Merchant Services Agreement

Pronti Recommends Shopify App

Date of last revision: January 29th, 2022

This Services Agreement (the “Agreement”) is a legal agreement between you and Pronti AI Inc. (“Pronti”) respecting your use of the Pronti Recommends software and service, as described herein. 
 
“You” or “you” means the individual or company agreeing to this Agreement; if you are accepting this agreement on behalf of a company, you are represent that you have the authority to bind the company to the terms and conditions of this Agreement.  BY CLICKING ON THE APPROPRIATE ACCEPTANCE BUTTON, OR BY OTHERWISE USING THE SOFTWARE OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  If you have any questions or concerns about the terms of this agreement, please contact us at support@pronti.ai.

1. Definitions

1.1. “Application” means Pronti’s smart wardrobe assistant software application offered to Users through various app stores that enables Users to upload pictures of their clothing and accessories and obtain suggestions on combinations to wear based on available items and user input as to mood and situation, as well as suggestions relating to matching or complementary items to purchase from third party vendors.
1.2. “Content” means content that is publicly available on your Web Store, and specifically the clothing, fashion accessories, and other products offered by you for sale through your Web Store.
1.3. “Marks” means the trademarks, trade names, service marks, logos and other identifiers, individually and collectively, provided or made accessible to Pronti by you, whether directly or through the Content, that belong to you or any third party.
1.4. “Platform” means the Pronti web-based software platform which utilizes algorithms to analyze content provided by Users through the Application as well as content provided by third party vendors (including your Content) and provide suggestions to Users through the Application for clothing combinations and outfits, as well as potential purchase opportunities from you and other third party vendors.
1.5. “Plug In” means the Pronti Recommends software plug-in available through the Shopify app store that allows you to use the Services.
1.6. “Services” has the meaning set forth in Section 2 below.
1.7. “Software” means the Application, Plug In and Platform collectively.
1.8. “User” means a user of the Application that may also be your customer or prospective customer, based on your Content.
1.9. “Web Store” means your e-commerce website hosted through Shopify, through which you offer clothing, fashion accessories and other similar products for sale to customers.

2. The Services

2.1. Subject to the terms of this Agreement, Pronti will enable your Content to be accessible to Users on the Application through the Plug In, and will recommend items within your Content to Users as potential purchases, as appropriate to the Users based on the Users’ content and use of the Application (the “Services”). You acknowledge that if your Content is in a form that is not able to be processed by the Software, then such Content will not be available to Users through the Services. The parties will work in good faith to resolve any issues with the processing of the Content by the Software.

2.2. Pronti hereby grants you a personal, non-exclusive, revocable, non-transferable license to install and use the Plug In on your Web Store, solely for the purposes of using the Services. You shall not in any way:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Plug In or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Plug In, in whole or in part, to any third party on a temporary or permanent basis;
(c) use the Plug In in any way inconsistent with the use parameters for the Services; or
(d) attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Pronti with respect to the Platform and/or data and/or content transmitted, processed or stored by Pronti, Users, or any other third party using the Software.

2.3. As use of the Services is conditional upon your use of the Plug In in conjunction with your Web Store in order for Pronti to obtain your Content, you also agree to comply with all Shopify terms and conditions respecting the downloading, payment and usage of such Plug In, where applicable, and will defend, indemnify and hold Pronti harmless from and against any liability, claims, costs, expenses and damages arising from your non-compliance.

2.4. Pronti’s sole responsibility under this Agreement is to provide Users with the Content in the Application as appropriate and direct Users to your Web Store through the Application. You acknowledge that Pronti may independently obtain content and services from third parties, including from other clothing vendors, that are similar to the Content (“Third Party Content”). Pronti does not assess Content or Third Party Content for quality or otherwise; all recommendations to Users generated by the Software are based solely on algorithms that are designed to detect whether certain patterns are present within the User uploaded content, Content and Third Party Content, not as the result of any specific examination of the data or content by Pronti or its employees, or any judgment exercised by Pronti or its employees respecting such data or content. Accordingly, Pronti cannot and does not make any assurance, representation or guarantee whatsoever respecting any User views, clicks or other exposure to your Content through the Services, including without limitation any minimum volume or numbers. Pronti does not guarantee any sales or other results relating to the provision of the Services.

