RE:INVENT - TERMS & CONDITIONS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
a. “Agreement” means these Terms and Conditions together with any documents referred to in it;
b. “Applicable Data Protection Laws” means: (a) to the extent the UK GDPR and the Privacy and Electronic Communications Regulations 2013 apply, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data;
c. “Authorised Users” means those employees, contractors and agents of the Client who are authorised by the Client to use the Platform through the Shopify Store and the Documentation in accordance with this Agreement;
d. “Background IPR” means any and all Intellectual Property Rights that are owned by or licensed to a party which are or have been developed independently of the Agreement (whether prior to the Effective Date or otherwise);
e. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
f. “Business Hours” means 9.00 am to 5.00 pm local UK time, each Business Day;
g. “Client” means the party entering into this Agreement in order to receive the Services;
h. “Client Material” means the inputs, data and other materials uploaded to the Platform or otherwise provided by the Client, the Authorised Users or any other party on the Client's or Authorised Users’ behalf for the purpose of using the Platform or the Documentation or facilitating the Client's or Authorised Users’ receipt of the Services, excluding the Client Personal Data;
i. “Client Personal Data” means personal data which the Supplier processes under or in connection with the Agreement in the capacity of processor on behalf of the Client;
j. “Confidential Information” has the meaning given to it in clause 11.1;
k. “Contract Year” means each 12 month period commencing on the Effective Date and each anniversary thereof;
l. “Documentation” means the document made available to the Client by the Supplier online at https://www.reinventecom.com/ or such other web address notified by the Supplier to the Client from time to time which sets out a description of the Platform ;
m. “Effective Date” means the date the Client downloads the Platform and accepts this Agreement;
n. “EU GDPR” means the General Data Protection Regulation ((EU) 2016/679);
o. “Force Majeure Event” means events outside the Supplier’s reasonable control including: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) non-performance by suppliers or subcontractors; (i) interruption or failure of utility service; (j) damage, removal, interruption or unavailability of the Client’s Shopify Store;
p. “Foreground IPR” means any and all Intellectual Property Rights that are developed under or arise out of or in connection with the Agreement (excluding Background IPR);
q. “Initial Subscription Term” means the one month period from the Effective Date;
r. “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
s. “Platform” means the Supplier’s proprietary SaaS platform made available by the Supplier and described in the Documentation;
t. “Renewal Period” means each consecutive one month period from the expiry of the Initial Subscription Term until the Agreement is terminated;
u. “Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers;
v. “Services” means the services provided by the Supplier including the provision of the Platform;
w. “Shopify” means the Shopify entity which provides the Shopify Stores and related infrastructure;
x. “Shopify App” means a third party Shopify application offered on the Shopify App Store which connects with a Shopify Store (excluding the Platform);
y. “Shopify IPR” means Intellectual Property Rights belonging to or otherwise provided by Shopify, including the Shopify App Store, Shopify web platform and Shopify mobile applications (but excluding Shopify Apps);
z. “Shopify Store” means a storefront hosted by Shopify;
aa. “Subscription Fees” means the subscription fees payable by the Client to the Supplier for the use of the Platform, as set out in their Shopify account page;
bb. “Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Periods;
cc. “Subscription Tier” means the subscription level selected by the Client as set out in their Shopify account page;
dd. “Supplier” means REINVENTECOMMERCE LIMITED, a company incorporated and registered in England and Wales with company number 14854079 whose registered office is at 60 Greenlands Road, Weybridge, England, KT13 8PS;
ee. “UK GDPR” has the meaning given to it in the Data Protection Act 2018;
ff. “Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
gg. “Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.3. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.5. References to clauses and schedules are to the clauses and schedules of this Agreement.
1.6. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to writing or written excludes fax but includes email.
1.7. Unless the context otherwise requires: (a) words in the singular shall include the plural and in the plural shall include the singular; and (b) a reference to one gender shall include a reference to the other genders.
2. SHOPIFY AND SHOPIFY APPS
2.1. This Agreement is a contract between the Client and the Supplier and sets out the terms and conditions applicable to the Client’s use of the Platform in conjunction with the Client’s Shopify Store. By downloading the Platform, the Client agrees to be bound by the terms of this Agreement.
