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App Attic Terms of Service

Last Updated: November 11th 2021

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to our App Attic Software and services.

1. Definitions and Interpretation

1.1. In The Agreement

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means the agreement between the Provider and the Customer for the provision of the Software as a service, incorporating these terms and conditions (including the Schedules) and any amendments to the Agreement from time to time;

“Business Day” means any week day, other than a bank or public holiday in England;

“Business Hours” means between 09:00 and 17:00 GMT on a Business Day;

“Charges” means the amounts payable by the Customer to the Provider via the Shopify Platform under or in relation to the Agreement (as set out in Schedule 2);

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the person, business or legal entity for which installs and uses the Software, as well as its principals, agents and/or representatives. The details used to identify the customers will be the one provided for the Customer’s Shopify Account;;

“Customer Confidential Information” means (a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential; (b) the financial terms and conditions of the Agreement; and (c) the Customer Materials;

"Customer Data" all data: (a) uploaded to, stored on, processed using or transmitted while using the Software by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and (b) otherwise provided by the Customer to the Provider in connection with the Agreement;

“Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Software, but excluding any defect, error or bug caused by or arising as a result of: (a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or (b) an incompatibility between the Software and any other system, application, program or software not specified as compatible;

"Documentation" means the documentation produced by the Provider and made available on the Software to the Customer specifying how the Software should be used;

“Effective Date” means the date that the Software is installed;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Permitted Purpose" means the use of the Software by the Customer to manage its online store (and CRM data if required);

“Personal Data” has the meaning given to it in the UK GDPR of January 2021;

“Provider” means App Attic Limited, a company incorporated in England and Wales (registration number 13045669) having its registered office at  Flat 22, Lawford Mews, 28 Waterloo Road, Bristol, BS20PN;

“Schedule” means a schedule attached to the Agreement;

“Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;

“Shopify” or “Shopify platform” means the www.shopify.com website and platform, along with all the related and affiliated services and websites, its operators, owners, affiliates and associates;

“Software” means the software apps, tools, modules and scripts made available by App Attic, to be accessed by Customer over its internet connection when using the Services.

"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1;

“Term” means the term of the Agreement; and

“Upgrades” means new versions of, and updates to, the software, whether for the purpose of fixing an error, bug or other issue in the software or enhancing the functionality of the software.

1.2. In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or reenacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3. The Clause headings do not affect the interpretation of the Agreement.

1.4. The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. Agreement and Term

2.1. The advertising of the Software on the Provider's website as well as the Shopify Platform constitutes an “invitation to treat”; and the Customer's order for the Software constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Customer accepts to enter into the Agreement and install the Software using the Shopify Platform.

2.2. In order to enter into the Agreement, the Customer must take the following steps:

(i) the Customer must decide which Software to select based on their individual needs and where applicable, select the appropriate pricing plan.

(ii) the Customer must then sign up and install the software via the Shopify platform;

(iii) the Customer will then confirm its acceptance of the terms and conditions;

(iv) the Customer will then pay for the Charges directly on the Shopify platform. The Provider will not set up a direct debit or take any payments directly as this will be handled exclusively by Shopify. Please Note: some of the Software will come with a 14-day free trial and any applicable charges for the use of the Software will take place after this period.

(v) once authentication and the download of the Software is complete in the Shopify platform, the Customer will be given access to the Software.

2.3. Once in force, the Agreement will continue in force indefinitely thereafter, unless terminated earlier in accordance with Clause 10.

3. The Software

3.1. The Provider will make available the Software using their existing Shopify Platform account. The Shopify Platform login credentials and authentication will be used for the Customer to access and use the Software.

3.2. