quote or fee estimate signed by the Client, as amended or modified between the parties from time to time, which describes a Service to be provided by Giftagram to Client and any additional terms and conditions relating specifically to such Service.

 

(h) “Software” means computer programs, regardless of format or medium, their documentation and specifications.

2. Interpretation

 

In this Agreement, unless otherwise expressly provided or as the context otherwise requires: (a) headings are solely for convenience of reference and are not intended to be complete or accurate descriptions of content or to be guides to interpretation of this Agreement or any part of it; (b) an accounting term not otherwise defined in this Agreement has the meaning assigned to it, and every calculation to be made under this Agreement is to be made, in accordance with accounting principles generally accepted in the respective jurisdictions (Canada and US) applied on a consistent basis; (c) a reference to currency means US Dollars unless otherwise specified; (d) a reference to a statute includes all regulations made thereunder, all amendments to the statute or regulations in force from time to time, and every statute or regulation that supplements or supersedes such statute or regulations; (e) a reference to an entity includes any successor to that entity; (f) a word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa; (g) a reference to “approval”, “authorization” or “consent” means written approval, authorization or consent; (h) if there is any conflict or inconsistency between the terms of the body of this Agreement and a Order or Renewal Form, the terms of the Order or Renewal Form will prevail; (i) the word “including”, when following a general statement or term, is not to be construed as limiting the general statement or term to any specific item or matter set forth or to similar items or matters, but rather as permitting the general statement or term to refer also to all other items or matters that could reasonably fall within its broadest possible scope; and (j) a reference to a Part or Section is to a Part or Section of this Agreement.

3. Services

(1) Agreement to Perform Services. Giftagram agrees to perform and Client agrees to accept the Services described in the Order or Renewal Form in accordance with the terms and conditions of this Agreement. The parties agree that Giftagram will perform the Services as an independent contractor and not as an employee, joint venturer or partner of Client.

 

(2) Change Orders. Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to Giftagram specifying the additions or modifications to the Services desired (the “Change Notice”); and (b) if Giftagram is prepared to add to or modify the Services as requested by the Client, it shall prepare and submit an amendment to the Order or Renewal Form (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining the Client’s written signature to the Change Order, the Change Order will become part of the Platform Agreements.

 

(3) Right to Subcontract. Giftagram may, without the written consent of the Client, subcontract to any third party any of the Services to be provided to the Client hereunder. In the event Giftagram subcontracts any of the Services to a third party service provider, Giftagram shall be and remain fully responsible for any acts of such subcontractors.

 

(4) No Exclusivity. Client acknowledges that nothing in this Agreement obliges Giftagram to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Giftagram from entering into agreements with other persons concerning the provision of similar services.

4. Term, Termination and Suspension of Service

(1) Term. The term and any renewal terms (collectively, the “Term”) relating to the Services provided by Giftagram to the Client under this Agreement are as specified in the Order or Renewal Form.

 

(2) Termination by Client. Client may terminate this Agreement before the end of the Term without liability (except for amounts due for Services provided up to the effective date of the termination) if Giftagram: (a) fails to provide the Services in accordance with the terms of this Agreement, such failure causes material harm to Client and Giftagram does not cure the failure within 10 days of receipt of notice in writing from Client describing the failure in reasonable detail; or (b) materially violates any other provision of this Agreement and fails to cure the violation within 30 days of receipt of notice in writing from the Client describing the violation in reasonable detail.

 

(3) Termination by Giftagram. Giftagram may terminate this Agreement before the end of the Term without liability (a) on 30 business days’ notice to Client if Client is overdue on the payment of any amount due under this Agreement; (b) if Client materially violates any other provision of this Agreement and fails to cure the violation within 10 days’ notice in writing from Giftagram describing the violation in reasonable detail; (c) upon at least 90 days notice if Giftagram is threatened with a legal claim for copyright or patent infringement related to the provision of the Services and is unable to modify the Services in a way that avoids an ongoing risk of liability; or (d) immediately on written notice upon Client becoming insolvent or bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada) or Title 11 of the US Bankruptcy Code.

 

(4) Suspension of Service. Giftagram will be entitled to suspend the Service without liability if (a) Giftagram, acting reasonably, believes that the Service is being used in violation of this Agreement or any applicable law; (b) Client is in breach of any material term of this Agreement including, without limitation, failing to pay invoiced amounts in full within 30 days of the Due Date (defined in section 5(1) below); or (c) Giftagram is requested to do so by any law enforcement or governmental agency. The Customer will not be able to access any files on Giftagram’s servers during a suspension of Service. Giftagram will use commercially reasonable efforts to give the Customer advance notice in writing of a suspension of Service unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect Giftagram or its other customers. A suspension of Service under this subsection will not be considered a breach by Giftagram of the terms of this Agreement.

