Terms of Service

1. APPLICATION OF TERMS

1.1 – These Terms apply to your use of the Service.  By clicking “I agree to MarketplaceMaximizer’s terms of service”:

1. 1. you agree to these Terms; and
   2. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2 – If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.

2. CHANGES

2.1 – Subject to clause 2.3:

1. we may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website; and
2. unless stated otherwise, any change takes effect from the date set out in the notice.

2.2 – You are responsible for ensuring you are familiar with the latest Terms.

2.3 – If a change to these Terms is detrimental to you, you may terminate these Terms and your right to access and use the Service on no less than 10 days’ notice, provided the notice is received by us before the date that the change takes effect.  If you give notice under this clause 2.3, the previous version of the Terms will apply to your access to and use of the Service during the notice period.  If you do not exercise your termination right under this clause, and you continue to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms

2.4 – These Terms were last updated on [30/4/2024].

3. INTERPRETATION

In these Terms:

“Account” is defined as the Merchant’s Account on the Publishing Destination. A single Account is linked to a username and password or an ID. A Merchant can have multiple Accounts on Publishing Destinations. An Account is linked to a single country

“Account Data” is information required from the Merchant in order to deliver the Cresco Data Services. This includes Customer and company information, Publishing Destination details and log-ins

“Affiliate” means, in relation to a party, any other entity which directly or indirectly Controls, is directly or indirectly Controlled by or is under direct or indirect common Control with, that party from time to time.

“Business Day” as used in this Agreement means Monday to Friday, excluding gazetted public holidays in Australia and Singapore.

“Commerce Data” means the required range of data types that can include but not limited to product, price, stock, order, order status updates, shipping labels and customer data and Personal Information that is required to deliver The Cresco Data Services.

“Confidential Information” means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service.  Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Software. Your Confidential Information includes the Data.

“Cresco” or “Cresco Data” refers to the Services provider and identified as Cresco Data Australia Pty Ltd. (ABN:13 643553388) with address at Level 1, 68 Waterloo Road, Macquarie Park NSW 2113 (if You are in Australia ) or Cresco Data Pte Ltd (UEN: 201424298K) with address at 8 Marina Boulevard, #05-02, Marina Bay Financial Centre Singapore 018981 (If You are outside of Australia).

“Cross Sync Event” is an action where data is enriched from one or many different source connectors to send to one Publishing Destination connector.

“Customer” means a person or business that has subscribed to the Services provided by Cresco

“Customer Data” is information required from the Customer in order to deliver the Cresco Data services. This includes Customer and company information. Publishing Channel details and log-ins

“Customer Platform” means the Customer Platform that enables brands, retailers, marketplaces and manufacturers (“Merchants”) to manage their products and stock across multiple Publishing Destinations

“Data” means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.

“Documentation” means any and all documents, data, specifications, statistics, reports, manuals, diagrams or other materials provided or otherwise made available by Cresco Data to Customer or its Users in connection with the Platform or Services.

“Event” is the creation or update of data based on an update from a source connector to publish to a Publishing Destination connector. This could be for any Commerce Data such as products, stock, orders and order updates.

“Fees” means the applicable fees set out on our pricing page on the Website at Marketplace Maximizer  or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 7.3.

“Force Majeure” means an event that is beyond the reasonable control of a party, excluding:

• an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
• a lack of funds for any reason.

“GMV” or gross merchandise volume means listing price shown on the website, multiplied by the number of items sold. This includes tax and discounts but excludes vouchers and shipping. This is also considered as Gross Revenue

“Health Dashboard” is a feature that showcase your product and order performance across each Marketplace, with key actions to remove errors.

“Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

“Intellectual Property Right” means: (a) copyright, patents, database rights and rights in trademarks,  designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.

“Marketplace” is an e-commerce site that connects sellers with buyers. Where sellers sync products and stock to receive orders and send order updates to buyers.

“Marketplace Mapper” is a feature that streamlines the mapping of categories and attributes to effortlessly list your products on any Marketplace you sell on with a single, efficient process.

“Marketplace Maximizer Platform (Platform)” means Cresco’s cloud-based commerce software platform that allows The Customer and Merchants to automate, map and synchronize the transmission of Product and Order Data to and from Publishing Destinations, and all related Services.

“Marketplace Maximizer Rules Builder” is a self-service feature that allows Customers to create rules based on conditions to enrich data to a Publishing Destination Connector.

