Last Updated: January 29, 2021
Terms
These Terms of Use, together with our Privacy Policy and Acceptable Use Policy ("Terms") set out the terms and conditions for your use of the Vertical Services. In using the Vertical Services, you acknowledge that you have read, understood, and have agreed to these Terms, including on behalf of any person or entity for whom you are using the Vertical Services.
From time to time, we will need to update these Terms and we encourage you to check them regularly so that you stay informed. If you do not agree to any of these Terms, including any updates, then you must cease use of the Vertical Services.
Definitions
To help you read and understand these Terms, we've set out definitions of some key terms below:
"Customer" means the person or entity who registers to use the Vertical Service by creating a Vertical account. If an individual creates an account on behalf of their employer, then the employer will be deemed to be the Customer, and will be bound by these Terms.
"Authorised User" means any person or entity that a Customer authorises to use the Vertical Service on its behalf. This includes the Primary Admin (as nominated by the Customer) and other employees and personnel of the Customer who are authorised to use the Vertical Services on the Customer's behalf, but also includes support partners and other third parties with whom a Customer shares its Vertical account details (and for whose conduct the Customer is responsible).
"We" or "Vertical" means Vertical Retail Limited, and any of our related companies.
"Vertical Service"means Vertical's point of sale and inventory management products and services, and any features, technologies or functionality provided by those products or services, offered by us from time to time, including the Vertical Register and Vertical POS applications ("Apps") and Verticalhq.com ("Website"). Your use of the Vertical Service will also be subject to any allowances and/or limits that apply to the Vertical plan which you've purchased.
"You" means the Customer and (where the context permits) includes any Authorised Users.
Account information
You must be 18 years or older in order to access and use the Vertical Services. You agree to provide true, accurate, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, accurate, current and complete. We will use that information to contact you from time to time (including by sending you notices as required by these Terms relating to, for example, suspension of your account or changes to your plan), so it's important that you keep all of your contact details, and those of your Primary Admin and other Authorised Users, up to date.
You represent and warrant that you are not located in any U.S. embargoed countries or on any U.S. Government list of prohibited or restricted parties.
Use of your account
Vertical grants you a limited, non-exclusive, non-transferable, revocable licence to use the Vertical Services (subject to your account type) for the purposes of with the Customer's business and in accordance with these Terms.
You are responsible for any conduct or activity undertaken in your account (whether online or by calling our contact centre), including any changes made, and the input or modification of or access to any data or information in your account, by any of your Authorised Users. In particular, our primary point of contact with you will be your nominated Primary Admin, who will be considered as authorised by you to make changes, give instructions and receive notices on your behalf.
If:
you are an Authorised User using or accessing the Vertical Services for the benefit of a Customer, then you are responsible for ensuring you have the right to do so from the relevant Customer (including all necessary authorisations to access, amend or remove data, or make changes to the Customer's account); or
you are a Customer, then you are responsible for authorising use or access of the Vertical Services by any Authorised User and will indemnify Vertical against any claims or loss relating to any Authorised User's use of or access to your account.
We will have no responsibility to anyone other than the Customer, and the Vertical Services and these Terms are intended solely for the benefit of the Customer and not for any Authorised User(s).
Cancellation of accounts
We can cancel or suspend your account at any time on written notice to you. Such termination will be effective at the end of your then-current paid-up subscription period. We may also cancel or suspend your account immediately if, in our sole discretion:
you have committed a material or persistent breach of these Terms or any other terms applying to your use of the Vertical Services;
we consider that provision of the Vertical Services, or use of them, in your territory or jurisdiction will or is likely to breach any applicable law;
we decide to withdraw the Vertical Services from your territory or jurisdiction altogether; or you fail to comply with any limits or restrictions (eg, on the number of users, registers or outlets) applicable to your Vertical plan.
You are entitled to cancel your account with Vertical at any time. You may cancel your account by following the prompts when you are logged into your account through the Apps or the Website. If you cancel your account before the end of your current paid up period, your cancellation will take effect at the end of your current paid up period.
