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Terms & Conditions
All the terms and conditions for the store.

Merchant Marketplace Terms of Use

Effective Date: August 12, 2019

1. About the Merchant Marketplace and these Terms of Use

Thoughtfull’s Merchant Marketplace provides merchants like you with a platform to connect with people around the world to sell your Products and Experiences.

You must agree to these Terms of Use in order to use the Merchant Marketplace and other Thoughtfull services offered by Thoughtfull (we call them the “Merchant Services” in this document).

Creating a great experience for Customers is a shared responsibility. In these Terms of Use, you will find information on Thoughtfull’s responsibilities and your responsibilities. These Terms of Use form an agreement between you, or the business you represent, and Thoughtfull.

Some of our Merchant Services may have additional terms (we call them “Service Terms” in this document). You must also abide by the Policies for the use of the Merchant Services. In the event of an inconsistency or conflict between the provisions of these Terms of Use, the provisions of the Service Terms or the provisions of the Policies, you agree that the inconsistency will be resolved in the following order of precedence: these Terms of Service, then the Service Terms and then the Policies.

In these Terms of Use, “we” or “us” refers to Thoughtfull, a division of Indigo Books & Music Inc. If you are using the Merchant Services as an individual, then all of these Terms of Use apply to you. If you are an employee or representative of a business using the Merchant Services, then the word “you” in these Terms of Use means your employer or the business you represent and the word “applicant” means the employee or representative entering into these Terms of Use on behalf of the business.

2. Your Account

You must be invited and/or apply for an account and be accepted by Thoughtfull before you will be permitted to use the Merchant Services. Accounts are not transferrable.

The applicant represents and warrants that the applicant is at least 18 years of age and has the ability to enter into a legally binding contract. If the applicant is applying for an account on behalf of a business, the applicant also represents and warrants that the application is authorized by the business and that the applicant has the authority to accept these Terms of Use on behalf of the business.

You represent and warrant that you will provide all of the information that Thoughtfull requires from time to time to create and maintain your account and the information you provide is, and will be, accurate and complete at all time. If any of the information you provide to us to create and maintain your account changes, you will promptly provide us with updated information.

You must safeguard your account ID and password and supervise any person using your account. You are responsible for all activities that occur using your account, regardless of whether the activities were being conducted by an employee, agent, representative or other

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person. We make commitments to you with respect to security in section 19; however, we are not responsible for and do not accept any liability for unauthorized access to or use or misuse of your account.

3. Our Relationship

Your relationship with Thoughtfull begins when you complete the application for an account and will continue until either of us terminates it in accordance with this section.

You may terminate your relationship with Thoughtfull on 30 days’ written notice to Thoughtfull. We may also terminate our relationship with you on 30 days’ written notice.

We may terminate our relationship with you immediately by notice to you (i) in the event we discontinue or are in the process of discontinuing the Merchant Services for all merchants, (ii) your account has been suspended (see section 25 – Account Suspensions) for more than 30 days, or (iii) we determine, in our sole discretion, that your account is inactive or does not meet our stated requirements.

In the event that our relationship with you is terminated for any reason, Thoughtfull’s rights and obligations and your rights and obligations will terminate except for (i) the rights and obligations in sections 3 (Our Relationship), 7 (Order Fulfilment), 8 (Problems with your Products and Experiences), 9 (Cancellations, Returns, Refunds and Adjustments), 14 (Pay- outs), 15 (Pre-Authorized Debits) 16 (Taxes), 17 (IP Rights), 21 (Insurance), 22 (Merchant’s Indemnification Responsibilities), 23 (Thoughtfull’s Indemnification Responsibilities), 27 (Disclaimer), 28 (Limitation of Liability), 29 (Disputes), 31 (Notices), 32 (Suggestions) and 33 (Confidentiality) of these Terms of Use and (ii) any provisions that the Service Terms state expressly survive.

Thoughtfull offers the Merchant Services as an independent contractor. Neither these Terms of Use nor the Merchant Services or Service Terms create any agency, partnership, joint venture, employment, franchisee relationship between us.

Your relationship is with Thoughtfull, a division of Indigo Books & Music Inc. You agree that nothing in these Terms of Use creates any relationship between you and any affiliate, shareholder or partner of Indigo Books & Music Inc.

