Subscribed before September 3, 2026? These terms take effect for existing customers on October 7, 2026. Until then, the version that applies to you is the previous version.
General Terms
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" or “Customer Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated. Throughout this Agreement, we link to knowledge base articles to help facilitate your use of our products and services and manage your InkDesk Account; however, these knowledge base articles are for your information only, and they are not incorporated into this Agreement.
"Authorized Payment Method" means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.
"Billing Period" means the period for which you agree to prepay fees. This may be the same length as the Subscription Term, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Client" means an individual (other than a User) whose information you store in the Subscription Service, including a person who submits a booking request, is sent or signs a waiver, or with whom you communicate through the Subscription Service.
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include InkDesk Content.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“DPA” means the InkDesk Data Processing Agreement.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"InkDesk Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service.
"Order" means the online subscription process by which you subscribe to the Subscription Service, and any separate written agreement we enter into with you for a custom package.
“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
"Sensitive Information" means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based applications, tools and platforms that we make available to you, and are developed, operated, and maintained by us, accessible at portal.inkdesk.app (the application you log in to), at inkdesk.app (our website and the public profile and booking pages we host for our customers), and through our mobile applications, and any ancillary products and services that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-InkDesk apps and links made available through the Subscription Service and non-InkDesk services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"InkDesk", "we", "us" or “our” means the contracting entity specified in the 'Contracting Entity; Governing Law; Notice' section.
"You", "your" or “Customer” means the person or entity using the Subscription Service and identified in the applicable account record, billing statement or online subscription process as the customer, and your Affiliates included in the scope of your purchase.
2. USE OF SERVICES
2.1 Access.
During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement. We may provide your Users access to use our Free Services at any time by activating them in your InkDesk account. We might provide some or all elements of the Subscription Service through third party service providers.
You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. Each User is also directly bound. By accessing or using the Subscription Service, each User agrees to this Agreement and to the AUP as they apply to their own use, whether or not they are the account owner. We may suspend or terminate an individual User's access — without suspending the account as a whole — where that User has breached this Agreement or the AUP, and we will notify the account owner when we do. This does not limit your responsibility for your Users, or our rights against you. You may provide access and use of the Subscription Service to your Affiliate's Users; provided that, all such access and use is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates' compliance with the Agreement.
2.1A Studio Accounts, Users and Roles.
(a) Who the Customer is. Where a subscription is created for a studio, the account owner is the Customer and is the party contracting with us, even where individual artists are added as Users. The account owner is responsible for all use of the account, for all fees, and for the acts and omissions of every User in it.
(b) Roles. The Subscription Service provides account roles with different levels of access (for example owner, administrator and artist). You are responsible for assigning roles appropriately and for understanding what each role can see and do. An owner or administrator may be able to view, export, modify and delete Customer Data associated with other Users in the account, including client records, messages, bookings, waiver submissions and payment records, and may be able to configure settings that affect other Users. By joining an account as a User, an individual acknowledges this.
(c) Data in a studio account is the account's data. All Customer Data in a studio account, including client records created by an individual artist, is Customer Data of the account owner for the purposes of this Agreement, regardless of which User created it. Any arrangement between a studio and an artist about ownership of, access to, or portability of client relationships and records on the artist's departure is a matter between them, and we will act on the instructions of the account owner. We are not obliged to give a departing User a copy of, or continued access to, Customer Data, and we are not liable for any dispute between a studio and an artist about it.
(d) Removing Users. The account owner or an administrator may remove a User at any time, which ends that User's access immediately. Removing a User does not delete the Customer Data associated with them.
(e) Instructions and disputes. Where we receive conflicting instructions from Users of the same account, we may act on the instructions of the account owner, or may suspend action until the conflict is resolved. We are not obliged to determine who is entitled to control an account, and where ownership of an account is disputed we may suspend the account until the dispute is resolved between the parties or by a court.
(f) Effect of account suspension or termination on other Users. Where an account is suspended or terminated, access ends for all Users of that account, including Users who are not responsible for the reason. Where we suspend or terminate an account for non-payment, we will use reasonable efforts to notify the other Users in that account by email at the same time as the account owner, so that they are aware of the loss of access. We are not obliged to provide Customer Data to a User who is not the account owner, to restore access for an individual User, or to accept payment from anyone other than the account owner; any arrangement to preserve or transfer records is a matter between the account owner and the User. Where a payment collected through the Subscription Service settled into a User's own connected payment account, that payment and any obligation attached to it remains that User's responsibility regardless of the status of the InkDesk account.
2.2 Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your InkDesk account (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your InkDesk account.
2.3 Availability. We will use commercially reasonable efforts to make the Subscription Service available twenty-four hours a day, seven days a week, except for (i) planned maintenance, for which we will give advance notice in the product or by email where practicable, (ii) emergency maintenance, and (iii) any unavailability caused by circumstances beyond our reasonable control, including those described in the 'Force Majeure' section, an act or omission of yours or your Users, your equipment or connectivity, or the failure or interruption of a third-party service, integration or payment processor. We do not offer a service level agreement or service credits, and we do not guarantee uninterrupted or error-free operation. Nothing in this section limits the 'Disclaimer of Warranties' section.
2.4 Limits. The limits that apply to your subscription — including the number of Users, storage, and any feature limits — are those shown in the Subscription Service and on our pricing page at the time you subscribe. We may apply reasonable technical limits to protect the Subscription Service and will give you notice in the product before applying a new limit that materially affects your existing use.
You must be 18 years of age or older to use the Subscription Service.