If your account is cancelled, your account will be deactivated and all of your rights granted under these Terms will immediately come to an end (except to the extent that it is necessary for them to continue in respect of our ongoing storage of your data up to the date of permanent deletion). We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is exported, backed-up or replicated before cancellation.
Fees and taxes
The fees charged for use of the Vertical Services are set out on the Website (or as notified to you in the case of some exclusive plans) ("Fees") and are subject to change. We can change the Fees, and/or introduce new pricing packages and terms, at any time by giving you 30 days' prior notice (by email to your Primary Admin or by displaying a message the next time you use the Vertical Services). The new Fees or pricing/package terms will apply to you from expiry of that notice, unless you choose to cancel your account before the changes take effect. Also, the new Fees will apply to you immediately if you choose to change your plan/package (or if you reactivate your plan after cancellation). Fees are charged in advance on a monthly or annual basis and are non-refundable, including if you only use part of a month or year's subscription for the Vertical Services. If you do not want your subscription to renew at the end of your then-current paid-up subscription period, you must cancel your account before the end of your then-current paid-up subscription period. Unless required by law, we will not provide refunds in connection with the Vertical Services. A valid credit card number is required for paying all Fees.
If you are late in paying any Fees, we may charge a late fee of the greater of CAD$20 (excluding GST, if any) or up to 1.5% of the unpaid Fees.
If you are carrying out a free trial of the Vertical Services (as offered on the Website or the Apps), the free trial will begin on the day that your account is opened and end at the end of the published trial period. If you wish to continue to use the Vertical Services at the end of the free trial period, you will need to provide valid credit card details (unless you choose to use any free Vertical Services which we may offer from time to time). If you choose not to continue with the Vertical Services, then your account (and all data associated with it) will be deleted after the end of your free trial.
Unless otherwise stated, Fees are exclusive of all taxes, and you are responsible for any taxes that may arise. You indemnify and hold Vertical harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest. If you are required to withhold or deduct tax from the Fees, you will pay Vertical such additional amounts as are necessary to ensure receipt of the full amount which would have been received but for the deduction.
If you are located outside of Canada, then payment of your Fees could incur additional bank fees at the discretion of your bank. Bank fees may be charged for currency conversion and international settlement; and your charge may still be subject to additional fees even if you are being charged by Vertical in your local currency. If your credit card statement charge differs from your Vertical invoice, please contact your bank in the first instance. Vertical is not liable for any additional bank transaction fees that may be charged.
You may upgrade or downgrade your account at any time
You may upgrade or downgrade your account (for example, from Single Store to Multi-Store, or from Single Store to Start-Up) at any time by following the prompts when you are logged into your account.
The upgrade or downgrade will become effective immediately. If you upgrade or downgrade your account, the balance already paid for the rest of the period will be credited to your account. We will then immediately charge your credit card for any net amount due as a result of the upgrade or downgrade. This amount will be prorated, and based on the remaining time for your current period.
Downgrading your account may cause the loss of content, features, or capacity of your account, and reduce the number of users, registers and/or outlets you can use or process. If you choose to downgrade your account, Vertical does not accept any liability for the resulting loss of data, content, features or capacity.
Plan Limits and reasonable use
The Vertical Service is available in a range of packages/plans, giving you options including in relation to the number of outlets, registers and users you can have, the features and services you have access to, and the Fee you pay, as described on our Website from time to time (or as notified to you, in the case of some exclusive plans). We may update those plan limits at any time (eg, by increasing, reducing or removing limits) by updating the plan descriptions on our Website (or as notified to you, in the case of some exclusive plans). You'll be expected to comply with the updated plan limits from the next time you use the Vertical Service. You agree that we may use information generated by your use of the Services (eg, outlets and revenue) for the purposes of determining the most appropriate plan and pricing for you.
We may ask you to upgrade your Vertical account to a new plan if you exceed the limits that apply to your plan at any time.