2.5. Pronti is not associated with, and has no control over the operations of, you or any third party sellers, and is not in any way responsible for the marketing, advertisements or offers made by you or any third party sellers in the Content or Third Party Content. Content and Third Party Content is obtained through the Software automatically from your Web Store and the web stores of third parties with whom Pronti has contracted, and you therefore specifically acknowledge that Pronti has no control whatsoever over the Content or Third Party Content, and is not responsible or in any way liable for their contents, including without limitation their accuracy, reliability, copyright compliance, legality, decency, or any other aspect of their content.

2.6. You agree that use of the Third Party Content by Pronti or Users will not constitute infringement of your intellectual property or a breach of this Agreement, and that Ponti shall have no liability whatsoever for any damages resulting from the similarity of Third Party Content to your Content. Pronti’s sole responsibility with respect to any conflict between Third Party Content and the Content shall be to comply with any legal orders obtained by you or the applicable third party pertaining thereto.

2.7. Pronti utilizes a third party service provider to host the Platform, and thus, due to the nature of the Services, information or data uploaded to the Services may be hosted on servers residing in jurisdictions other than Canada, over which Pronti has no direct control. By using the Services, you acknowledge that your Content will be subject to the terms of agreements respecting the hosting of data, and, during the period that they are hosted on international servers, subject to the laws of the jurisdiction in which those servers reside. Although Pronti has made efforts to verify that its agreements with such service providers are reasonably protective of its users’ data, and will be reasonably reliable for use in the Services, you acknowledge that Pronti has no liability for any acts or omissions of third parties in relation to such the third party services, the servers and the data stored on them. You therefore hereby release Pronti from all liability for any governmental or third party action taken in such jurisdictions with respect to such data (including your Content) and/or the servers on which such data resides, and therefore acknowledge that Pronti cannot guarantee the availability of the Services at any given time.

2.8. Pronti reserves the right to revoke service for any abusive conduct or fraudulent use of the Services and to cease the Services, temporarily or permanently, in the event that your use of the Services or the provision of the Services constitutes, in Pronti’s reasonable judgment, a threat to Pronti’s or any third party’s computer systems, networks, files, materials or other data.

3. Your Obligations

3.1. You hereby grant to Pronti, during the term of this Agreement, the following rights on a personal, exclusive, royalty free, fully paid up, and irrevocable basis, solely for the purposes of performing the Services:
(a) to use, copy, reproduce, execute, transmit, broadcast, perform, publish, display, maintain, modify, enhance, translate, decrypt, and convert into alternative forms the Content, Marks, or any part thereof for the purposes of incorporating the Content into the Software and for the purposes of promoting, marketing, distributing and providing access to the Content to Users; and
(b) to promote, market, distribute, export, import, and sublicense the Content solely as required in providing access to the Content to Users through the Application.
In exercising the foregoing rights, Pronti will take reasonable steps to ensure that the Content and Marks are not distorted or otherwise presented in a manner that misrepresents the original image on your Web Store.

3.2. You warrant that:
(a) You have the absolute right to provide the licenses in and to the Content and Marks contemplated in this Agreement;
(b) You have obtained all consents and permissions necessary from any third party in relation to any Marks, photographs, videos, or other likenesses, personal content, confidential materials, or intellectual property that may be present in the Content, permitting such materials to be used in the Services;
(c) The Content shall have no material inherent defects and shall not contain any intentionally harmful characteristics (such as viruses or Trojan horses) or any characteristics that, to the best of your knowledge, would pose a threat to, or negatively impact on, the Software or ability to provide the Services;
(d) You will not in any way use the Content or Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent, obscene or pornographic activities, any deceptive impersonation, any activities involving the exploitation of children, or any activities that violate any third party’s privacy rights or applicable law;
(e) You have the right and the authority to enter into this Agreement, to use the Services, and to provide Content to Pronti and Users, and the performance of this Agreement shall not breach any other agreement entered into by you; and
(f) You shall at all times observe and comply with the terms of this Agreement, and all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over the Content and/or Services or any part thereof, including without limitation any privacy laws and any laws and regulations designed to protect minors.