2.2. The Client acknowledges and agrees that:
(a) the Shopify IPR is provided by Shopify and not by the Supplier and the Supplier shall not be responsible for any aspect of the Shopify IPR including access to or availability of the Shopify IPR;
(b) the Shopify Apps are provided by third parties and not by the Supplier and the Supplier shall not be responsible for any aspect of the Shopify Apps including access to or availability of the Shopify Apps;
(c) access to the Client’s Shopify Store and other linked Shopify Apps (as notified to the Client from time to time) will be required to use the Platform and receive the Services, and any failure to provide such access may prevent the Client from being able to receive some or all of the Services;
(d) it may from time to time be obliged to enter into and comply with third party terms imposed by Shopify and/or other third parties in respect of its Shopify Store and/or Shopify Apps to which the Supplier is not party and over which the Supplier has no control; and
(e) the Client’s contractual relationship in relation to: (i) the provision of the Shopify Store is with Shopify and not with the Supplier; and (ii) the provision of the Shopify Apps is with the relevant third party provider and not with the Supplier.
(f) the Client is solely responsible for complying with the terms of its contracts with Shopify and/or other third parties in relation to the Shopify Store and Shopify Apps and shall promptly notify the Supplier if any activity under this Agreement breaches or is likely to breach the terms of such contracts.
3. PLATFORM USE
3.1. Subject to the Client’s compliance with the terms of this Agreement, the Supplier grants to the Client a non-exclusive, non-transferable, revocable licence, without the right to grant sublicences (other than to the Authorised Users), to permit the Authorised Users to use the Platform and the Documentation during the Subscription Term solely for the Client’s internal business purposes in respect of the Client’s Shopify Store.
3.2. In relation to the Authorised Users, the Client undertakes that
(a) each Authorised User shall keep their access credentials to the Platform secure and confidential; and
(b) it shall maintain a written, up to date list of current Authorised Users and provide such list promptly to the Supplier on request.
3.3. The Client shall not (and shall ensure that its Authorised Users shall not) use the Platform in any manner which:
(a) involves accessing, storing, distributing or transmitting any Viruses or other harmful material;
(b) is false, unlawful, harmful, threatening, abusive, defamatory, obscene, infringing, threatening, harassing or racially or ethnically offensive;
(c) conceals or misrepresents their identity or steals someone else's identity;
(d) is spam or is otherwise excessive in nature;
(e) facilitates illegal activity;
(f) depicts or promotes sexually explicit images;
(g) promotes unlawful violence or activities which may endanger life or lead to physical harm;
(h) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(i) is otherwise illegal or causes damage or injury to any person or property,
hh. and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to the Platform and/or its account if: (i) it reasonably suspects the Client has breached this clause 3.3; or (ii) it has received a complaint from any party in respect of the Client’s use or misuse of the Platform or content it has uploaded to the Platform.
3.4. The Client shall not (and shall ensure that its Authorised Users shall not):
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
(b) access all or any part of the Platform or Documentation in order to build a product or service which competes with the Platform and/or the Documentation; or
(c) use the Platform and/or Documentation to provide services to third parties (other than the Authorised Users); or
(d) subject to clause 16.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform or Documentation available to any third party except the Authorised Users;
(e) manipulate identifiers to disguise or otherwise conceal the origin of messages or of the content posted;
(f) probe, scan or test the vulnerability of the Platform, including the services or any network connected to the Platform;
(g) breach or attempt to breach the security or authentication measures on the Platform, including the services or any network connected to it;
(h) attempt to disrupt or tamper with the technical infrastructure in a manner that harms or places an undue burden on the Platform or the Services;
(i) attempt to obtain, or assist third parties in obtaining, access to the Platform or Documentation, other than as provided under this clause 3;
(j) adopt any automated process to extract, harvest or scrape information, data and/or content from the Platform and/or the Services except where expressly permitted by the Supplier; or
(k) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
3.5. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6. The rights provided under this clause 3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client unless expressly stated otherwise.
3.7. The Client acknowledges and agrees that: (a) it is responsible for the acts and omissions of all persons (including Authorised Users) who access the Services and/or the Documentation under or in connection with this Agreement; and (b) any potential savings and/or efficiencies which are indicated by the Platform or by the Supplier are suggestions only and are not guaranteed outcomes of the Services.
3.8. The Client acknowledges that its use of the Services may produce certain non-Client specific information related to the Platform’s operation and use, including algorithms, data points and metrics. The Supplier may use such non-Client specific information in any manner to develop the Platform and its other service offerings.
4. SUPPLIER’S OBLIGATIONS
4.1. The Supplier shall for the duration of the Subscription Term provide:
(a) the Platform substantially in accordance with the Documentation as applicable for the relevant Subscription Tier; and
(b) the Services with reasonable skill and care.