4. Use of the Merchant Services Generally

Before being permitted to use the Merchant Services, you must provide us with valid bank account information for a bank account acceptable to Thoughtfull that you will designate for the purposes of receiving Pay-outs (see section 14 (Pay-outs)) and payment to us of any amounts you owe to Thoughtfull (see section 15 (Pre-authorized Debits)). This will be your “Designated Bank Account”. You authorize us to verify your information you provide to us. In addition, you agree that we may obtain credit reports about you from time to time.

You must comply with all applicable laws when you use the Merchant Services and when you perform your obligations and exercise your rights contained in these Terms of Use and any applicable Service Terms, and you represent and warrant that you will do so. These laws may include statutes, regulations, orders, ordinances, permits, licences, decisions or other requirements of a governmental authority. You also represent and warrant that all of your employees, representatives, agents, subcontractors and suppliers will comply with all applicable laws in the performance of your obligations and exercise of your rights in these

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Terms of Use and any applicable Service Terms.

You must also comply with Thoughtfull’s Policies. Our Policies are posted at https://thoughtfull.zendesk.com/hc/en-us/sections/360004883793-Policies.

5. Your Offerings

Subject to your compliance with these Terms of Use, any Service Terms, and the Policies, you may use the Merchant Services to promote and sell your Products and Experiences to Customers. “Customers” are individuals and companies who use the Thoughtfull Platform to purchase Products and Experiences.

You agree that you, and not Thoughtfull, are:

  • making the offer to the public of your Products and Experiences, including all pricing

    and Merchant Content that you display with your Products and Experiences

  • responsible for ensuring that your offer complies with all applicable laws, including,

    without limitation, laws relating to comparative pricing and misleading advertising

  • the seller of record for your Products and Experiences

  • responsible for ensuring that you have sufficient quantities to satisfy demand

  • responsible for the fulfilment of your Products and Experiences and must ensure that

    the Products and Experiences you deliver conform to their description

  • responsible for managing returns, exchanges and warranty claims

  • responsible for managing recalls

  • responsible for all disputes arising out of or relating to the sale and use of your

    Products and Experiences, including any claims arising from personal injury or death

    resulting from the use of your Products and Experiences

  • responsible for complying with all applicable laws, including, but not limited to

    consumer protection and fair-trading laws

  • responsible for obtaining any required licences, permits or registrations, equipment

    and supplies to fulfil your obligations to Thoughtfull and your Customers Your Products and Experiences must comply with our Policies.

    You represent and warrant that you will not sell any Products or Experiences using the Merchant Services that:

    violate any applicable laws
    are counterfeit or otherwise violate the IP Rights of a third party have been recalled in any jurisdiction
    do not meet our Product Safety Policy
    violate our Prohibited and Restricted Offerings Policy
    violate our Community Values Policy

    Your Products and Experiences may also be subject to exclusivity requirements and, if so, you agree to comply with those requirements. See the Exclusivity Policy.

6. Product and Experience Listings

You are solely responsible for all of the information that you include in your offer to Customers. We call this information your “Product or Experience Listing”. You represent and warrant that your Product or Experience Listing will be accurate and complete. The information that we require for your Product or Experience Listing can be found in the Product and Experience Listings Policy.

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You are responsible for making sure that your Products and Experiences can be offered, sold and shipped to the jurisdiction in which the Customer is located, including, without limitation, all applicable marking and labelling requirements, age requirements and health and safety laws.

You will notify us promptly as soon as you have knowledge of:
any public or private recalls, or safety alerts, regarding your Products
any safety alerts or public health notices or warnings with respect to any of your

Experiences

We reserve the right to decide, in our sole discretion, that any Product or Experience Listing does not meet our Policies or is incompatible with our branding. We hope that we do not have to do this, but our decision to refuse or suspend any of your offerings is final, and we have no liability to you for refusing or suspending your Product or Experience Listing or refusing or failing to display it to Customers.

7. Order Fulfilment

We will provide you with order information for each order of your Products and Experiences through the Thoughtfull Platform. Once you receive the order information, you will fulfil the order in accordance with all of the terms displayed in the Product or Experiences Listing. You will retrieve order information and provide us with information on the status of your fulfilment activities at least once per business day.