3.3. You agree that, in using the Services:
(a) You will not permit anyone other than yourself to obtain access to the Services (including by reselling or bundling the Services to provide to a third party as part of your own commercial offering), and will only use the Services in accordance with this Agreement and applicable law;
(b) You will ensure that any information that is provided to Pronti pursuant to this Agreement is true, accurate, current and complete;
(c) You will be solely responsible for all activities with respect to the Services undertaken by you, including your provision of any Content and your operation of your Web Store;
(d) You will not interfere with or in any manner compromise any of Pronti's security measures respecting the Software;
(e) You will cooperate with Pronti and provide information requested by Pronti to assist Pronti and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.

3.4. You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all equipment (such as computers and mobile devices) used in relation to your Web Store, including without limitation your internal network infrastructure, if any. In the event that Pronti receives any queries, comments or complaints respecting you, your Web Store or the Content, Pronti shall be entitled to direct all such queries, comments or complaints to you for direct response.

3.5. You agree to promptly and accurately report to Pronti any actual or apparent errors, problems, nonconformities or other difficulties in Services, along with any other information reasonably requested by Pronti to aid in resolving such errors, problems, nonconformities or other difficulties, and hereby consent to the collection, processing, transmission and disclosure of such information by Pronti for the purposes of Pronti’s internal use to improve the Services or other Pronti products or services.

3.6. You agree that any suggestions, bug reports or other communications respecting the functionality of the Software or Services that you transmit to Pronti by any means (each, a "Submission"), is considered non-confidential and may be disseminated or used by Pronti or any third party without compensation or liability to you for any purpose whatsoever. This provision does not apply to personal information that is subject to Pronti’s Privacy Policy.

4. Fees for Services

4.1. You agree to pay all fees and taxes (if applicable) in connection with the Services, as set forth in Pronti’s standard price list and in accordance with Pronti’s published payment policy, or as otherwise expressly agreed upon in writing between you and Pronti. Pronti reserves the right to modify such fees, upon reasonable notice, upon sixty (60) days’ written notice to you, and reserves the right to modify its standard price list and payment policies at any time.

4.2. To the extent required by Pronti for payment, you must:
(a) provide up-to-date, complete and accurate contact information, including your first and last name, your current billing address, your phone number and your valid email address; and
(b) provide up-to-date, complete and accurate payment information as required by Pronti or its third party payment processor (which may include a valid PayPal account or credit card information for a credit card that is valid and legally registered to you).

5. Privacy and Confidentiality

5.1. Any personal information will be handled in accordance with Pronti’s Privacy Policy. To view Pronti’s Privacy Policy, please visit the following link. Notwithstanding the foregoing, Pronti reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental authority, or as reasonably necessary to provide the Services to you.

5.2. By submitting any personal information to Pronti pursuant to this Agreement, including without limitation your name, address, and e-mail address, you consent to the collection, processing, transmission and disclosure of such information by Pronti for the purposes of Pronti’s provision of the Services and Pronti’s internal use, and specifically the purposes for which such information has been requested. Additionally, by agreeing to this Agreement, you are also providing your express consent to communications by Pronti (including e-mail communications, both marketing and informational) respecting the products and services of Pronti.

6. Intellectual Property Rights

6.1. You acknowledge that, as between you and Pronti, the Software is owned by Pronti or its third party licensors, who retain all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. In addition, other intellectual property laws (including patent laws) and treaties may protect the Software and Services. It is therefore your responsibility to fully comply with such laws in using the Services and Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you.

6.2. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software, the Services, or any part thereof. Your only rights to the Software, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.

6.3. Pronti acknowledges that, as between you and Pronti, you own the Content and retain all right, title and interest therein. Pronti’s only rights to the Content shall be those rights expressly licensed or granted to Pronti under this Agreement; Pronti does not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Content.