4.2. The Supplier shall use commercially reasonable endeavours to make the Platform available to the Client other than during periods of scheduled maintenance. Downtime for the Platform shall not include: (a) any maintenance periods where the Supplier has used reasonable endeavours to give the Client reasonable notice of such maintenance periods in advance; or (b) any unavailability caused by downtime or other unavailability for any reason of the Shopify IPR, Shopify Apps or the Client’s Shopify Store.
4.3. The Supplier may suspend the Platform in order to perform emergency maintenance which is necessary to ensure the continued and/or secure provision of the Service at any time without prior written notice.
4.4. The undertaking at clause 4.1 shall not apply to the extent any non-conformance is caused by use of the Platform or Documentation contrary to the Supplier's instructions, or modification or alteration of the Platform by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Platform does not conform with the undertaking at clause 4.1 the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1.
4.5. Except where otherwise specified in this Agreement, the Supplier does not warrant that: (a) the Client's use of the Services will be uninterrupted or error-free; (b) that the Services, Documentation and/or the results obtained by the Client through the Services will meet the Client's requirements; or (c) that the Platform will be free from Vulnerabilities or Viruses.
4.6. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Platform and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.7. This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
4.8. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
4.9. The Client acknowledges that it is its responsibility to keep copies of Client Material to the extent it requires such Client Material to be backed up. In the event of any loss or damage to Client Material, the Client's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Material from the latest back-up of such Client Material maintained by the Supplier in accordance with its archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Material caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Material maintenance and back-up for which it shall remain fully liable). This provision is without prejudice to the Supplier’s obligations under clause 5 (Data Protection).
4.10. The Supplier may make changes to the provisions of this Agreement from time to time. If any such changes will materially affect the provision of the Services, the Supplier shall give the Client no less than 30 days’ notice before the changes take effect, and the Client may object to such change in writing within 7 days of the date of such notice. If the Client objects to the proposed change in accordance with this provision, the Agreement shall terminate at the end of the Initial Subscription Term or then-current Renewal Period and the unamended provisions of the Agreement shall continue to have effect during such period until termination.
5. DATA PROTECTION
5.1. For the purposes of this clause 4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
5.2. Each party shall comply with all applicable requirements of Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
5.3. The parties have determined that, for the purposes of Applicable Data Protection Laws, the Supplier shall process the personal data set out in Appendix 1 as a processor on behalf of the Client in respect of the processing activities set out in Appendix 1. If this determination changes, the parties shall work together in good faith to make any changes necessary to this clause 5 or Appendix 1.
5.4. Without prejudice to the generality of clause 5.2, the Client will ensure it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier and lawful collection of the same by the Supplier for the duration and purposes of the Agreement.
5.5. Without prejudice to the generality of clause 5.2, for the purposes of direct marketing, the Client shall ensure:
(a) Opt-in consent has been obtained from the relevant data subjects and the data subjects have been informed of the purposes of direct marketing in relation to the Services to allow the Client Personal Data to be used for the purposes of direct marketing, including third party marketing, in compliance with the Applicable Data Protection Laws; and
(b) effective procedures are in place to allow the data subjects to "opt-out" from having Client Personal Data used for such direct marketing purposes in compliance with Applicable Data Protection Laws.
5.6. In relation to the Client Personal Data, Appendix 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
5.7. Without prejudice to the generality of clause 5.2 the Supplier shall, in relation to Client Personal Data:
(a) process the Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in Appendix 1, unless the Supplier is required by applicable law to otherwise process that Client Personal Data in which case the Supplier shall notify the Client of this before performing the processing required by applicable law unless such applicable law prohibits the Supplier from doing so on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, the Client Personal Data, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidential;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless the Supplier is required by applicable law to continue to process that Client Personal Data. For the purposes of this provision, Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
(g) maintain records to demonstrate its compliance with this clause 5.
5.8. The Client hereby provides its prior, general authorisation for the Supplier to:
(c) appoint processors to process the Client Personal Data, provided that the Supplier:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 5;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;
(b) transfer Client Personal Data outside the UK or EU, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
6. CLIENT’S OBLIGATIONS
6.1. The Client shall:
(a) provide the Supplier with such:
(i) co-operation in relation to this Agreement;
(ii) access to and integration with the Client’s Shopify Store;
(iii) access to and integration with the Client’s other Shopify Apps (including third party marketing applications such as Klaviyo); and
(iv) information as may be required by the Supplier (including but not limited to the Client Materials);
1. as is required in order to provide the Services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
(d) ensure that the Authorised Users use the Platform and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for it to perform its obligations under this Agreement;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
6.2. The Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Client Material. The Client confirms to the Supplier that it has all necessary rights, licences, consents and permissions to provide the Client Material to the Supplier under or in connection with this Agreement.