In the case of Products, you must:

  • package your Products in compliance with all laws governing packaging, marking

    and labelling requirements

  • ship your Products before the expected ship date stated in the Product or Experience

    Listing with an order-specific packing slip

  • identify yourself as the seller of record on all packing slips and other information

    you communicate to the Customer

  • include information on how to return or exchange the Product on the order-specific

    packing slip and identify yourself or your service provider (and not Thoughtfull) as

    the party to handle returns and exchanges

  • insert Thoughtfull marketing materials, as determined by Thoughtfull from time to

    time

    Please see section 10 for Special Terms for Experiences.

8. Problems with your Products and Experiences

We ask that you strive to ensure that there are no delivery errors or nonconformities with your Products and Experiences.

If errors or other issues occur, they are your sole responsibility, unless we gave you different order information than provided by the Customer to us. In particular, you are solely responsible for:

any non-delivery or mis delivery or theft in the course of fulfilment of the order
any non-performance or non-conformity of your Products and Experiences with the

Product or Experience Listing
any default or cancellation of an Experience by an Experience provider

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9.

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any Product defects
any public or private recall of, or safety alert regarding, any of your Products

Cancellations, Returns, Refunds and Adjustments

You will promptly accept and calculate any cancellations, returns, refunds and adjustments in accordance with the Product or Experience Listing or as you separately agree with the Customer to settle a dispute. You must promptly report to us, through the functionality provided in your account, the amount of any return, refund or adjustment so that we can credit the Customer using the payment method that the Customer used to pay. The amount we credit, less any applicable Sales and Value Added Taxes is the “Refund” which will be deducted from your Pay-out (see section 14 - Pay-outs). Although it is your responsibility, we may, if required to protect our interests, process a cancellation, returns, refunds and adjustments for the benefit of a Customer.

10. Special Terms for Experiences

“Experiences” are activities and events that you offer to Customers. We have some additional requirements that apply to Experiences. When you sell an Experience, we will issue a voucher with a voucher code that the Customer may use to redeem the Experience. You are the seller of record of the voucher and you are responsible for scheduling the Experience with the Customer.

You represent and warrant that you, and any service providers you use to deliver the Experience:

  • have the skills required to deliver the Experience safely and in accordance with the Product and Experience Listing

  • will act professionally and with due care for the safety and welfare of the participants

  • will comply with all laws, manufacturer’s directions and recommendations, and

    industry standards regarding safety, equipment, inspection, and operational capability

    You are responsible for all necessary equipment, including, but not limited, to supplies, vehicles, venues and other materials necessary to fulfill the Experience. Except as agreed upon between you and the participant, you accept all risks and liabilities with respect to property and personal injury (including death) of you, your employees, your service providers, and your participants.

11. Special Terms for Social Impact Products or Experiences

If you are a registered Canadian charity that would like to offer Products or Experiences through the Thoughtfull Platform for fundraising purposes, some additional special terms apply. We call these types of offers “Social Impact Products” and “Social Impact Experiences”.

In order to offer Social Impact Products or Experiences through the Thoughtfull Platform, you will need to be approved as a Social Impact Merchant the Social Impact Merchant Policy. If you offer Social Impact Product or Experiences, you represent and warrant that:

  • you are a registered charity with a charitable registration number issued by the Canada Revenue Agency

  • you have not received a notice of possible annulment of your charitable registration from the Canada Revenue Agency

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you have not applied for revocation of your charitable registration or received a notice of intention to revoke your charitable registration from the Canada Revenue Agency

12. Product and Experiences Suggestions

Our proprietary algorithm (part of the Thoughtfull Content) will make suggestions to Customers about Products and Experiences that they may be interested in. Whether your Products and Experiences are suggested depends on a variety of factors, including, but not limited, to the Merchant Content and/or information provided to us by the Customer. We do not guarantee that your Products and Experiences will be displayed to any or all Customers.

13. Merchant Services Fees

Our “Merchant Services Fees” are set out in the Fee Schedule accessible through your account. Fees are based on Product or Experience type. Our Merchant Services Fees are our compensation for providing the Merchant Services to you, including, without limitation, applicable licenses to portions of the Thoughtfull Content and processing payments for your Sales. Except as otherwise agreed to between you and Thoughtfull, the Merchant Service Fees will not change except on 60 days’ notice.