“Merchants” are the sellers: brands, retailers and manufacturers that use The Customer Platform and may directly or indirectly utilise the Platform as a Service as part of the Merchant’s business arrangement with The Customer.

“Objectionable” includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

“Order Data” Order data is the data that is sent from a Publishing Destination surrounding the purchase of a product. This includes but not restricted to: Product ID, sale price RRP, shipping label information

“Order” An Order is defined as the purchase record of a product or multiple products sent from a Publishing Destination. This includes but not restricted to orders that are fulfilled, cancelled or returned.

“Partner” refers to the partners or Systems Integrators that on-board Merchants to The Customer’s Platform

“Party” includes that party’s permitted assigns.

“Personal Information” takes its meaning from the applicable Data Protection Legislation which includes GDPR. Any reference to the term “personal data” is a reference to Personal Information for the purposes of this Agreement. Examples include      name, address, email address, or phone number. Personal Information does not include information that has been anonymised such that it does not allow for the identification or re-identification of specific individuals.

“Product Data” means all information and materials related to Merchants’ products and brands that are uploaded, processed or otherwise stored in the Platform, or that The Customer directs Cresco to collect on its behalf of its Merchants, including image files, text, templates, product descriptions, order data, trade and service marks and other related information

“Publishing Destination” means the third party commerce platforms, marketplaces, commerce sites, search engines, shopping sites, social commerce channels, digital ad networks and other third party channels supported by Cresco from time to time that are the subject of the Services.

“Rule Builder Event” is any update from the source connector or republish of data within the CrescoData Management Portal which has a CrescoData Rules Builder rule that enriches the information sent to a Publishing Destination connector. This could be one or many rules applied to the same record.

“Services” means collectively, the Services available via the Platform and associated API access modules

“Software” means the software owned by us and that is used to host the Marketplace Maximizer Platform.

“Source Data” The Source Data is defined as the platform, website, system or files where Cresco Data obtains the Commerce Data. This could consist of The Customer Platform or a combination of The Customer Platform and other Sources

“Start Date” means the date that you set up an account.

“Taxonomies” relates to a Marketplace categories, category attributes and attributes required to list products.

“Terms” means these terms titled Marketplace Maximizer Terms of Use.

“User” means Customer’s directors, officers, employees, contractors and any other end users who are issued a user login and password pursuant for access and use of the Marketplace Maximizer Platform.

“Underlying Systems” means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.

We, Us or Our means Cresco / Cresco Data.

“Website” means the internet site at Marketplace Maximizer, or such other site notified to you by us.

“You or Your” means Customer or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

4. PROVISION OF THE SERVICE 

4.1 – We must use reasonable efforts to provide the Service: 

1. in accordance with these Terms; 
2. exercising reasonable care, skill and diligence; and 
3. using suitably skilled, experienced and qualified personnel. 

4.2 – Our provision of the Service to you is non-exclusive.  Nothing in these Terms prevents us from providing the Service to any other person. 

4.3 – Through the use of web services and APIs, the Service interoperates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you.  To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation. 

4.4 – Despite our commercially reasonable efforts to provide uninterrupted Service, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  We will use reasonable efforts to publish on the Website in advance details of any unavailability.

5. YOUR OBLIGATIONS

5.1 – You and your personnel must:

1. use the Service in accordance with these Terms solely for:
   1. your own internal business purposes; and
   2. lawful purposes and
2. not resell or make available the Service to any third party, or otherwise commercially exploit the Service.

5.2 – When accessing the Service, you and your personnel must:

1. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
2. correctly identify the sender of all electronic transmissions;
3. not attempt to undermine the security or integrity of the Underlying Systems;
4. not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
5. not attempt to view, access or copy any material or data other than:
   1. that which you are authorised to access; and
   2. to the extent necessary for you to use the Service in accordance with these Terms; and
6. neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

5.3 – Without limiting clause 5.2, no individual other than a User may access or use the Service.  You may authorise any member of your personnel to be a User, in which case you must provide us with the User’s name and other information that we reasonably require in relation to the User.  You must procure each User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you. A breach of any of these Terms by your personnel (including, to avoid doubt, a User) is deemed to be a breach of these Terms by you.

5.4 – Youare responsible forprocuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service. 

6. DATA

6.1 – You acknowledge that:

1. we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
2. to the extent that this is necessary but subject to clause 9, we may authorise a member or members of our personnel to access the Data for this purpose.