2.5 Downgrades. You may downgrade your subscription (for example, by reducing the number of Users or moving from a studio plan to a solo plan) from your billing settings. A downgrade takes effect at the start of your next Billing Period, we do not refund or credit the difference for the current Billing Period, and features, Users or data that exceed the limits of the lower plan may become unavailable when the downgrade takes effect.
2.6 Modifications. We modify the Subscription Service from time to time, including by adding, changing or removing features. We will not make a change that materially reduces the core functionality of the Subscription Service you are paying for during your then-current Subscription Term without giving you at least thirty (30) days' notice by email or in-app notification; if we do, and the change materially and adversely affects your use, you may terminate the affected subscription on notice to us within thirty (30) days of our notice and we will refund any prepaid but unused fees for the remainder of that term. This does not apply to changes to Free Services, Beta features, or changes we make for legal, security or third-party-dependency reasons.
2.7 Customer Support. We provide customer support by email at [email protected] and through the in-product support channel, during our normal business hours and on commercially reasonable efforts. We do not commit to a specific response or resolution time unless separately agreed in writing.
2.8 Acceptable Use. You will comply with our Acceptable Use Policy at https://inkdesk.app/legal/acceptable-use-policy (the "AUP").
2.8A Third-Party Integrations.
(a) Connecting an account. The Subscription Service allows you to connect accounts you hold with third-party services (for example a calendar, an email or messaging account, or a payment processor) so that information can be exchanged between them and the Subscription Service. Connecting is optional and is initiated by you.
(b) Your authorization and authority. When you connect a third-party account you authorize us to access, retrieve, store, use and transmit information from and to that account as necessary to provide the connected functionality, in accordance with the permissions you grant during the connection process. You represent that you own or are authorized to connect that account and to grant those permissions, and that connecting it does not breach your agreement with the third party or the rights of any other person.
(c) Third-party terms and data. Your use of a connected service remains governed by your agreement with that provider, and the provider's own terms and privacy notice apply to the information it holds. Where a connected service imposes requirements on how you may contact or message individuals — including consent, opt-out, timing or content requirements — you are responsible for complying with them. We may enforce a third-party provider's requirements against your use of the connected functionality, including by limiting or disabling it.
(d) Information from connected accounts. Information we receive from a connected account, including message content, contact details and calendar entries, is Customer Data and is handled in accordance with this Agreement and the DPA. You are responsible for ensuring you have the right to bring that information into the Subscription Service, including any consent required from the individuals it concerns, and for the fact that other Users of your account may be able to see it.
(e) No control over third parties. We do not control third-party services and are not responsible for them. A provider may change, limit, suspend, price, deprecate or discontinue its interface or your access to it at any time, which may cause connected functionality to stop working, in whole or in part, with or without notice. Any such change is not a breach of this Agreement, does not entitle you to a refund, and we disclaim all liability for it, including for any data that fails to synchronize, synchronizes incorrectly, or is delayed or lost.
(f) Disconnecting. You may disconnect a connected account at any time from your account settings, and we may disconnect it if required by the provider, if the connection creates a security or compliance risk, or if your access to the provider is revoked. Disconnecting stops further exchange of information but does not delete information already brought into the Subscription Service, which remains Customer Data subject to the deletion provisions of this Agreement and the DPA. Deleting information from the Subscription Service does not delete it from the third-party service, and deleting it from the third-party service does not delete it from the Subscription Service.
(g) Availability. Connected functionality is provided on an as-is basis and may be added, changed or withdrawn at any time. Some connections may require a paid subscription or additional verification.
2.9 Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
You will notify us promptly of any unauthorized use of your Users' identifications and passwords or your account by contacting us at [email protected]
2.10 Sensitive Information and Regulated Data.
(a) Permitted categories. The Subscription Service is designed to allow you to collect and store client information ordinarily used in a tattoo or body-art practice, including client contact details, appointment and project records, reference images and photographs you or your client upload, and the responses, attachments and signatures collected through digital waiver and booking forms you create. You may use the Subscription Service for those purposes.
(b) Your responsibility for what you collect. You determine what information your booking forms and waivers ask for, and you alone are responsible for (i) the lawfulness of collecting it, (ii) providing any notice and obtaining any consent required by law before collecting it, (iii) whether it is necessary and proportionate for your purpose, and (iv) complying with any sector-specific law that applies to you but not generally to us. We do not review, approve or advise on the content of your waivers or forms.
(c) Prohibited categories. YOU MAY NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR STORE: payment card numbers, financial account numbers or wire instructions entered outside our supported payment integrations; Social Security, Social Insurance or equivalent national identification numbers; information subject to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), the Payment Card Industry Data Security Standard as a merchant of record, or the Federal Information Security Management Act (FISMA); or information subject to any other law imposing security or handling obligations materially beyond those described in our Data Processing Agreement. THE SUBSCRIPTION SERVICE IS NOT A HIPAA-COVERED SERVICE, WE WILL NOT ENTER INTO A BUSINESS ASSOCIATE AGREEMENT, AND WE SPECIFICALLY DISCLAIM ANY LIABILITY ARISING FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR STORE INFORMATION IN THIS SUBSECTION (c).
(d) Health and identity information collected through waivers. If your waiver or booking form collects health-related answers (for example medical history, allergies, medications or pregnancy status) or an image of a government-issued identity document, you acknowledge that (i) you are the controller of that information, (ii) you are solely responsible for the lawful basis, notice and consent required to collect it and for any resulting obligations under applicable privacy, health-privacy or biometric-privacy laws, and (iii) you will collect no more than your jurisdiction requires you to collect and will not retain it longer than you are required or permitted to. We process that information only as your processor, as described in the DPA.