14. Pay-outs

We will calculate the Sales and Value Added Taxes on your Sales. “Sales” means the sale of your Products and Experiences to a Customer through the Thoughtfull Platform. “Sales and Value Added Taxes” include GST/HST, QST, PST or other similar sales or value added taxes that are imposed on the sale of goods and services on the Thoughtfull Platform.

You appoint us as your agent for the purposes of processing payments, refunds and adjustments for the Sales and for receiving, holding, and remitting to you payments in respect of Sales in accordance with these Terms of Use. You agree that when we receive a Customer’s payment, the Customer has satisfied its obligations to you for the Sale.

We will use our third-party payment processor to process payments for your Sales once you have confirmed shipment (or, in the case of a digital Product or Experience voucher) delivery of the Product or Experience. You bear the credit risk with respect to your Sales. We do not guarantee or assume any liability for “Chargebacks” – these are payment transactions that may later be reversed or charged back as a result of a dispute with the Customer, payment card fraud, or any other reason under the payment card issuer, acquirer or network rules.

Subject to section 15 (Preauthorized Debits), we will remit to you the amount received less applicable Refunds, Chargebacks, Setoffs and our Merchant Services Fees. We will remit to you the applicable Sales and Value Added Taxes charged to and collected from the Customer for your remittance to the appropriate government authorities. The net amount remitted to you is called the “Pay-out”. We will remit to you your available Pay-out balance every 30 days. However, if you change your banking information, your Pay-out may be delayed and remitted to you in the following remittance cycle. In the event that your Pay- out balance is negative, we will debit your Designated Bank Account for the amount owing to us (see section 15(Pre-Authorized Debits)). If you have insufficient funds in your Designated Bank Account, we may suspend your account and your use of the Merchant Services until you pay all amounts due to us.

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We may establish a reserve on your account or transaction limits based on our assessment of the risks to Thoughtfull or Customers based on your performance or the nature of the Products and Experiences you are selling.

We also have the right to deduct other amounts you may owe to us arising out of your obligations under these Terms of Use, the Service Terms and the Policies – we call these “Setoffs”.

15. Pre-Authorized Debits (PADs)

In order to use the Merchant Services, you must have an approved Designated Bank Account (see section 4 (Use of the Merchant Services Generally)), which you will maintain in good standing.

You authorize Indigo Books & Music Inc. and the financial institution for your Designated Bank Account to deduct one-time payments from time to time, for payment of all charges arising under these Terms of Use or any Service Terms, including during any period of account suspension or that arise upon termination of these Terms of Use.

You agree that any withdrawal by us or our agents in accordance with these Terms of Use or any Service Terms are pre-authorized debts for business purposes, as defined under Rule H1 of the Canadian Payments Association.

You waive your right to receive pre-notification of the amount of the pre-authorized debit and agree that you do not require advance notice of the amount of pre-authorized debit before the debit is processed.

The authorization in this section 15 will remain in effect until you notify us in writing of a change or termination.

It may take us up to 10 business days after receipt of a written notice from you to process a change to the Designated Bank Account. If you change your Designated Bank Account, this pre-authorized debit agreement will apply to the new bank account and you shall provide us in writing such information regarding the new bank account as we deem necessary, which will be the new Designated Bank Account for the purpose of this section 15.

You may revoke this pre-authorized debit authorization upon 30 days’ prior written notice to us, but any such revocation shall result in the immediate suspension of your account and you will no longer be permitted to use the Merchant Services.

You have certain recourse rights if any debit does not comply with this agreement. For example, you have the right to receive reimbursement for any pre-authorized debit that is not authorized or is not consistent with this pre-authorized debit agreement. To obtain a form for a reimbursement claim, or for more information on your recourse rights, contact your financial institution or visit www.payments.ca.

16. Taxes

You are solely liable for determining the taxonomy of Products and Experiences sold on the Thoughtfull platform, registering with the appropriate federal and provincial government authorities and paying all Taxes. We will calculate and collect from the Customer all Taxes

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based on the taxonomy information provided. We use the term “Taxes” to mean all taxes and other governmental fees and charges (including, without limitation, interest and penalties) applicable to or resulting from your use of the Merchant Services, including, without limitation, taxes on your income and the Sales and Value Added Taxes on your Sales.