We also reserve the right to suspend or restrict your account or your use of the Vertical Service, or disable any third party integrations you have, where we believe that your use isn't fair or reasonable or that it may cause degradation of the Vertical Services to other users. This includes circumstances where your use (or integration of your account with a third party) is creating a security or availability risk for Vertical or our other customers, is impacting (or may impact) the stability or performance of our systems, or is requiring disproportionate resource to deliver (eg, in terms of storage or processing requirements, support requests or helpdesk queries).
If you're using a free plan, then in addition to the other terms and conditions set out in these Terms, there are some other conditions that apply to you:
Free plans are subject to published maximum usage period (which may change from time to time). After the published maximum usage period, you may be asked if you want to cancel your account or upgrade to a paid plan.
If you don't use or log in to your Vertical account for six (6) months, then we may treat your account as "inactive" and permanently delete your account (and all data associated with it) on 30 days' notice to you.
Vertical Services are provided "as is"
The Vertical Services are provided on an "as is" and "as available" basis, and your use of them is at your sole risk. In particular, it is your sole responsibility to ensure that your use of the Vertical Services complies with any laws or regulations applicable to you and your business, and allows you to meet any legal obligations you might have. Such laws might include requirements regarding the retention or storage location of accounting, taxation and/or transaction records. We make no representation or warranty regarding your ability to comply with laws applicable to you when you use the Vertical Service.
We will try to promptly address (during normal business hours) all technical issues that arise in connection with the Vertical Services.
We do not warrant that: (a) the Vertical Services will meet your specific requirements; (b) the Vertical Services will be uninterrupted, timely, secure, or error-free; (c) the Vertical Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Vertical Services will meet your expectations; or (e) any errors in the Vertical Services will be corrected.
You acknowledge that Vertical may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Vertical Services. The acts and omissions of those third party suppliers may be outside of Vertical's control, and Vertical does not accept any liability for any loss or damage suffered as a result of any act or omission of any third party supplier, save as otherwise expressly set out in the Agreement or in writing between the parties.
On behalf of itself and such third party suppliers, Vertical excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.
From time to time, we may add, make changes to or remove altogether features or functionality of the Vertical Services. If you're using an App, you may need to install a new or updated version before you can receive the benefit of those changes. We may also decide to cease providing all or some of the Vertical Services at any time, and nothing in these Terms is to be taken as a guarantee that the Apps or any Vertical Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the Vertical Services, or the Apps or any version of them.
Our liability is limited
To the maximum extent permitted by law, Vertical shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data or other intangible losses (even if Vertical has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, or alteration of, your communications or data; (d) statements or conduct of any third party regarding the Vertical Services; or (e) any other matter relating to the Vertical Services.
In any case, Vertical's maximum aggregate liability under or in connection with these Terms or your use of the Vertical Services is limited to the amount of Fees paid by you in the past 12 months.
You are responsible for your use of the Vertical Service and you indemnify us
You are responsible for all activity that results from use of the Vertical Services through your account. You are responsible for maintaining the security of your account and password. Vertical will not be liable for any loss or damage that may result from any failure to keep User names and passwords secure.
You indemnify Vertical against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Vertical may incur or suffer as a result of use of the Vertical Services through your account or as a result of your failure to comply with these Terms.
Reasonable use policy
You agree to use the Vertical Services in a reasonable way (including, to avoid doubt, if you have subscribed for an 'unlimited' account). If we determine that your use of the Vertical Services is not reasonable or that your use is causing degraded performance of the Vertical Services for you or for other Users, we may impose limits on your use of the Vertical Services. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.
Limits on your use of the Vertical Services may include (but are not limited to) the quantities and volumes of the following parameters, per retailer: (a) storage required to host and backup retailer data; (b) sales transactions per calendar month; (c) API (application programming interface) calls per five (5) minute period; (d) page views per five (5) minute period; (e) bandwidth usage per twenty four (24) hour period; (f) support tickets opened per calendar month; or (g) outlets, registers, users, products and customers.
Intellectual property
You agree that Vertical owns all of the intellectual property rights existing in the Vertical Services. You agree not to challenge or do anything inconsistent with such ownership. You may not publish or use Vertical's brand, branding or logos except with Vertical's prior written consent.