6.2 – You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.

6.3 – You acknowledge and agree that:

1. we may:
   1. use Data and information about your and your end users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data);
   2. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
   3. supply Analytical Data to third parties;
2. our rights under clause 6.3Aii and iii above will survive termination or expiry of these Terms; and
3. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

6.4 – You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of any applicable privacy law.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

6.5 – While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.

6.6 – You acknowledge that, notwithstanding the security precautions deployed by us, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform and Commerce Data. Whilst we cannot and do not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet, we will exercise reasonable commercial efforts to ensure data integrity and compliance with relevant security and privacy regulations (such as GDPR) where appropriate.

6.7 – You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

7. FEES

7.1 – Fees comprise:

1. Monthly subscription fee USD$69
2. Monthly variable fee at 1% of GMV

7.2 – Fees are to be paid by credit/debit card set-up on the Stripe payment platform.

7.3 – We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms (in accordance with clause 12) and your right to access and use the Service before the effective date of the Fee increase.  If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.

8. INTELLECTUAL PROPERTY

8.1 – Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

8.2 – Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

8.3 – To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service.

8.4 – If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
2. we may use or disclose the feedback for any purpose.

8.5 – You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service.  Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

9. CONFIDENTIALITY

9.1 – Each party must, unless it has the prior written consent of the other party:

1. keep confidential at all times the Confidential Information of the other party;
2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1A and 9.1B.

9.2 – The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:

1. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
2. required by law (including under the rules of any stock exchange);
3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
4. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
5. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

10. WARRANTIES

10.1 – Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.

10.2 – To the maximum extent permitted by law:

1. our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to USD$1,000; and
2. we make no representation or warranty concerning the quality of the Service and do not promise that the Service will:

1. 1. meet your requirements or be suitable for a particular purpose
   2. be secure, free of viruses or other harmful code, uninterrupted or error free.

10.3 – You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:

1. to the maximum extent permissible by law, any applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
2. it is fair and reasonable that the parties are bound by this clause 10.3.

10.4 – Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms.  However, our liability for any breach of that condition or warranty is limited, at our option, to:

1. supplying the Service again; and/or
2. paying the costs of having the Service supplied again.

11. LIABILITY

11.1 – Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no event exceed an amount equal to the Fees paid by you relating to the Service in the previous one month or USD$1,000, whichever is lower.  The cap in this clause 11.1 includes the cap set out in clause 10.2a.

11.2 – Neither party is liable to the other under or in connection with these Terms or the Service for any:

1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
2. consequential, indirect, incidental or special damage or loss of any kind.

11.3 – Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:

1. personal injury or death;
2. fraud or wilful misconduct; or
3. a breach of clause 9.

11.4 – Clause 11.2 does not apply to limit your liability:

1. to pay the Fees;
2. under the indemnity in clause 6.6; or
3. for those matters stated in clause 11.3a to 11.3c.

11.5 – Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

11.6 – Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.

12. TERM, TERMINATION AND SUSPENSION

12.1 – Unless terminated under this clause 12, these Terms and your right to access and use the Service:

1. starts on the Start Date; and
2. continues until it is terminated by either party in accordance with clause 12.2

12.2 – Either party may immediately terminate these Terms and your right to access and use the Service without prior notice to the other party.

12.3 – Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

12.4 – On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.

12.5 – No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

12.6 – Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:

1. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
2. used, or attempted to use, the Service:
   1. for improper purposes; or
   2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
3. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
4. otherwise materially breached these Terms.

13. GENERAL

13.1 – Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

13.2 – No person other than you and us has any right to a benefit under, or to enforce, these Terms.

13.3 – For us to waive a right under these Terms, that waiver must be in writing and signed by us.

13.4 – Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

13.5 – If we need to contact you, we may do so by email or by posting a notice on the Website.  You agree that this satisfies all legal requirements in relation to written communications.  You may give notice to us under or in connection with these Terms by emailing finance@crescodata.com

13.6 – These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of New South Wales, Australia if You are in Australia or else with the laws of Singapore if You are outside of Australia. Each party submits to the non-exclusive jurisdiction of the Courts of New South Wales, Australia or Singapore (as may be applicable) in relation to any dispute connected with these Terms or the Service.

13.7 – If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

13.8 – These Terms relating to the Service supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.

13.9 – You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.