Where applicable, we will calculate, collect and remit HST or other applicable taxes on the fees for the Merchant Services we provide to you. Upon request, an itemized invoice with the amount of tax collected on each Merchant Service can be made available.

You appoint us as your representative to calculate and collect Sales and Value Added Taxes applicable to your Sales, which we will remit to you. We will use commercially reasonable efforts to assist you in complying with applicable Sales and Value Added Taxes requirements. However, we do not accept any liability to you or any governmental authority for any errors or omissions with respect to the calculation, collection or remittance to government authorities of the Sales and Value Added Taxes.

17. IP Rights

“IP Rights” refers to intellectual property rights in any country in the world, whether those rights are now existing or created in the future, including, but not limited to, copyright, trademarks, service mark, trade names, logos or insignia, design rights, trade dress, patents, domain names, moral rights, and trade secrets.

Merchant Content

The Merchant Services provide you with the ability to upload content to the Merchant Services. We refer to that content as “Merchant Content” in these Terms of Use. You are responsible for your Merchant Content. You represent and warrant that your Merchant Content does not infringe any third party’s rights, including their IP Rights.

Licence to Merchant Content

During the term of our relationship (see section 3 – Our Relationship), you grant us a limited, revocable, royalty-free, non-exclusive, worldwide right and sublicensable licence to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of your Merchant Content solely for the purposes of providing and promoting the Merchant Services. You may revoke Thoughtfull’s licence to all or some of the Merchant Content at any time, however, this revocation will result in the suspension of your account.

Following the end of your relationship with Thoughtfull, you grant us a limited, irrevocable, royalty-free, non-exclusive worldwide right and sublicensable license to use your Merchant Content solely for the purposes of fulfilling our requirements to maintain business records and for tax and legal compliance purposes.

Thoughtfull Content

We use the term “Thoughtfull Content” to refer to the Thoughtfull Platform, Thoughtfull Materials, and the Thoughtfull Transaction Information. The “Thoughtfull Platform” is the website and software applications that we provide for you and Customers to connect to or interface with the Thoughtfull Materials. The “Thoughtfull Materials” means any text, audio, video, images, software, data, application programming interfaces (APIs), software libraries,

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and other documentation and supporting materials, technical and operational specifications and security protocols that we use or make available in connection with the Thoughtfull Platform and the Merchant Services. Thoughtfull Materials does not include your Merchant Content. “Thoughtfull Transaction Information” means information relating to the transactions that are processed through the Thoughtfull Platform.

Thoughtfull and its licensors own all of the IP Rights to the Thoughtfull Content. You will not attempt to obtain any right, title or interest, by registration, patent, copyright or otherwise, in or to the Thoughtfull Content or alter, reverse engineer, decompile or copy, as applicable, any of the Thoughtfull Materials.

Licence to Thoughtfull Content

Subject to your compliance with the Terms of Use, any Service Terms and the Policies, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable licence to do the following during the term of our relationship (see section 3 – Our Relationship):

  • access and use the Merchant Services solely in accordance with these Terms of Use, the Service Terms and the Policies;

  • copy and use those portions of the Thoughtfull Materials that we expressly make available for copying and use, provided such copying and use is solely for the purpose of using the Merchant Services and for no other purpose

18. Privacy

Your use of the Merchant Services is governed by our Privacy Policy.

We agree to abide by our Privacy Policy and only collect, use, retain and disclose information about Customers for the purposes set out in the Privacy Policy or as otherwise consented to by the Customers. We are solely responsible for the personal information that we collect and control about Customers. If we mess up, you are not responsible.

However, as disclosed in our Privacy Policy, you are responsible for complying with all applicable personal information protection or data protection laws relating to the information about the Customers that you receive from us. Once you receive personal information about Customers you are in control of it and are fully responsible for its privacy and security while in your possession or that of any of your service providers or processors (other than us). You represent and warrant that you will only use personal information about Customers in accordance with applicable laws. You are solely responsible for any loss of, unauthorized access to, unauthorized disclosure of or other unauthorized processing of a Customer’s personal information that has been provided to you, including, but not limited to, when you pass that personal information to your third party processors, service providers or partners.