2.11 Your Responsibilities. You are responsible for:
- (a) the accuracy, quality, legality and appropriateness of Customer Data and Customer Materials, and for having the rights and permissions necessary to submit them to the Subscription Service — including for any photograph, reference image, artwork or document you or your client uploads;
- (b) your relationship with your clients, including the services you provide to them, your booking, deposit, cancellation, rescheduling, no-show and refund policies, and any consent, waiver, release or notice your clients are asked to give;
- (b1) the accuracy of the client-facing privacy information shown on your booking pages, including the notice we generate from your account details and anything you add to it, and providing your clients with any further privacy information required of you as the business responsible for their information;
- (b2) deciding what your booking forms and waivers ask for, and collecting only what you need for the service you provide;
- (b3) responding to requests from your clients to access, correct, delete, port or object to the use of their information, and to any complaint they make about it — we will refer any such request we receive to you and will provide reasonable assistance as described in our DPA, but the substantive response is yours to give;
- (c) maintaining the confidentiality and security of your and your Users' login credentials, enabling available account-security features, and promptly notifying us of any suspected unauthorized access;
- (d) the acts and omissions of your Users and anyone else you allow to access your account, as if they were your own, and for configuring and reviewing the roles and permissions you grant to Users within your account;
- (e) the content, timing and lawfulness of any message, reminder, form or automated communication you send or configure the Subscription Service to send on your behalf, and for obtaining any consent required before sending it;
- (f) any third-party service or account you connect to the Subscription Service, and for complying with that provider's terms; and
- (g) keeping your own records where you are required by law, a regulator, a licensing body or an insurer to do so, and for exporting a copy of Customer Data you need to retain independently of the Subscription Service.
2.12 Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. Our standard trial is thirty (30) days unless a different period is stated when you register. Your trial does not convert automatically and we will not charge you when it ends. To continue after the trial you must add a payment method and start a paid subscription; if you do not, your trial ends and your account is deactivated. Free trials and Free Services are provided "AS IS" without warranty, are excluded from any availability commitment, and may be modified, limited or discontinued at any time.
2.12A Beta and Early-Access Features. We may make features available to some or all customers on a beta, preview, early-access or trial basis, which may be identified as such in the product or offered only to selected accounts. Beta features are provided "AS IS" and "AS AVAILABLE", without warranty of any kind, are excluded from any availability commitment, and may contain errors or produce inaccurate results. We may change, limit, suspend or discontinue a beta feature, or your access to it, at any time without notice and without liability, and a beta feature may never become generally available. Except for our confidentiality obligations and our obligations under the DPA, our total liability arising out of or relating to a beta feature will not exceed one hundred Canadian dollars (CAD $100). You should not rely on a beta feature for any purpose where an error, delay, interruption or loss of data would be material to you, and you are responsible for maintaining your own records of anything important that you do with one. This section survives termination.
2.13 Legacy Plans. If you are on a plan we no longer offer, some features and limits may differ from those described in these General Terms or on our current pricing page. We may move you to a current plan on thirty (30) days' notice; if the change materially and adversely affects your use, you may terminate under the 'Modifications' section.
2.14 Message Delivery. The Subscription Service sends messages, reminders, forms and other communications on your behalf through third-party channels, including email, push notification and, where you enable them, messaging platforms and any additional channels we may offer. Delivery depends on those providers, on receiving networks and platforms, and on the recipient’s own device, account and settings. We do not guarantee that any message will be sent, delivered, delivered on time, or displayed. Messages may be delayed, filtered, placed in a spam or junk folder, blocked, throttled, rejected or discarded by a provider, network, platform or recipient for reasons outside our control. We may also delay, hold, throttle or decline to send messages where we reasonably believe it is necessary to comply with applicable law or a provider’s requirements, to protect the security, integrity or availability of the Subscription Service, or to prevent abuse, including while your account is under review under the ‘Suspension’ section. Subject to the ‘Limitation of Liability’ section, we are not liable for any message that is not sent, not delivered, delayed, or delivered to the wrong recipient, or for any consequence of that failure. You are responsible for the consequences of any undelivered or delayed message, and you should not rely on the Subscription Service as the sole means of communicating anything time-sensitive, health-related or otherwise important to a client.
3. FEES
3.1 Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you exceed the limits that apply to your subscription (see the 'Limits' section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. Any other change to your fees during a Subscription Term will be made only with your consent or as described in the 'Fee Adjustments at Renewal' section.
Adding and removing Users. Studio subscriptions are priced by the number of Users. Adding a User increases your fees, either on a pro-rata basis for the remainder of the current Billing Period or from the start of the next Billing Period, as we indicate at the time you add them. Removing a User takes effect at the start of your next Billing Period and does not produce a refund or credit for the current one. Removing a User ends their access but does not delete Customer Data associated with them, which remains in your account. Where we have agreed a custom package with you, the pricing and terms of that package apply.
3.2 Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our then-current list price. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the 'Notice of Non-Renewal' section below.
3.3 How You Are Billed. Depending on how you subscribe, your subscription is billed through one of the following channels, and the terms of that channel apply in addition to this Agreement:
(a) Web checkout. Subscriptions purchased on our website or in the web application are billed through our third-party payment and merchant-of-record provider. That provider is the seller of record for the subscription and processes your payment; your payment details are handled by it and not stored by us. Its terms and privacy notice apply to the payment transaction.