6.3. The Client shall have sole responsibility in respect of decision making relating to use of the Platform and the Supplier shall have no responsibility in respect of the instructions given or business decisions taken by the Client using or through the Platform. The Client acknowledges that it is its sole responsibility to operate its Shopify Store in compliance with all applicable terms and conditions and in an appropriate manner for its business.
6.4. If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall not be liable for such delay or non-performance and shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
7. CLIENT COMPLIANCE
7.1. The Client shall comply with the reasonable instructions of the Supplier in respect of its use of the Services.
7.2. The Client acknowledges that the Supplier shall be responsible only for the provision of the Platform and the Documentation and shall have no responsibility for: (a) the acts or omissions of the Authorised Users when using the Platform; (b) the Client’s Shopify Store; or (c) any decisions the Client makes in respect of the Shopify Store on the basis of any output of the Services.
7.3. The Client has sole responsibility for the Client Material and the Supplier shall have no obligation to verify any Client Material.
7.4. The Supplier may without liability to the Client suspend the Services without prior notice if: (a) it reasonably suspects the Client is in breach of the terms of this Agreement; (b) it suspects the Client Material infringes the rights of any party; (c) it receives a complaint in respect of the Client Material; (d) it is required to do so by law or competent authority; or (e) the Client’s use of the Services presents a risk to the Platform, the availability of the Services or a third party.
7.5. The Client shall indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (a) the Client Material and; (b) any act or omission of the Authorised Users on the Platform.
8. NON-CIRCUMVENTION
8.1. The Client acknowledges that the Services provided by the Supplier enable the Client to identify prospective commercial partners. In order to protect the legitimate business interests of the Supplier, the Client undertakes that it shall not directly or indirectly:
(a) contact, induce, deal with or otherwise solicit any third party who was identified to the Client through the use of the Services (“Introduced Party”) in respect of any commercial activity which is the same as or similar to that facilitated by the Services;
(b) seek, encourage or respond to any approach from any Introduced Party to pursue in respect of any commercial activity which is the same as or similar to that facilitated by the Services.
8.2. The Client shall procure that its officers, employees, agents, advisers and other representatives comply with clause 8.1 as if they were the Client.
8.3. The restriction in clause 8.1 shall not apply:
(a) where the Client can demonstrate that it was already in discussions with or has a commercial partnership with the Introduced Party prior to its use of the Services; or
(b) after a period of 6 months following the termination or expiry of the Agreement.
9. FEES AND PAYMENT
9.1. The Client acknowledges and agrees that it is obliged to pay the Subscription Fees to the Supplier as part of its overall fees payable to Shopify in respect of the Shopify Store and its other subscriptions. In the event that the Client does not pay the Subscription Fees to Shopify, it acknowledges that it may be liable to both Shopify and the Supplier in respect of unpaid fees.
9.2. If the Supplier determines that Shopify has not received payment of any Subscription Fees within 14 days after the due date, and without prejudice to any other rights and remedies of the Supplier or Shopify:
(a) the Supplier may, without liability to the Client, disable the Client's account and access to all or part of the Platform and Documentation and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3. The Client shall indemnify the Supplier in respect of any losses it suffers in connection with any claim or other action from Shopify in relation to unpaid Subscription Fees.
9.4. The Subscription Fees:
(a) shall be payable in the local currency of the Client’s Shopify Store; and
(b) are inclusive of value added tax.
9.5. The Supplier shall be entitled to vary the Subscription Fees, such variation to take effect on the date notified to the Client upon at least 30 days' prior written notice. If the Client objects to the change, it must notify the Supplier of its objection within 14 days of receiving the notice of the increase, in which case the then-current Subscription Fees shall continue to apply and the Agreement will terminate at the end of the Initial Subscription Term or the then-current Renewal Period.
10. PROPRIETARY RIGHTS
10.1. Each party (or its licensors as applicable) shall own all right, title and interest (including Intellectual Property Rights) in and to its Background IPR.