We may provide you with Business Intelligence reports. Business Intelligence reports use the Thoughtfull Transaction Information and other information we gather to provide insights regarding Customers and the Thoughtfull Platform. You agree that the information contained in any Business Intelligence reports is confidential, and you will not disclose that information to any third party. You represent and warrant, as a condition of Thoughtfull providing you with the Business Intelligence reports, that you will not use, and you will not permit anyone else to use, the Thoughtfull Transaction Information to identify or attempt to identify a Customer.

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19. Security

We and our service providers and subprocessors are responsible for the security of the Thoughtfull Platform. You are responsible for ensuring the security of your account and the systems you use to fulfil any order made by a Customer. We, or our service providers and subprocessors, use physical, technical and organizational security measures designed to protect Customer personal information, Merchant Content and the Thoughtful Content from loss, unauthorized access, unauthorized use, and unauthorized disclosure.

20. Ethics and Values

Thoughtfull wants the Products and Experiences offered on the Thoughtfull Platform to have been produced ethically and in accordance with laws and international standards. You represent and warrant that all Products will be manufactured, packaged and labelled in conformance with the Social Compliance Program and Merchant Code of Conduct Policy.

21. Insurance

Except as provided for in your Product or Experience Listing approval, you agree to procure and maintain insurance coverage of the types and in the amounts specified in our Insurance Policy. We may change the required types and amounts on 90 days’ notice to you.

22. Merchant’s Indemnification Responsibilities

You agree to defend, indemnify, and hold harmless the Thoughtfull Indemnified Parties from all Claims arising from or relating to (i) your actual or alleged breach of the Terms of Use, any Service Terms or the Policies, including, without limitation, any breach of a representation or warranty; (ii) your use or misuse of the Merchant Services (except for Claims brought by a third party that arise solely from an allegation that the Thoughtfull Content infringes the IP Rights of that third party); (iii) an allegation that the Merchant Content infringes the IP Rights of any third party; (iv) your Products and Experiences (including, without limitation, Claims relating to the offer, sale, order fulfilment, warranties, performance, safety or use of, or defects in, your Products or Experiences) or your Merchant Content and any personal injury, death, or property damage resulting from your Products and Experiences or your Merchant Content, (v) a breach of security safeguards or other data breach involving Customer personal information that is in your control, (vi) your Personnel (including any act or omission your Personnel or any Claim brought or directed by your Personnel); and (vii) your Taxes.

The word “Claims” means any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, lawyers’ or attorney’s fees and expenses) brought by a third party.

The term “Thoughtfull Indemnified Parties” means Indigo Books & Music Inc., its affiliates, and each of their employees, officers, directors, agents and representatives.

Any counsel you use to defend each indemnified Claim must be free of legal conflicts with Thougthfull. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld. We have the right to take control of the defence at any time.

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23. Thoughtfull’s Indemnification Responsibilities

We agree to defend, indemnify, and hold harmless the Merchant Indemnified Parties from all Claims brought by a third party unrelated to you arising from or relating to (i) our actual or alleged breach of the Terms of Use, any Service Terms or the Policies; (ii) a breach of security safeguards or other data breach involving Customer personal information that is in our control, and (iii) an allegation that the Thoughtfull Content infringes the IP Rights of that third party except as set out in this section.

We will not have any obligation to defend, indemnify, and hold harmless the Merchant Indemnified Parties from Claims arising from your use of the Thoughtfull Content with any other product, service, software, data, content or method.

The term “Merchant Indemnified Parties” means you, your affiliates (if you are a business), and each of their employees, officers, directors, agents and representatives.

24. Changes

We may change the appearance, design or content of the Thoughtfull Platform and Thoughtfull Materials at any time in our sole discretion. We may also change or discontinue any of the Merchant Services or change or remove functionality of the Merchant Services from time to time. However, if the changes or discontinuance would result in a reduction in the technical performance of the Merchant Services, we will use commercially reasonable efforts to provide you with at least 30 days’ notice, unless the change is required by law, to address an emergency or threat to security of the Merchant Services, or to respond to actual or threatened claims, litigation or loss of licence rights.

We may change these Terms of Use, any applicable Service Terms, or any Policies at any time. We will notify you of the changes by posting the changes through the Merchant Services. We may also send you an email message about the changes, but you agree that we are not required to do so. Unless we say otherwise, changes become effective when we post the changes through the Merchant Services.

Your continued use of the Merchant Services after we post a change to the Terms of Use, any Service Terms or any Policy constitutes your agreement to the change.