(b) Apple App Store. Subscriptions purchased through the InkDesk iOS application are billed by Apple through your Apple Account. Apple, not InkDesk, processes the payment, manages renewal, and handles cancellation and refunds. You must manage or cancel that subscription in your Apple Account subscription settings; cancelling in the InkDesk app or contacting us will not cancel it. Refund requests for App Store purchases must be made to Apple and are decided by Apple under its policies. Payment is charged to your Apple Account at confirmation of purchase, and the subscription renews automatically unless auto-renew is turned off at least 24 hours before the end of the current period.
(c) Google Play. Subscriptions purchased through the InkDesk Android application are billed by Google through your Google Play account, and are managed, cancelled and refunded through Google Play under Google's policies.
(d) Precedence. Where this Agreement and the applicable store's terms conflict as to billing, renewal, cancellation or refunds for a subscription purchased through that store, the store's terms control. The 'Early Cancellation' and 'Effect of Termination or Expiration' sections apply to your access to the Subscription Service, not to the store's billing of your subscription.
3.4 Payment of Fees. If you are paying by credit card, you authorize us (or our billing provider) to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Fees are stated and payable in the currency shown for your subscription at checkout, and that currency governs the amount you owe. Where we display a price in another currency for convenience, that figure is an estimate and is not the amount charged. Where the billing currency differs from the currency of your payment method, your card issuer or bank sets the exchange rate and may add conversion or cross-border fees; those amounts are your responsibility and are additional to the fees payable to us.
In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the 'Suspension' section or terminate your account in accordance with the 'Termination for Cause' section if we remain unable to successfully charge a valid Authorized Payment Method.
3.5 Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information.
Changes may be made on your Billing Page within your InkDesk account. You authorize InkDesk to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
3.6 Sales Tax. All fees are exclusive of taxes. Where your subscription is billed through a third-party merchant of record or an app store, that provider charges and remits any applicable sales tax, VAT or GST; otherwise we will charge it as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
3.7 Client Payments and Deposits.
(a) What the feature is. The Subscription Service includes optional functionality that lets you request and collect deposits and other payments from your clients through a third-party payment processor (currently Stripe). To use it you must create or connect your own account with the payment processor and accept that processor's terms directly.
(b) You are the merchant of record. Payments your clients make are charged to, and settle directly into, your connected payment-processor account. InkDesk does not receive, hold, escrow or control those funds at any point, and takes no percentage or per-transaction fee on them. You, not InkDesk, are the merchant of record and the seller of the underlying services. Your relationship with the payment processor is governed by your agreement with it, and we are not a party to it.
(c) Refunds, cancellations and no-shows. You alone set, publish and administer your deposit, cancellation, rescheduling, no-show and refund policies, and you alone decide whether to issue a refund. The Subscription Service does not issue refunds automatically. Refunds are initiated by you through the Subscription Service or your payment processor and are subject to the processor's own time limits and rules; after certain periods a refund may only be possible through the payment processor directly or not at all. We have no obligation to refund, reverse, adjust or mediate any payment between you and your client.
(d) Chargebacks and disputes. If a client disputes a charge or initiates a chargeback, that dispute is between the client, you, and the payment processor. Chargebacks, dispute fees and reversals are charged to your connected account. We are not a party to and will not arbitrate any such dispute, and we are not liable for its outcome or for any fee, penalty or loss you incur as a result.
(e) Risk controls and suspension of payment functionality. We may set limits on payment amounts and frequency, require additional verification, and suspend or disable your access to payment functionality — immediately and without prior notice where we consider it necessary — if we reasonably believe there is fraud, an elevated dispute rate, a violation of this Agreement or the AUP, a requirement imposed by the payment processor, or a risk to us, to other customers, or to clients. Suspension of payment functionality does not entitle you to a refund of Subscription Fees and does not affect payments already collected.
(f) Studio arrangements and splits. Where you configure the Subscription Service to route or split a client payment between a studio account and an artist account, you represent that the arrangement you configure reflects a valid agreement between the studio and the artist and complies with applicable law, including employment, contractor, tax and withholding law. We execute the transfer instructions you configure; we do not determine, verify, advise on or guarantee the correctness or lawfulness of any split, commission, fee apportionment or payout arrangement, and any dispute between a studio and an artist about it is solely between them.
(g) Tax. You are solely responsible for determining, collecting, reporting and remitting any tax arising from payments you collect from your clients, and for issuing any receipt or invoice required of you. Receipts generated by the Subscription Service are sent on your behalf and under your business identity; they are not InkDesk invoices.
(h) Availability. Payment functionality depends on third-party payment processors and may be unavailable, delayed, limited by region or currency, or discontinued. We are not liable for any act, omission, outage, hold, account restriction, freeze or termination by a payment processor.
4. TERM AND TERMINATION
4.1 Term and Renewal. Your initial subscription term will be specified when you subscribe, and, unless otherwise specified, your subscription will automatically renew for the shorter of the subscription term, or one year.
