Last updated: January 15, 2025
These Terms of Service ("Terms") constitute a legally binding agreement between you ("Customer," "you," or "your") and Mercately, Inc. ("Mercately," "we," "us," or "our"), a Delaware corporation with its principal place of business at 1000 Brickell Avenue, Suite 715, Miami, FL 33131, governing your access to and use of the Mercately website at mercateliy.com (the "Site") and the Mercately e-commerce marketing platform and associated services (collectively, the "Services").
Please read these Terms carefully before accessing or using the Services. By creating an account, clicking "I agree," subscribing to a plan, or otherwise accessing or using the Services, you indicate that you have read, understood, and agree to be bound by these Terms and our Privacy Policy, which is incorporated herein by reference. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these Terms. If you do not agree to these Terms, do not access or use the Services.
You must be at least 18 years of age to access or use the Services. By agreeing to these Terms, you represent and warrant that: (a) you are at least 18 years of age; (b) you have the legal capacity to enter into a binding contract; (c) you are not barred from accessing the Services under applicable law; and (d) if you are acting on behalf of an organization, you have the authority to bind that organization to these Terms.
The Services are designed for commercial use by e-commerce businesses, marketing professionals, and digital agencies. The Services are not intended for personal, family, or household consumer use. Mercately reserves the right to refuse registration or access to the Services to any person or entity for any reason at our sole discretion.
To access the full features of the Platform, you must register for an account. When registering, you agree to provide accurate, current, and complete information and to keep this information updated throughout the duration of your account. You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account.
You agree to immediately notify us at support@mercately.com if you become aware of any unauthorized use of your account or any security breach. Mercately will not be liable for any loss or damage arising from your failure to comply with this section. You may not share your account credentials with others or allow unauthorized persons to access the Services through your account. Each subscription plan covers a defined number of users; additional user seats must be purchased at the applicable rate.
We reserve the right to disable or terminate any account that we reasonably believe has been compromised or that is being used in violation of these Terms, without prior notice and without liability to you.
The Services are offered on a subscription basis. Mercately offers multiple subscription tiers (Starter, Growth, Pro, and Enterprise) with varying features, usage limits, and pricing as described on our pricing page at mercateliy.com/price.html. By selecting a subscription plan, you agree to the features and limitations of that plan. We reserve the right to modify the features included in each plan with reasonable advance notice.
Subscription fees are billed in advance on a monthly or annual basis, depending on the billing cycle you select at sign-up. All fees are quoted and charged in US Dollars unless otherwise indicated. Payment is due on the first day of each billing cycle. We use Stripe to process all payments; by providing payment information, you authorize us to charge the applicable fees to your payment method on a recurring basis.
If your payment fails, we will notify you and attempt to retry the charge. Your account may be suspended if payment remains outstanding for more than 7 days after the due date. During a suspension period, you will not be able to send campaigns or access certain platform features, but your data will be preserved. Accounts that remain delinquent for more than 30 days may be terminated and data deleted in accordance with our retention policies.
You may cancel your subscription at any time through your account settings or by contacting support@mercately.com. Cancellations take effect at the end of the current billing period; you will retain access to the Services through the end of the paid period. We do not provide prorated refunds for partial billing periods, except where required by applicable law or in cases of verified billing errors.
Annual plan customers who cancel within 14 days of initial payment ("cooling-off period") are eligible for a full refund. Annual plan customers who cancel after 14 days do not receive a refund for the remaining unused portion of the annual term. Monthly customers may cancel at any time and will not be billed for subsequent months.
We reserve the right to modify our subscription pricing with at least 30 days' advance notice. Price changes will not affect your current billing period. If you continue to use the Services after a price change takes effect, you will be deemed to have accepted the new pricing.
You agree to use the Services only for lawful purposes and in compliance with all applicable laws and regulations, including without limitation the CAN-SPAM Act, CASL (Canada's Anti-Spam Legislation), the GDPR, the CCPA, and all applicable telemarketing laws and regulations governing email and SMS marketing. You represent and warrant that you have obtained all necessary consents from the recipients of any marketing communications you send using the Services.
You agree NOT to use the Services to:
Violation of this Acceptable Use Policy may result in immediate suspension or termination of your account without refund. Mercately reserves the right, but does not assume the obligation, to monitor your use of the Services for compliance with these Terms.
You retain full ownership of all data you upload, import, or otherwise submit to the Services, including your customer lists, campaign content, store data, and all other information ("Customer Data"). You grant Mercately a limited, non-exclusive license to process Customer Data solely as necessary to provide and improve the Services in accordance with these Terms and our Data Processing Agreement (DPA).
To the extent that you are a data controller and Mercately processes personal data on your behalf as a data processor under applicable data protection law (including the GDPR), the parties agree to the terms of Mercately's Data Processing Agreement (DPA), available at mercateliy.com/legal/dpa.html, which is incorporated into these Terms by reference.
You are solely responsible for the accuracy, legality, and appropriateness of all Customer Data you submit to the Services. You represent and warrant that: (a) you have obtained all necessary rights, consents, and permissions to provide Customer Data to us and to use it as contemplated by these Terms; and (b) the processing of Customer Data by Mercately as described in these Terms will not violate any applicable law or infringe any third-party rights.
The Services, including all software, algorithms, AI models, designs, text, graphics, logos, and other content created by Mercately, are protected by copyright, trademark, patent, trade secret, and other intellectual property laws. Mercately retains all right, title, and interest in and to the Services and all related intellectual property. Nothing in these Terms grants you any ownership interest in the Services.