25. Account Suspensions

Your use of the Merchant Services may be suspended, in our sole discretion. For example, we may suspend your account if:

  • You breach any representation or warranty

  • You breach any of the Policies

  • You change your Designated Bank Account without providing use with sufficient

    notice

  • There is a dispute between you and another person regarding account ownership

  • You have failed to pay any amount due to Thoughtful under these Terms of Use or

    any applicable Service Terms within 30 days of the due date

  • You have failed to accept, process and ship orders promptly, or have unacceptable

    incident or refund rates

  • We have received complaints from Customers regarding similar or multiple issues

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customer service or any other matter

  • You revoke Thoughtfull’s licence to the Merchant Content

  • Your use of the Merchant Services or your Products and Experiences creates a risk of

    liability to Thoughtfull or any third party that we have not expressly agreed to assume under these Terms of Use

    If your account is suspended, your store will be closed, and you will no longer be able to offer your Products and Experiences to Customers. However, you will still be able to access your account and manage existing orders. You will still be responsible for all applicable Merchant Fees and other amounts owing to us during the period of your account suspension.

    If your account is suspended by us, we will use our commercially reasonable efforts to restore your account promptly once you have resolved the conditions giving rise to the suspension to our satisfaction, acting reasonably.

26. Beta Services

We may offer you the opportunity to participate in pre-release or beta services. These services will be designated as a “Beta Service” by us. You must only access and use a “Beta Service” for internal evaluation purposes. You must comply with all Service Terms that apply to the Beta Service. We may terminate your access to a Beta Service at any time for any reason or no reason.

You agree that your use of a Beta Service is voluntarily and that the Beta Service is not ready for general commercial release. The Beta Service may contain errors, defects, bugs or harmful components.

27. Disclaimer

Except as expressly set out in these Terms of Use or any applicable Service Terms, we disclaim any and all express or implied representations, warranties and conditions to the fullest extent permitted by applicable law. This disclaimer includes all manner of representations, warranties and conditions, including those that arise by statute, a course of performance, a course of dealing, or usage of trade. Your use of the Merchant Services and the Thoughtfull Content is “as is”, “as available” and “at your own risk”. We do not guarantee the merchantability, fitness for a particular purpose or non-infringement of the Merchant Services or the Thoughtfull Content. We do not guarantee that the Merchant Services or the Thoughtfull will meet your requirements or that they will be available, timely, secure, uninterrupted, or error free. We will not be liable for any interruptions to the Merchant Services, including, but not limited to, system failures or technical or administrative interruptions that affect the receipt, processing, acceptance or completion of any order or transaction. If applicable laws do not permit limitations on implied warranties, then some of the disclaimers in this section 27 may not apply to you.

28. Limitation of Liability

To the fullest extent permitted by applicable law, we will not be liable to you or any other person for punitive, indirect or consequential damages. You agree that this exclusion of liability applies no matter what theory of liability you raise, including, without limitation, claims based in contract, warranty, product liability, tort (including negligence), delict, wilful cessation of services, or any other type of civil responsibility or legal or equitable theory.

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You agree that indirect or consequential damages includes (even if we have been advised of the possibility of these costs or damages) any loss of profit, revenue, business or data, cost of cover, and recovery or recoupment of any investment made by you or your affiliates in connection with this agreement, as well as any form of damages categorized by law as indirect or consequential.

Except in the case of fraud, gross negligence or intentional misconduct, our aggregate liability arising out of or in connection with the Merchant Services, these Terms of Use and any Service Terms will not exceed the total amounts paid by you for the Merchant Services that gave rise to your claim during the six month before the liability first arose. To the greatest extent permitted by applicable law, we will have no liability to you whatsoever for your use of a Beta Service.

You will not make any claim arising out of or relating to the Merchant Services, the Terms of Use or any Service Terms against an affiliate of Indigo Books & Music Inc. or against any employee, officer or director, agent or representative of Indigo Books & Music Inc. and its affiliates. If you do so, you agree that the disclaimers of warranties, representations and covenants and all limitations of liability in these Terms of Use will operate for the benefit of the affiliate of Indigo Books & Music Inc. and for the benefit of the employee, officer or director, agent or representative of Indigo Books & Music Inc. and its affiliates.