7. Disclaimer of Warranties

7.1. THE SERVICES AND SOFTWARE ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. PRONTI ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN ANY INFORMATION PROVIDED THROUGH THE SERVICES OR SOFTWARE. UNDER NO CIRCUMSTANCES WILL PRONTI BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE SERVICES OR THE SOFTWARE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF THE SERVICES AND ANY INFORMATION PROVIDED, AND USE OF THE SERVICES AND SOFTWARE IS SOLELY AT YOUR OWN RISK.

8. Limitation of Liability

8.1. The only type of damages that can be recovered against Pronti arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, arising from Pronti’s gross negligence or wilful misconduct. In no event shall the aggregate liability of Pronti exceed the amount paid by you for the portion of the Services that gave rise to the claim. PRONTI SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Software is to discontinue the use of such Software.

8.2. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PRONTI BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE PLATFORM OR SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, EVEN IF PRONTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

9. Indemnification

9.1. You agree to indemnify, defend and hold harmless Pronti, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your use of the Services or Software, your Web Store, and your Content, (b) any breach of this Agreement by you, (c) the infringement by you of any intellectual property or other right of any person or entity, or (d) your violation of any third-party rights or any applicable laws.

10. Termination

10.1. Either party shall be entitled to terminate this Agreement for convenience upon thirty (30) days prior written notice to the other party. Upon any termination of this Agreement, you must uninstall the Plug In immediately, and Pronti will cease making your Content available through the Services.

10.2. Pronti may terminate this Agreement and/or immediately cease to provide the Services without any liability whatsoever if Pronti is prevented from providing any portion or all of any Services due to the acts or omissions of you or any third party, or by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require Pronti to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.

10.3. Without limiting other remedies, Pronti may limit your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) Pronti is unable to verify or authenticate any information you provide; or (c) Pronti believes that your actions may cause financial loss or legal liability for you, other users or Pronti.

10.4. Pronti reserves the right to investigate suspected violations of this Agreement. You hereby authorize Pronti to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities, and other content providers in order to enforce the terms and conditions of this Agreement.

10.5. The above-described actions are not Pronti’s exclusive remedies and Pronti may take any other legal, equitable or technical action it deems appropriate in the circumstances. Pronti will not have any liability to you or any third party in relation to the termination of this Agreement for any reason whatsoever.

11. General Provisions

11.1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.

11.2. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada.

11.3. Each party shall perform its obligations hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the parties. Except to the extent expressly authorized in writing by the other party or a specific User, neither party shall act nor purport to be acting as the legal agent of the other party or any User, nor enter into any agreement on behalf of the other party or any User, or otherwise bind or purport to bind the other party or any User in any manner whatsoever.

11.4. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.

11.5. If either party is delayed in or precluded from complying with any provision of this Agreement by force majeure event beyond such party’s reasonable control (whether or not foreseeable), including but not limited to fire or explosions, lockouts, strikes, slowdowns, labor shortages or disturbances, acts of God, floods, hurricanes, tornadoes, earthquakes, unusually severe weather, natural disasters, war, insurrection, terrorism, riots, acts of the public enemy, acts of governmental authority, embargo, epidemics, or quarantine restrictions, such delay in compliance or non-compliance will be excused.

11.6. Except as expressly permitted herein, neither party shall assign or subcontract or purport to assign or subcontract any of its rights or obligations under this Agreement without first obtaining the other party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon the parties hereto and their respective lawful successors and permitted assigns.

11.7. Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, courier or facsimile addressed to each party to the address as advised in writing.

11.8. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.

11.9. You acknowledge and agree that the Services and Software have been developed at significant cost and has significant commercial value to Pronti, and that inappropriate use of the Services or Software could cause Pronti irreparable harm. You therefore agree that Pronti will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of this Agreement without posting bond or by posting bond at the lowest amount required by law.

11.10. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Pronti to show your acceptance of this Agreement and/or your agreement to access and use the Services and Software), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Software. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

11.11. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.

12. Contact

12.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to Pronti or its business, please contact Pronti at:

or by mail using the details provided below:
 
Mila Banerjee
CEO
Pronti AI Inc.
199 – 151 Charles St. W
Kitchener, ON Canada N2G 1H6

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Pronti AI Inc. | c/o Velocity | 151 Charles St W, Suite 199 | Kitchener, ON Canada