The Mercately name, logo, and all product names are trademarks of Mercately, Inc. You may not use these marks without our prior written permission. All other trademarks referenced in the Services are the property of their respective owners.
Subject to your compliance with these Terms and payment of all applicable fees, Mercately grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Services during your subscription term solely for your internal business purposes. This license does not include the right to sublicense or resell access to the Services.
If you provide Mercately with any feedback, suggestions, or ideas regarding the Services ("Feedback"), you grant Mercately a perpetual, irrevocable, worldwide, royalty-free license to use, incorporate, and commercialize such Feedback in any way without restriction or compensation to you.
Each party may disclose to the other certain confidential or proprietary information in connection with the Services ("Confidential Information"). Each party agrees to: (a) keep the other party's Confidential Information confidential using the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; (b) use the other party's Confidential Information only for the purposes of performing its obligations or exercising its rights under these Terms; and (c) not disclose the other party's Confidential Information to any third party except as expressly permitted by these Terms or with prior written consent.
These obligations do not apply to information that: (a) is or becomes publicly available through no fault of the receiving party; (b) the receiving party already knew when it was disclosed; (c) was lawfully disclosed by a third party without restriction; or (d) was independently developed by the receiving party without use of the disclosing party's Confidential Information.
Mercately warrants that: (a) it has the legal right and authority to enter into these Terms; (b) the Services will perform materially in accordance with our documentation under normal use and circumstances; and (c) it will implement reasonable security measures to protect Customer Data.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MERCATELY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MERCATELY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
Mercately does not warrant or guarantee any specific results from your use of the Services, including any particular level of revenue, conversion rates, email deliverability, or marketing performance. Results may vary based on factors outside our control, including your customer data quality, market conditions, and industry practices.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERCATELY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF MERCATELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MERCATELY'S TOTAL CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT YOU PAID TO MERCATELY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR (B) ONE HUNDRED DOLLARS ($100).
Some jurisdictions do not allow the exclusion or limitation of certain damages, so some of the above limitations may not apply to you. In such jurisdictions, Mercately's liability is limited to the greatest extent permitted by applicable law.
You agree to indemnify, defend, and hold harmless Mercately and its directors, officers, employees, agents, and successors from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (a) your use of the Services in violation of these Terms or applicable law; (b) your Customer Data, including any allegation that it infringes any third-party intellectual property right or violates any privacy law; (c) your marketing campaigns sent through the Services; (d) your breach of any representation or warranty made in these Terms; or (e) any dispute between you and any of your end customers.
These Terms commence on the date you first accept them and continue until your subscription is terminated. Either party may terminate these Terms and your account: (a) upon 30 days' written notice to the other party; or (b) immediately if the other party materially breaches these Terms and fails to cure the breach within 14 days of receiving written notice specifying the breach.
Mercately may immediately suspend or terminate your account without notice if: (a) we reasonably believe your account poses a security risk to the Services or other customers; (b) you are in violation of our Acceptable Use Policy; (c) you fail to pay any fees when due and do not cure the failure within 7 days of notice; or (d) we are required to do so by law.
Upon termination: all licenses granted to you under these Terms will immediately terminate; you will lose access to the Services and your account data; Customer Data will be deleted within 90 days following termination in accordance with our data retention policy (export your data before terminating); and all accrued payment obligations will survive.
These Terms are governed by and construed in accordance with the laws of the State of Florida, United States, without regard to its conflict of law provisions. You irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Miami-Dade County, Florida for the resolution of any dispute arising under or related to these Terms.
Before filing any formal legal proceeding, each party agrees to attempt to resolve disputes through good-faith negotiation for a period of 30 days following written notice of the dispute. If negotiation fails, the parties agree to attempt resolution through non-binding mediation before resorting to litigation.
EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING UNDER OR RELATED TO THESE TERMS. Any claim must be brought within one year of the date the cause of action arose, regardless of any statute of limitations to the contrary.
Entire Agreement: These Terms, together with the Privacy Policy, Cookie Policy, Data Processing Agreement, and any order forms or statements of work you execute with Mercately, constitute the entire agreement between you and Mercately regarding the Services and supersede all prior and contemporaneous agreements and understandings.
Modifications: We reserve the right to modify these Terms at any time. Material changes will be communicated via email or a prominent notice on the Site at least 14 days before taking effect. Your continued use of the Services after the effective date of any modification constitutes your acceptance of the revised Terms.
Assignment: You may not assign these Terms or your rights under them without Mercately's prior written consent. Mercately may assign these Terms in connection with a merger, acquisition, or sale of substantially all of its assets.
Severability: If any provision of these Terms is held to be invalid or unenforceable, that provision will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will continue in full force and effect.
Waiver: No waiver of any provision of these Terms shall be effective unless in writing and signed by an authorized representative of Mercately. No waiver of any provision shall constitute a waiver of any other provision or of the same provision on another occasion.
Force Majeure: Neither party will be liable for any delay or failure to perform obligations under these Terms due to circumstances beyond its reasonable control, including acts of God, natural disasters, pandemics, power outages, internet service disruptions, or governmental actions.
Contact: For questions about these Terms, please contact legal@mercately.com or write to Mercately, Inc., Attn: Legal, 1000 Brickell Avenue, Suite 715, Miami, FL 33131.