 

(5) Assignment and Inurement. Neither this Agreement nor any right of obligation under this Agreement may be assigned by the Customer without the prior written consent of Giftagram. This Agreement ensures to the benefit of, and is binding upon, the parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors, and permitted assigns. Giftagram may assign this Agreement, in whole or part, without obtaining any consent from the Customer.

5. Fees, Invoicing and Payment

(1) Fees, Payment and Dispute. Fees for Giftagram’s Services will be specified in the Order or Renewal Form. Payments will be made within 30 days of the invoice date, unless stated otherwise in writing. If Client wishes to dispute an amount that has been invoiced by Giftagram, it will nonetheless make payment on the Due Date to Giftagram as invoiced. If it is determined that the invoiced amount was excessive, any payment by Client in excess of the amount Giftagram is entitled to, will be refunded to the Client.

 

(2) Additional Fees. Client will also be responsible to Giftagram for all fees and charges associated with any additional services or incremental costs incurred by Giftagram in providing the Services caused by Client’s failure to: (a) provide accurate Data in a prescribed format; (b) perform any of its obligations under this Agreement; or (c) provide Data at the time required for processing.

 

(3) Payment Method. If the Client pays any fees by Wire Transfer, Giftagram will provide account details including, bank name, address, account number, transit number and institution number, or any other relevant information that will ensure the successful completion of the Wire Transfer. If Client pays any fees by credit card, Client expressly authorizes Giftagram or its agents to charge all fees, charges and expenses incurred under this Agreement to such card, and such authorization will survive termination of this Agreement until there are no fees, charges or expenses owing by Client under this Agreement.

(4) Taxes. Client acknowledges that all applicable taxes, duties or government levies whatsoever are not included in the fees and expenses charged under this Agreement.

6. Giftagram’s Responsibilities, Representations and Warranties

(1) Agreements. In the performance of Services, Giftagram agrees to:

(a) perform the Services defined within each Order or Renewal Form to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances;

(b) liase with Client through Client’s coordinator on matters related to the Services;

(c) notify Client, whenever practicable, if expenses beyond the defined charges within a Order or Renewal Form may be incurred;

(d) invoice Client according to the terms of this Agreement and the applicable Order or Renewal Form for the Services performed; and

(e) subject to Section 8(3), proceed according to Client’s reasonable instructions for the disposition of Client’s Data and supplies on the termination of any Order or Renewal Form.

 

(2) Reasonable Attempts to Correct Errors on Notice. Giftagram warrants that it will at its expense make commercially reasonable attempts to correct any errors for which Giftagram is directly and solely responsible by rerunning the Service, provided that the Data necessary to correct such errors is available to Giftagram; or at Giftagram’s option provide a credit to Client equivalent to the charge that would have been applicable for correcting that portion of the Service that is in error, such credit will be only for errors due solely to malfunction of a system or Software provided by Giftagram or any error made by Giftagram’s personnel in the performance of the Service. To obtain the rerun Service or the credit, Client must notify Giftagram in writing of such errors within thirty days of receipt of the Services believed to contain the errors.

7. Client's Responsibilities, Representations and Warranties

(1) Agreements. Client agrees to:

(a) provide all necessary Data and any special forms or other required materials or information to Giftagram on schedule or in a timely fashion to enable Giftagram to provide the Services;

(b) ensure the accuracy, legibility, and completeness of all Data supplied to Giftagram and be solely responsible for the results obtained from Client’s use of any of the Services;

(c) establish and maintain a backup procedure for the reconstruction of lost Data and of lost Software;

(d) liaise with Giftagram through a coordinator Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Client in relation to the implementation of this Agreement and the Services and any changes thereto;

(e) comply with Giftagram’s security and operating procedures (as may be revised or amended by Giftagram from time to time) when Client’s employees or agents are interfacing with Giftagram installed systems;

(f) control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Giftagram installed systems;

(g) restrict Client’s employees and agents from interfering with, and from any unauthorized use of Software and equipment which is owned by Giftagram, in Giftagram’s possession, or under Giftagram’s control;

(h) provide remote access and reasonable physical access to Client’s premises at all times and places as reasonably required by Giftagram to perform the Services;

(i) provide all compatible telephone, computer, hardware and Software equipment and services necessary to access the Services, or the product created from the Services as the case may be; and

(j) perform any other activities as defined in the Platform Agreements.