You grant Vertical a royalty-free, irrevocable, perpetual licence to use for our business purposes (including for product improvement, research and development, data analytics and other legitimate commercial purposes) information and/or data collected by Vertical through your use of the Vertical Services (provided that we aggregate or anonymise any information or data which you have submitted or inputted into the Services that we process on your behalf). Other than this right, Vertical claims no intellectual property rights in relation to the information or content you input into the Vertical Services.
You may provide us with comments, feedback or suggestions on Vertical Services, and you agree that we will be free to use, modify and incorporate such suggestions without any obligation to you.
Data protection
We will maintain appropriate technical and organizational measures to protect the security of the data or content that you input into the Vertical Services.
You are responsible for complying with all applicable data protection laws in respect of your use of the Vertical Services and with regard to any instructions you issue to Vertical with regard to the processing of personal data you provide to Vertical through the Services. In particular, you must ensure you have properly informed and obtained all necessary rights, authorizations or consents from any end-users, consumers, personnel or other individuals to whom the data relates, to enable Vertical to lawfully access their personal data under these Terms and to process their personal data outside of their country of residence.
You shall not provide (nor permit any User to provide) any Sensitive Data to Vertical. For the purpose of these Terms, "Sensitive Data" shall mean data revealing a person's racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetics, biometrics, health data, data about sex life or sexual orientation, or data about criminal convictions and offences.
Third Party Integration Partners
You acknowledge that in the provision of certain optional features and services, Vertical, on receipt of instructions from you, may be required to transfer certain data held in your Vertical account to, and otherwise interact with, third party partners who provide services that you have elected to integrate with the Vertical Services ("Third Party Integration Partners").
You agree that if and to the extent such data transfer occurs, it is on your express election and instruction by virtue of you agreeing to use the Third Party Integration Partner's services. You are solely responsible for compliance with all applicable laws (including applicable data protection laws) in respect of the transfer of the data by Vertical to the Third Party Integration Partner, and for entering into separate contractual agreements with the Third Party Integration Partner. Vertical is in no way liable for the provision of the services or the handling and processing of any data by the Third Party Integration Partner. For the avoidance of doubt, such third parties are not Vertical's subprocessors for data protection purposes.
Disputes
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of and venue in the courts of the Province of British Columbia, in the judicial district of Vancouver. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens in connection with any action brought in the foregoing courts. If Vertical prevails in any action or proceeding (including for collection) under this Agreement, then Vertical shall be entitled to recover from Customer, in addition to all other relief, its reasonable attorneys' and other experts' fees and expenses incurred with respect to such action or proceeding. Any claim, dispute or controversy (whether in contract or tort, pursuant to stature or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this Agreement; (b) the services or equipment provided to Vertical; (c) oral or written statements, or advertisements or promotions relating to this Agreement or to the services or equipment; or (d) the relationships that result from this Agreement (collectively the "Claim") will be determined by arbitration to the exclusion of the courts, except that each party retains the right to seek injunctive or other equiptable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Customer agrees to waive any right Customer may have to commence or prticipate in any class action or representative proceeding against Vertical related to any Claim and, where applicable, Customer also agrees to opt out of any class or representative proceedings against Vertical. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in British Columbia that are in effect on the date of the notice.
General
We work with a number of partners, value added resellers and other third parties to promote, market and integrate other products and services with the Vertical Services. In some cases, we may receive a commission from those partners and third parties for referring our customers to them, or we may pay a commission to third parties where customers are referred to us.
If we don't insist that you perform any of your obligations under these Terms, or if we do not immediately enforce our rights against you, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.
The Vertical Services are provided for use in business, so you are not a consumer. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Consumer Guarantees Act 1993 and in the Fair Trading Act 1986) do not apply to the Vertical Services, these Terms or our relationship with you.
Each clause in these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them. These Terms shall be governed by the laws of the State of Washington, and (subject to the 'Disputes' section above) you submit to the exclusive jurisdiction of and venue in the courts of the Province of British Columbia for any matter or dispute arising in relation to these Terms.