10.2. The Supplier shall own all right, title and interest (including Intellectual Property Rights) in and to all of the Foreground IPR upon creation. To the extent these do not automatically vest in the Supplier, the Client hereby assigns all such right, title and interest (including Intellectual Property Rights) in the Foreground IPR to the Supplier.
10.3. Subject to the Client’s compliance with the terms of the Agreement, the Supplier grants to the Client (or shall procure the granting to the Client of) a worldwide, non-sublicensable (other than to the Authorised Users), revocable, non-transferable licence to use the Foreground IPR, other than those Intellectual Property Rights licensed under clause 3.1, for the duration of the Subscription Term solely to the extent necessary for the Client to use the Platform in accordance with the Agreement.
10.4. The Client grants to the Supplier (or shall procure the granting to the Supplier of) a worldwide, sublicensable, fully paid up, royalty-free, non-exclusive licence to use, access, store, copy, modify, distribute, transmit and/or publish the Client’s Background IPR to the extent necessary for the Supplier to provide the Platform and otherwise perform its obligations under the Agreement.
10.5. The Client acknowledges that the Platform interoperates with and relies upon the Shopify IPR and the Shopify Apps, which are not within the Supplier’s ownership or control. This Agreement does not give any right to use the Shopify IPR or the Shopify Apps and the Supplier shall not be responsible for the Shopify IPR or the Shopify Apps. The Client has sole responsibility in respect of: (a) its use of the Shopify IPR and the Shopify Apps; and (b) the integration of the Platform with the Shopify Store and the Shopify Apps, including obtaining relevant licences and compliance with all terms applicable to the Shopify IPR and the Shopify Apps.
10.6. The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (a) the Client’s and/or its Authorised Users’ use of the Supplier’s Background IPR or Foreground IPR in breach of the Agreement; (b) the Client’s use and provision of the Shopify IPR and Shopify Apps; (c) any breach of third party terms and conditions caused by the Client’s acts or omissions.
11. CONFIDENTIALITY
11.1. “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives in connection with the Agreement, whether before or after the date of the Agreement, including:
(a) the existence and terms of the Agreement;
(b) information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs;
(c) any information developed by the parties in the course of carrying out this Agreement and the parties agree that details of the Platform, the Documentation, the Services and the results of any performance tests in relation to the Platform, shall constitute the Supplier’s Confidential Information; and
(d) any other information that would reasonably be regarded as confidential by a reasonable business person.
11.2. The provisions of this clause 11 shall not apply to any Confidential Information which:
(a) is or becomes generally available to the public (other than as a result of the receiving party or its Representatives breaching this clause 11);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by obligations of confidentiality or otherwise prohibited from disclosing the information to the receiving party;
(d) the parties agree in writing is not confidential or may be disclosed;
(e) belongs to the Client and the Client wishes or requests to be disclosed to a third party user of the Platform as part of the Services; or
(f) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
11.3. Each party shall keep the other party’s Confidential Information secret and confidential and shall not: (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement; or (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
11.4. A party may disclose the other party’s Confidential Information to those of its Representatives on a need to know basis, provided that: (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and (b) it is at all times responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause 11.
11.5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
11.6. On termination or expiry of this Agreement, subject to clause 5, each party shall:
(a) destroy or if requested to do so return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) if requested to do so, certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
11.7. The provisions of this clause 11 shall continue to apply after termination or expiry of this Agreement.
12. INDEMNITY
12.1. The Client shall defend, indemnify and hold harmless the Supplier, its officers, directors and employees against any claim against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s and/or its Authorised Users’ use of the Services and/or Documentation in breach of this Agreement.
12.2. The Supplier shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Platform in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Client does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
12.3. In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Platform, replace or modify the Platform so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
12.4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client including under the indemnity in clause 12.2 to the extent that the alleged infringement is based on:
(a) a modification of the Platform or Documentation by anyone other than the Supplier;
(b) the Client’s use of the Platform or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or
(c) the Client’s use of the Platform or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5. The foregoing and clause 13.4 state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability for infringement of any third party’s Intellectual Property Rights.
13. LIMITATION OF LIABILITY
13.1. Subject to clause 13.2, except as expressly provided in this Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use, and the Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Client on an “as is” basis.