 

(2) Client Representations. Client represents and warrants to Giftagram that: 

(a) if Client is an individual, that he or she is at least 21 years of age and has the legal capacity to enter into this Agreement

(b) if Client is not an individual, it has the power, capacity and authority to enter into this Agreement and this Agreement is enforceable in accordance with its terms

(c) the information Client has provided for the purpose of establishing an account with Giftagram is accurate, and 

(d) Client has complied with and will continue to comply with all applicable privacy laws and has obtained and will continue to obtain the requisite privacy consents in the collection and use of all information that may be collected on any website or maintained on any server hosted by Giftagram.

8. Data and Privacy

(1) Ownership, Compatibility and Security. All Data supplied by Client related to the performance of a Service remains Client’s exclusive property. All supplied Data must be on media compatible with Giftagram processing equipment and, where applicable, in the format which Giftagram, acting reasonably, prescribes. Giftagram will not be responsible or liable for the security or integrity of Client’s Data during transmission via public telecommunications facilities (including the Internet) or services. Giftagram recommends that Client make its own arrangements to regularly backup all Data files and has no liability if any precautionary backups made by Giftagram fail in whole or in part.

 

(2) Privacy Laws. The parties are each responsible for complying with any obligations applying respectively to them under the applicable data protection and personal information protection laws (“Privacy Laws”) governing the Client’s Data.

 

(3) Handling of Data. Giftagram’s retention policy is  implemented across all accounts. Giftagram anonymizes recipient name, addresses, emails and phone numbers 60 days following an order’s successful delivery, to allow for shipment tracking and customer service. Address anonymization shall not include the recipient’s state and zip code, or gift, as that information is maintained for client tracking purposes. 

 

(4) Accuracy of Data Provided by Giftagram. Any Data which Giftagram provides under this Agreement is compiled from sources which Giftagram considers to be reliable, however, Giftagram does not represent or warrant the accuracy, completeness or usefulness of Data provided to Client for use.

9. Software and Intellectual Property Rights

(1) Ownership of Intellectual Property Rights. All Intellectual Property Rights, including any Software, owned by a party, its licensors or subcontractors as at the effective date of this Agreement shall continue to be owned by such party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title or interest in or to such Intellectual Property Rights. Giftagram shall own all right, title and interest in and to any materials created or developed by Giftagram or its subcontractors for its internal use or for assisting Client in the provision of the Services and Client shall own all right, title and interest in and to any Intellectual Property Rights resulting or based on any work product created or developed exclusively for Client under this Agreement if fully paid for by Client.
 

(2) License of Client Software and Intellectual Property. Client grants to Giftagram, solely for Giftagram’s provision of the Services, a license during the Term to use any Intellectual Property Rights, including any Software, owned by or licensed to Client by third parties and that is necessary for providing the Services to Client and otherwise performing its obligations under this Agreement. With respect to any Intellectual Property Rights and Software used by Giftagram to provide the Services, Client represents and warrants that: (a) Client is either the owner of such Intellectual Property Rights or Software or is authorized by its owner to include it under this Agreement; and (b) Giftagram has the right during the Term to use such Intellectual Property Rights and Software for the purpose of providing the Services to Client as contemplated by this Agreement.

 

(3) No Assurance of Compatibility. Client acknowledges that Giftagram makes no representation, warranty or assurance that the Client’s equipment and Software will be compatible with Giftagram’s equipment, Software and systems or the Services.

(4) Inspection. Giftagram may inspect any of Client’s Software which requires access to system control program instructions, system libraries or other secure Data, and may deny such access on systems which are under Giftagram’s control.

10. Confidentiality

(1) Giftagram will not use any of Client’s Confidential Information except in connection with the performance of the Services or the exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of Client’s Confidential Information and to prevent the unauthorized disclosure to others of the Confidential Information. Giftagram shall implement industry standard security procedures, such as appropriate firewall, encryption and access security measures but shall not be liable for damages caused to the Client by inadvertent breaches of confidentiality.

(2) Giftagram shall only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be reasonably necessary in the exercise of Giftagram’s rights and performance of the Services under this Agreement. Notwithstanding anything to the contrary in this Agreement, Giftagram will not be required to keep confidential, and may use or license without restriction, any ideas, concepts, know-how or techniques related to information processing which are developed by Giftagram in the performance of Services.

(3) Notwithstanding the foregoing, Giftagram shall be permitted to: (i) monitor Client’s use of the Services; (ii) report to the appropriate authorities any conduct by Client (or Client’s customers or end users) that Giftagram reasonably believes violates any applicable law, (iii) provide any information, including Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from a law enforcement or government agency; and (iv) disclose that Giftagram is providing the Services to Client and may include Client’s name in promotional materials including press releases and on Giftagram’s website.

11. Limitation of Liability and Exclusions

Under no circumstances shall Giftagram be liable to the Client or any third party for any damages resulting from any part of this agreement such as, but not limited to, loss of revenue or anticipated profit or lost business, costs of delay or failure of delivery, which are not related to or the direct result of a party’s negligence or breach.