4.2 Notice of Non-Renewal. To prevent renewal of your subscription, you or we must give written notice of non-renewal. To prevent renewal you must turn off auto-renewal, or give us notice, at least one (1) day before the end of your then-current Subscription Term for monthly subscriptions, and at least seven (7) days before the end of the term for annual subscriptions. If you purchased your subscription through the Apple App Store or Google Play, you must cancel through that store's subscription settings instead; we cannot cancel a store subscription on your behalf.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by turning auto-renew off by accessing the billing details information in your InkDesk account, or by contacting us at [email protected]
4.3 Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. See the 'Notice of Non-Renewal' section for information on how to cancel your subscription.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days' notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
We may also terminate this Agreement for cause on thirty (30) days' notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
4.5 Suspension
4.5.1 Suspension for Prohibited Acts
We may suspend any User's access to any or all Subscription Services without notice for:
(i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement,
(ii) use of the InkDesk email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or
(iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm
If your use of the Subscription Service:
(i) is being subjected to denial of service attacks or other disruptive activity,
(ii) is being used to engage in denial of service attacks or other disruptive activity,
(iii) is creating a security vulnerability for the Subscription Service or others,
(iv) is consuming excessive bandwidth or storage, or
(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.5.4 Suspension and Termination of Free Services
We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.6 Effect of Termination or Expiration. If your paid subscription is terminated or expires, your account will be deactivated. Any free tier we offer is available to new accounts only and is not available once a paid subscription has ended, and we do not guarantee that a free tier will be offered at all. You may export Customer Data at any time while your subscription is active, and you should do so before your subscription ends. When you delete your account, Customer Data is erased from our live systems immediately and cannot be recovered. Copies persist in our backups for the period described in our Privacy Policy before ageing out. We retain a minimal record of a deleted account — the email address and an abuse indicator — to detect and prevent abuse of the deletion process. If your subscription is billed through the Apple App Store or Google Play, termination of this Agreement does not by itself cancel that store subscription — you must cancel it in that store's settings.
You will continue to be subject to this Agreement for as long as you have access to an InkDesk account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and InkDesk Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
5. CUSTOMER DATA
5.1 Customer's Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service to you and as otherwise permitted by this Agreement. If you are using the Subscription Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.1A Your Clients. The Subscription Service is a tool you use to manage your own relationships with your clients. We have no relationship with your clients, we do not provide any service to them, and we are not a party to any agreement between you and a client. You are solely responsible for your clients and for everything you do in relation to them, including the tattoo, piercing, consultation or other service you provide; your booking, deposit, cancellation, rescheduling, no-show and refund policies and the way you apply them; the content of every waiver, form, message and reminder sent to a client through the Subscription Service; the collection, use, disclosure, security and retention of your clients' personal information, including photographs and identity documents; and any dispute with a client. Communications, booking pages, waivers and receipts generated through the Subscription Service may be sent under your name and business identity; they are your communications, not ours. Nothing in this Agreement creates any right, remedy or cause of action in favour of any client, and no client is a third-party beneficiary of this Agreement.
5.2 Limits on InkDesk. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service to you and only as permitted by applicable law and this Agreement.
5.3 Data Practices and Machine Learning.
5.3.1 Usage Data.
We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement.
5.3.2 Automated Processing, Filtering and Machine Learning.
(a) Filtering and abuse detection. We use automated systems, including third-party services, to screen inbound messages and booking submissions for spam, fraud and abusive content, and to protect the Subscription Service and its users. These systems may block, flag, quarantine or delay a message or submission, including one that is legitimate. We are not liable for any message or submission that is blocked, delayed or misclassified, or for any consequence of a false positive or false negative, and you should not rely on the Subscription Service as your only channel for time-sensitive communications.
(b) Machine learning and model improvement. We may use Customer Data in aggregated and de-identified form to develop and improve features and functionality of the Subscription Service. We do not use Customer Data to train generally-available third-party foundation models, and we do not sell Customer Data. Where we use a third-party artificial-intelligence service to provide a feature, we engage it as a subprocessor under the DPA and, to the extent within our control, under terms that prohibit it from using Customer Data to train its own models.
(c) Opting out. You may ask us to stop using your Customer Data for the purposes described in subsection (b) by emailing [email protected]. You cannot opt out of the filtering and security processing in subsection (a), which is necessary to operate the Subscription Service and to protect other users. Where we action a request, it applies to all Customer Data in your account, including information about your clients. If a client asks you to opt their information out, making this request for your account is how you do it.
(d) Outputs. Where the Subscription Service generates suggested text, summaries or other output using automated means, that output may be inaccurate, incomplete or unsuitable, and you are responsible for reviewing it before relying on or sending it. Output is Customer Data as between you and us.
5.3.3 Privacy Policy.
For more information on these practices, please see our Privacy Policy.
5.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our Security Measures in Annex 2 of our DPA.
5.5 Where We Store Customer Data. We store Customer Data on infrastructure operated by our hosting providers in the United States. We do not currently offer a choice of storage region. Transfers of Personal Data are made in accordance with the 'Data Transfers' section of our DPA. If we change the region in which Customer Data is stored, we will update this section and give notice in accordance with the 'Amendment; No Waiver' section.
5.6 Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Subscription Service. To the extent we process Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA), the Standard Contractual Clauses (and, for the United Kingdom, the UK Addendum) will apply as set out in our DPA. Details of the transfer mechanisms we rely on are set out in the 'Data Transfers' section of our DPA and in the 'International Data Transfers' section of our Privacy Policy.
5.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please see the 'InkDesk Obligations' section of our DPA. You may export Customer Data from your account at any time during your Subscription Term using the export functionality we make available in the Subscription Service, and we will provide reasonable assistance with an export on written request, at your cost. Deletion of your account erases Customer Data from our live systems immediately, as described in the 'Effect of Termination or Expiration' section, so you must export anything you need before deleting. We do not undertake to store Customer Data indefinitely and you should not rely on the Subscription Service as your only record of anything you are required to retain.
5A. DIGITAL WAIVERS AND ELECTRONIC SIGNATURES
5A.1 What we provide. The Subscription Service lets you create waiver, consent and intake documents, send them to your clients by a secure link, and receive back the client's answers, any files the client uploads, and an electronic signature, stored in your account. We provide software. We do not provide the waiver.
5A.2 You own the content and the legal effect of your waivers. You are solely responsible for the content, wording, adequacy, accuracy and legal sufficiency of every waiver, consent form, release, questionnaire and booking form you create or send using the Subscription Service, and for whether it is valid and enforceable in your jurisdiction. Any template, sample or example we make available is provided for convenience only, is not legal advice, and has not been reviewed for your jurisdiction. We make no representation that any waiver created, sent, signed or stored using the Subscription Service is legally valid, enforceable, admissible, or sufficient to satisfy any statutory, licensing, insurance or health-regulator requirement that applies to you. You should have your waivers reviewed by your own legal counsel.
5A.3 Your responsibility for consent and eligibility. You are solely responsible for: (i) obtaining any consent required by law before collecting information from a client, including any health information or identity document your waiver requests; (ii) verifying the identity and age of the person signing, and obtaining any parental or guardian consent required where your jurisdiction permits a minor to be tattooed or pierced; (iii) confirming that the person signing has authority to do so; and (iv) satisfying any requirement in your jurisdiction for a witness, an in-person signature, a wet-ink signature, or a specific form of record. The Subscription Service does not verify identity, age, capacity or authority, and does not perform identity-document verification.
5A.4 Consent to electronic records and signatures. By using the waiver functionality you consent, and you are responsible for obtaining your client's consent, to conduct the transaction electronically and to the use of electronic records and electronic signatures in place of paper documents and handwritten signatures. Each party acknowledges that an electronic signature captured through the Subscription Service is intended to have the same legal effect as a handwritten signature to the extent permitted by applicable law, including Canada's Personal Information Protection and Electronic Documents Act Part 2 and provincial electronic-commerce and electronic-transactions legislation, the U.S. Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Uniform Electronic Transactions Act (UETA) as adopted, and comparable legislation elsewhere. Applicable law in some jurisdictions excludes certain documents from electronic execution or imposes additional requirements; determining whether your waiver may lawfully be executed electronically is your responsibility.
5A.5 The record we keep. When a client completes a waiver, we record the responses submitted, any files uploaded, the electronic signature captured, and associated metadata including the date and time of submission, the IP address the submission was made from, and the browser or device used. Before a waiver can be submitted, the signer must confirm a one-time code sent to the email address on record for them, so the submission is tied to control of that address. This record is Customer Data. You are responsible for reviewing it, for retaining it for as long as your law, regulator or insurer requires, and for exporting a copy if you need one independent of the Subscription Service.
5A.6 Signature disputes. If a client disputes that they signed a waiver, disputes its contents, or disputes the validity or effect of an electronic signature, that dispute is between you and your client. On your written request we will provide the submission record and associated metadata we hold, and reasonable assistance in interpreting it, at your cost. We will not act as an adjudicator, expert or witness on the authenticity or enforceability of a signature except as compelled by law, and we make no representation as to the evidentiary weight any court or regulator will give the record.
5A.7 Access, security and deletion. Access to waiver submissions is limited to authorized Users of your account in accordance with the roles you configure; access to uploaded files may additionally require re-authentication and each access is recorded in an activity log. You are responsible for who you grant access to. Waiver submissions, their metadata and any files uploaded with them remain in your account until deleted, and are deleted on deletion of your account, in accordance with the 'Retention, Deletion and Retrieval of Customer Data' section and the DPA. Where the Subscription Service provides a means to delete an individual submission or client record, deletion is permanent and we cannot restore it; where it does not, the information is removed when your account is deleted. If your jurisdiction requires you to retain signed waivers for a minimum period, or if you need to delete a specific client's records on request, you must not rely solely on the Subscription Service to satisfy that obligation — keep your own copy and contact us at [email protected] if you need assistance with a deletion you cannot perform yourself.
5A.8 Indemnity. Your obligations under the 'Indemnification' section apply to any claim arising out of or relating to a waiver or form you created, sent, or relied on, its content, its legal sufficiency, the collection of information through it, or any dispute with a client concerning it.
6. INTELLECTUAL PROPERTY
6.1 This is an agreement for access to and use of the Subscription Service. Except for the licence granted in the 'Mobile Applications' section, you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the InkDesk Content, the Subscription Service, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the InkDesk Content or the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us. You also agree not to access or use the Subscription Service or InkDesk Content in order to build a competing product or service, to benchmark it for a competitor, to scrape or systematically extract data from it, or to train or fine-tune any machine-learning or artificial-intelligence model, in each case without our prior written consent.
6.2 We encourage all customers to comment on the Subscription Service, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service, without payment or attribution to you.
6.3 Copyright Complaints. If you believe content stored or displayed through the Subscription Service — including on a public booking or profile page — infringes your copyright, send a notice to [email protected] identifying the work, identifying the material and its location with enough detail for us to find it, your contact details, a statement that you have a good-faith belief the use is not authorized, and a statement that the information in your notice is accurate. We will respond to properly submitted notices, and we may remove content and suspend or terminate the account of a customer who repeatedly infringes.
6.4 Mobile Applications.
(a) Licence. Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to download and use the InkDesk mobile applications on a mobile device that you own or control, solely for accessing the Subscription Service during your Subscription Term. All rights not expressly granted are reserved. This licence terminates automatically on expiration or termination of this Agreement or your subscription, and you must then stop using and delete the applications.
(b) Restrictions. You will not, and will not permit anyone else to: copy, modify or create derivative works of the applications; reverse engineer, decompile or disassemble them except to the extent applicable law prohibits that restriction; rent, lease, lend, sell, redistribute or sublicense them; remove or alter any proprietary notice; or use them on a device on which the operating system's security controls have been circumvented.
(c) Updates. We may issue updates to the applications, including updates delivered over the air outside the app stores. Updates are subject to this Agreement. Functionality may depend on running a supported version, and older versions may stop working with the Subscription Service.
(d) App-store terms. Your download and use of the applications is also subject to the terms of the app store you obtained them from (the Apple App Store or Google Play). Where those terms conflict with this Agreement in respect of the applications, the app-store terms control for that conflict. You represent that you are not located in a country subject to a U.S. Government embargo or designated as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
(e) Apple. The following applies to the application obtained from the Apple App Store. (i) This Agreement is between you and InkDesk only, not with Apple, and Apple is not responsible for the application or its content. (ii) The licence in subsection (a) is limited to use on an Apple-branded product that you own or control, as permitted by the Usage Rules in the Apple Media Services Terms and Conditions, except that the application may be accessed by other accounts associated with you via Family Sharing or volume purchasing. (iii) Apple has no obligation to furnish maintenance or support for the application. (iv) If the application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price (if any); to the maximum extent permitted by law Apple has no other warranty obligation with respect to the application. (v) Apple is not responsible for addressing any claim by you or a third party relating to the application, including product liability claims, claims that the application fails to conform to a legal or regulatory requirement, and claims arising under consumer protection, privacy or similar legislation. (vi) In the event of a third-party claim that the application or your use of it infringes intellectual property rights, InkDesk, not Apple, is responsible for the investigation, defence, settlement and discharge of that claim. (vii) You must comply with any applicable third-party terms when using the application. (viii) Apple and its subsidiaries are third-party beneficiaries of this section, and on your acceptance of this Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce this section against you as a third-party beneficiary.
(f) Google. The application obtained from Google Play is subject to the Google Play Terms of Service. Google is not a party to this Agreement and is not responsible for the application.
7. CONFIDENTIALITY
7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party's cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party's inquiries in connection with the request to disclose the Confidential Information.
8. PUBLICITY
You grant us the right to identify you as a customer and to use your business name and logo on our website and in our marketing materials. You may withdraw this permission at any time by contacting us at [email protected], and we will stop the use within a reasonable period. We will not use a photograph of your work, or of any client, without your separate written permission.
9. INDEMNIFICATION
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
(a) unauthorized or illegal use of the Subscription Service by you or your Affiliates,
(b) your or your Affiliates' noncompliance with or breach of this Agreement,
(c) your or your Affiliates' use of Third-Party Products,
(d) the unauthorized use of the Subscription Service by any other person using your User information,
(e) Customer Data or Customer Materials, including any claim that they infringe or misappropriate a third party's intellectual property, privacy, publicity or other rights, or that they are unlawful, defamatory or otherwise actionable,
(f) any waiver, consent form, release, questionnaire or booking form you created, sent, stored or relied on using the Subscription Service, including its content, its legal sufficiency, the information collected through it, and any dispute with a client concerning it or concerning an electronic signature,
(g) any claim by, or dispute with, one of your clients or prospective clients — including any claim relating to a consultation, appointment, tattoo, piercing or other service you provide, a deposit, cancellation, no-show, rescheduling, refund or chargeback, a photograph or image of a client, or the collection or use of a client's personal information,
(h) any message, email or other communication you sent or caused to be sent using the Subscription Service, including any claim under CAN-SPAM, Canada's Anti-Spam Legislation, the Telephone Consumer Protection Act, or any applicable privacy or electronic-marketing law, or any breach of a third-party platform's terms in connection with an integration you connected, or
(i) any dispute between you and another artist, a studio, or a member of your account, including any dispute about the ownership of, or access to, Customer Data or about a payment split or payout arrangement.
You will pay any damages, costs and reasonable legal fees finally awarded against us, or agreed in settlement, in respect of an Action covered by this section.
We will: notify you in writing promptly after becoming aware of any such claim, provided that a failure or delay in giving notice relieves you of your obligations only to the extent you are materially prejudiced by it; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. DISCLAIMERS; LIMITATION OF LIABILITY
10.1 Performance Warranty. We warrant that: (i) the Subscription Service will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the 'Effect of Termination or Expiration' provision of this Agreement.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE 'PERFORMANCE WARRANTY' SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, OR INKDESK CONTENT FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE AND INKDESK CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
10.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE 'INDEMNIFICATION' SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED CANADIAN DOLLARS (CAD $100).
10.5 Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
11. MISCELLANEOUS
11.1 Amendment; No Waiver.
We may modify any part or all of the Agreement by posting a revised version at https://inkdesk.app/legal/terms-of-service. The revised version will become effective and binding thirty (30) days after we send you notice of it, unless we state a later date, or an earlier date where the change is required by law or is necessary for security. Changes take effect immediately for customers who subscribe after the revised version is posted. We will provide you notice of this revision by email or in-app notification.
If you do not agree with a modification to the Agreement, your remedy is to stop using the Subscription Service and cancel your subscription before the modification takes effect, in which case we will refund any prepaid but unused fees for the remainder of your then-current Subscription Term. If you continue to use the Subscription Service after the modification takes effect, you accept it.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted. Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Compliance with Laws. We will comply with the laws applicable to us in our provision of the Subscription Service and our processing of Customer Data, including applicable Canadian federal and provincial privacy legislation and, where applicable to us, the data protection laws described in the DPA. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
You will comply with all applicable laws in your use of the Subscription Service, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service.
You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service by prohibited countries or individuals.