13.2. Nothing in this Agreement limits or excludes the liability of a party:
(a) for death or personal injury caused by its negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
13.3. Subject to clause 13.2, the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of anticipated savings;
(d) loss of agreement or contracts;
(e) depletion of goodwill and/or similar losses;
(f)loss or corruption of data or information (other than breach of clause 5);
(g) pure economic loss; or
(h) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
13.4. Subject to clause 13.2, the Supplier’s total aggregate liability in each Contract Year whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with this Agreement shall be limited to the greater of:
(a) £3,000;
(b) and the total Subscription Fees paid to the Supplier in that Contract Year.
13.5. Nothing in this Agreement excludes the liability of the Client for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
14. TERM AND TERMINATION
14.1. The Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive Renewal Periods unless:
(a) either party notifies the other party of its intention to terminate, in writing, at least 7 days before the end of the Initial Subscription Term or then-current Renewal Period (as applicable), in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or then-current Renewal Period; or
(b) it is otherwise terminated in accordance with the provisions of this Agreement.
14.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
14.3. For the purposes of clause 14.2(b), any breach by the Client of clause 2 shall constitute a material breach of the Agreement.
14.4. On termination or expiry of this Agreement for any reason:
(a) except where otherwise specified, all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Services and the Documentation;
(b) the Client shall provide the Supplier with reasonable cooperation and assistance in decommissioning the Services;
(c) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(d) the Supplier shall be entitled to invoice for any Subscription Fees which have been incurred since the Client’s last payment date and the Client shall promptly pay such invoice in accordance with clause 8;
(e) without prejudice to the Supplier’s obligations under clause 4.4 (data protection) the Supplier may destroy or otherwise dispose of any of the Client Material in its possession, or if requested to do so by the Client, return the Client Material in its possession to the extent reasonably practicable; and
(f) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.5. If the Supplier becomes entitled to terminate the Agreement under clause 14.2, the Supplier may, without limiting or affecting any other right or remedy available to it and without liability to the Client, elect to suspend the Services and/or the Client's account on the Platform for the period in which the relevant termination right is exercisable by the Supplier. In the event of any suspension by the Supplier pursuant to this provision, the Client shall continue to pay the Subscription Fees during such period of suspension.
15. NOTICES
15.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the email address registered to the Client’s Shopify Store in the case of the Client, or in the case of the Supplier, to the following email address: bryn@reinventecom.com
15.2. Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9am on the second Business Day after posting; or (c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume, provided in each case no bounceback message is received.
15.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16. GENERAL
16.1. Survival. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect, including clauses 1, 3.8, 5, 8, 10, 11, 13, 14.3, 15, 16.
16.2. Force majeure. The Supplier shall not be liable for any failure or delay in performing any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event, in which case the time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 90 days, the Client may terminate this Agreement by giving written notice to the Supplier.
16.3. Variation. Other than in accordance with clauses 4.10 or 9.5, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.4. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
16.5. Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.6. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.7. Entire agreement:
(a) this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter;
(b) each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement; and
(c) each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
16.8. Assignment. The Client shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.9. No partnership. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.10. Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
16.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
16.12. Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of England.
16.13. Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
APPENDIX 1 – DATA PROCESSING PARTICULARS
2. SCOPE
The personal data is processed to enable the Supplier to provide the Services to the Client pursuant to the Agreement.
3. NATURE
The processing of the personal data includes obtaining, matching, analysing, storing and retrieving the personal data.
4. PURPOSE OF PROCESSING
The personal data will be processed to enable the Supplier to provide the Platform and the Services to the Client in accordance with the Agreement.
5. DURATION OF THE PROCESSING
The personal data will be processed for the duration of the Client’s subscription to the Platform and/or Services.
6. TYPES OF PERSONAL DATA
The personal data to be processed for the Client’s employees, agents and contractors who use the Services will include:
- names;
- email addresses;
- and job titles;
The personal data to be processed for the Client’s customers, subscribers and visitors to the Client’s Shopify Store will include:
- personal and contact details e.g. name, address, email address, date of birth
- information about customers’ transaction e.g., date, time, purchase amount, products purchased, etc.technical information e.g. IP address
- information generated by the Client about its customers e.g. information about customers visiting the Client’s Shopify Store
7. CATEGORIES OF DATA SUBJECT
The categories of data subject will be the Client’s employees, agents and contractors who use the Services and the Client’s customers, subscribers and visitors to the Client’s Shopify Store.
8. PROCESSORS
The sub-processors we appoint are:
Processor nameCountry/ies where the sub-processor will be processing and description of processing Name, position and contact details of the contact point for the sub-processorGoogle Cloud https://www.google.com/about/datacenters/locations/ https://support.google.com/a/contact/googlecloud_dpr