29. Disputes

You agree that if a dispute arises between us, that these Terms of Use and any applicable Service Terms are the entire agreement between you and Thoughtfull with respect to the Merchant Services. If any part of these Terms of Use or a part of applicable Service Terms is found to be unenforceable, all of the other provisions will remain in full force and effect. The fact that one of use fails to enforce a legal right doesn’t mean that that party has waived the right.

These Terms of Use and any Service Terms are governed by the laws of the Province of Ontario, without regard to conflict of laws rules, and the laws of Canada applicable in Ontario. The International Sale of Goods Act (Ontario) and the Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply.

You agree that any dispute or claim arising out of or relating to these Terms of Use, any Service Terms, or the provision of the Merchant Services shall be adjudicated in the courts of applicable jurisdiction in the City of Toronto, Province of Ontario.

30. Sanctions and International Trade

You will not directly or indirectly export, re-export, transmit, or cause to be exported, re- exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, Canada, the US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.

31. Notices

You agree that we may provide you with any notices required by these Terms of Use, any 13

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Service Terms or the Policies by sending you an email to the e-mail address you designate in your account. You must send all notices to Thoughtfull that are required by these Terms of Use, any Service Terms or the Policies by sending an e-mail to notices@thoughtfull.co.

32. Suggestions

You may make suggestions to us on the development of new services or functionality, improvements or other matters. Your suggestions may take the form of comments, ideas or feedback. You are not obligated to do provide suggestions. However, if you do, you waive any rights in the suggestions, including, without limitation, any claim for compensation. We do not owe you a fiduciary duty with respect to or a duty of confidentiality in your suggestions. You agree that we may implement, use and otherwise exploit your suggestions in our sole discretion without obtaining any licence from you.

33. Confidentiality

When you use the Merchant Services, you and Thoughtfull may share Confidential Information. “Confidential Information” is any information about our respective businesses that would not be known to the general public, including, without limitation, the Thoughtfull Transaction Information, non-public Thoughtfull Content and our respective business processes.

The receiving party agrees (i) to protect the Confidential Information from unauthorized disclosure and (ii) not to use the Confidential Information received from the disclosing party except for the purposes directly connected with the receiving party’s obligations under these Terms of Use, the Service Terms and the Policies. The receiving party will not disclose the Confidential information to a person other than its own or its affiliate’s directors, offers, employees, representatives and advisers who need the information in direct relation to purposes directly connected with the receiving party’s obligations under these Terms of Use, the Service Terms and the Policies. Each party is responsible for any breach of this

section 33 by any of its own or its affiliate’s directors, offers, employees, representatives and advisers.

If the receiving party is required to disclose Confidential Information pursuant to a court order or by applicable law, the receiving party will first notify the disclosing party unless the receiving party is expressly prohibited from doing so by court order or by applicable law and the receiving party will allow the disclosing party the maximum amount of time permitted under the court order or applicable law to challenge the production or seek a protective order. In the event the event that the receiving party is prohibited from notifying the disclosing party or the disclosing party was unable to set aside the requirement for disclosure, the receiving party will only furnish that portion of the Confidential Information that is legally required to be disclose.

Upon the written request of the disclosing party, the receiving party will promptly return or destroy all copies of that disclosing party’s Confidential Information and confirm such return and/or destruction of Confidential Information to the disclosing party in writing. Any Confidential Information that, on a reasonable basis, is incapable of return or destruction or that is required to be retained under applicable laws will continue to be subject to the terms of this section 33.

Notwithstanding anything in this section 33, you agree that we may retain your Product and Experience Listings and all transaction information relating to your account for as long as we

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deem necessary to fulfil our requirements to maintain business records and for tax and legal compliance purposes.

This section 33 supersedes and replaces any non-disclosure or confidentiality agreement that you may have entered into with Indigo Books & Music Inc. in connection with exploring a business relationship with Thoughtfull.

34. Force Majeure

We will not be liable for any delay or failure to perform any of our obligations by reasons, events or other matters that are beyond our reasonable control.

35. Assignment

You may not assign your rights or obligations under these Terms of Use or any Service Terms to any other person without our prior written consent, which we may withhold in our discretion. We may assign our rights and obligations under these Terms of Use or any Service Terms by providing you with notice that we have made the assignment.