11.6 Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.7 Electronic Communications and Consent. You consent to receive communications from us electronically, including by email to the address on your account, by notice within the Subscription Service, and by push notification if you have enabled it in a mobile application. You agree that all agreements, notices, disclosures, billing statements and other communications we provide to you electronically satisfy any legal requirement that they be in writing, and that an electronic record and an electronic signature have the same legal effect as a paper record and a handwritten signature to the extent permitted by applicable law. You may withdraw this consent by contacting us at [email protected], but if you do we may be unable to continue providing the Subscription Service to you. You cannot opt out of transactional and administrative communications relating to your account, your security, or this Agreement while your account remains open. You are responsible for keeping your email address current and for maintaining access to it; a communication is deemed received when sent to the address on your account. To access and retain electronic communications you need a device with an internet connection, a current browser or the current version of our mobile application, and the ability to receive email and to view and save PDF files.
11.8 Notices. To InkDesk: Notice will be sent to the address set forth in the 'Contracting Entity; Governing Law; Notice' section, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our InkDesk Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. You must keep all of your account information current.
11.9 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy is the entire agreement between us for the Subscription Service and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
11.10 Account Ownership and Transfer. The account owner may transfer ownership of an InkDesk account to another member of that account using the transfer functionality in the Subscription Service, which requires re-authentication. To transfer ownership to someone who is not yet a member, invite them to the account first. We may require evidence that the transferor is the account owner and that the transferee accepts this Agreement, and we may decline or delay a transfer where ownership is disputed, where we are not reasonably satisfied as to authority, or where the account is suspended or in arrears.
If an account owner dies, becomes incapacitated, or ceases to exist as a legal entity, we may, on receiving evidence we consider adequate, transfer the account to a personal representative, successor or other person who we are reasonably satisfied is entitled to it — or, where no such person is identified within a reasonable period, treat the account as terminated in accordance with the 'Effect of Termination or Expiration' section. We are not obliged to determine who is entitled to an account, and we will have no liability for acting in good faith on evidence that later proves incorrect.
11.11 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any InkDesk Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.12 No Third Party Beneficiaries. Except as expressly provided in the 'Mobile Applications' section with respect to Apple Inc. and its subsidiaries, nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. For the avoidance of doubt, no client, customer or other individual with whom you interact using the Subscription Service is a third-party beneficiary of this Agreement.
11.13 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.14 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
11.15 Survival. The following sections will survive the expiration or termination of this Agreement: 'Definitions', 'Fees', 'Prohibited and Unauthorized Use', 'Sensitive Information and Regulated Data', 'Beta and Early-Access Features', 'Client Payments and Deposits', 'Early Cancellation', 'Termination for Cause', 'Suspension for Prohibited Acts', 'Suspension for Non-Payment', 'Suspension for Present Harm', 'Suspension and Termination of Free Services', 'Effect of Termination or Expiration', 'Customer's Proprietary Rights', 'Your Clients', 'Digital Waivers and Electronic Signatures', 'Intellectual Property', 'Mobile Applications', 'Third-Party Integrations', 'Confidentiality', 'Publicity', 'Indemnification', 'Disclaimers; Limitation of Liability', 'Electronic Communications and Consent', 'Miscellaneous' and 'Contracting Entity; Governing Law; Notice'.
11.16 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
11.17 Contracting Entity; Governing Law; Notice.
(a) Contracting Entity. The InkDesk entity you are contracting with is InkDesk Inc., a corporation incorporated under the Canada Business Corporations Act (corporation number 1535227-4), with its registered office at 2144 Glenhampton Road, Oakville, Ontario L6M 3X1, Canada. References in this Agreement to "InkDesk", "we", "us" and "our" mean that entity.
(b) Governing Law. This Agreement, and any dispute, claim or controversy arising out of or relating to this Agreement or its subject matter or formation (including non-contractual disputes or claims), is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
(c) Venue. The courts located in Toronto, Ontario will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement, and each party irrevocably submits to the personal jurisdiction and venue of those courts and waives any objection based on inconvenient forum. Nothing in this section prevents either party from seeking injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property or Confidential Information.
(d) Consumer Rights Preserved. Nothing in this section deprives you of the protection of any mandatory provision of the law of the country or province in which you are habitually resident, where applicable law does not permit those protections to be excluded or where you are entitled to bring proceedings in your local courts.
(e) Notices to InkDesk. Notices to InkDesk under this Agreement must be sent to 2144 Glenhampton Road, Oakville, Ontario L6M 3X1, Canada, with a copy by email to [email protected], and are deemed delivered on actual receipt.
(f) Third-Party Beneficiaries. Except as expressly stated in the 'Mobile Applications' section with respect to Apple, this Agreement does not confer any right, benefit or remedy on any third party.
APPENDIX 1
ADDITIONAL COVERAGE TERMS
Applicability. This Appendix 1 forms part of, and applies to, this Agreement for all customers. Where it conflicts with the General Terms, this Appendix 1 controls.
InkDesk Indemnification
We will indemnify, defend and hold you harmless, at our expense, against any Action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with you to the extent that such Action is based upon or arises out of (1) an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).
You will: notify us in writing within thirty (30) days of you becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
We will not have any obligation or liability under this section if the alleged claim is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, (iii) use of the Subscription Service in violation of or outside the scope of this Agreement, (iv) an allegation that the Subscription Service consists of a function, system or method traditionally utilized in marketing, sales or services software that is not commercially unique to the Subscription Service, and the commercially unique aspects of the Subscription Service are not identified in the allegation giving rise to the claim, or (v) user interface or related user design elements not provided by us.
Notwithstanding the foregoing, in the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense: (a) modify the Subscription Service or provide you with substitute Subscription Service that is non-infringing; or (b) obtain a license or permission for you to continue to use the Subscription Service, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your access to the Subscription Service (or to a portion of the Subscription Service as necessary to resolve the claimed infringement) and refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the 'Effect of Termination or Expiration' provision of this Agreement. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.