12. Indemnities

(1) Client Indemnity. Client will indemnify and hold harmless Giftagram its affiliates, and their respective shareholders, directors, officers, agents and employees from and against any costs, losses, claims, damages, judgments, penalties, liabilities, expenses and other amounts of any kind or nature whatsoever (including reasonable legal fees and expenses) arising out of or related to or resulting from (a) action taken or permitted to be taken by Giftagram in good faith in reliance on instructions or orders received from Client as to anything arising in connection with Giftagram’s performance of its obligations under this Agreement; (b) actual or alleged use of the Service in violation of this Agreement or any applicable law, including without limitation infringement of third party intellectual property rights, by any person regardless of whether such person has been authorized to use the Service by Client, except for unauthorized use that is a direct result of Giftagram’s negligence or failure to perform its obligations under this Agreement; (c) actual or alleged breach by Client of any of its obligations, whether contractual, statutory or implied, to its customers or end users; (d) any dispute between persons who claim to have authority to act for Client in connection with the control of the Customer’s account with Giftagram; and (e) the breach of any representation, warranty or covenant made by Client under the terms of this Agreement.

 

(2) Giftagram Indemnity. Subject to Part 11 of this Agreement, Giftagram will indemnify and hold harmless Client its affiliates, and their respective shareholders, directors, officers, agents and employees from and against any costs, losses, claims, damages, judgments, penalties, liabilities, expenses and other amounts of any kind or nature whatsoever (including reasonable legal fees and expenses) arising out of or related to or resulting from action taken or permitted to be taken by Client in good faith in reliance on instructions or orders received from Giftagram as to anything arising in connection with Client’s performance of its obligations under this Agreement.

13. Notices

(1) Any notice or demand to be given by either party to the other under this Agreement will be in writing and may be delivered personally, by email, or by first class prepaid mail to the following addresses:

 

Giftagram Inc.

460 Richmond St W, Suite 400

Toronto ON Canada M5V1Y1

peter@giftagram.com

 

(2) Notices delivered in person, email or facsimile will be effective on the date of such delivery. Notices issued by mail will be effective on the third business day following the date that the envelope containing the notice is post-marked unless between the time of mailing and the time the notice is deemed effective there is an interruption in postal service, in which case, the notice will not be effective until actually received. In the event of a postal strike or lockout, notices or demands under this Agreement must be delivered personally or by facsimile.

14. Dispute Resolution

Except as otherwise provided in this Part 14, all disputes, controversies, claims or disagreements arising out of or relating to this Agreement that cannot be resolved independently between the parties within thirty (30) days (singularly, a “Dispute” and collectively, “Disputes”), will be settled by arbitration as follows: (1) such Dispute may be submitted to arbitration by either party giving written notice to the other party that the party giving the notice has elected to have the Dispute submitted to arbitration. Any arbitrator nominated or selected will be independent of each of the parties to the Dispute; (2) it is the intention of the parties that the arbitration will be conducted, and that the determination or award of the arbitrator be made and communicated in writing to the parties, as expeditiously as possible and this will be reflected in choice of and directions given to and by the arbitrator. The arbitrator will conduct the arbitration of the dispute as expeditiously as reasonably possible and will provide written reasons for his or her decision. The decision of the arbitrator duly appointed pursuant to this Part 14 will be final and binding upon the parties hereto; Notwithstanding anything contained in this Part 14, each of the parties hereto will be entitled to (i) commence legal proceedings seeking such equitable, mandatory, declaratory or injunctive relief as may be necessary to define or protect the rights and enforce the obligations contained herein pending the settlement of a Dispute, (ii) commence legal proceedings involving the enforcement of an arbitration decision or award arising out of this Agreement, or (iii) join any arbitration proceeding arising out of this Agreement with any other arbitration proceeding arising out of this Agreement.

15. General

(1) Neither party will be responsible for any failure to fulfill its respective obligations under this Agreement due to causes beyond its reasonable ability to control (such as due to an event of fire, flood, earthquake, element of nature or act of God, civil disorders or any similar events commonly referred to as “force majeure”) provided that the party affected by such cause has used and continues to use all reasonable efforts to perform its obligations and makes reasonable attempts to notify the other party in writing within five business days of its inability to fulfill its obligations under this Agreement.

 

(2) This Agreement constitutes the entire agreement between the parties concerning all the matters herein and supersedes all prior agreements, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written. This Agreement cannot be amended or modified other than by a change made in writing and executed by the parties. No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.

 

(3) In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.

 

(4) The provisions of Sections 8(2), 10, 11 and 12 shall survive the termination of this Agreement for any reason. This Agreement may be executed in one or more counterparts, including by facsimile transmission, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement.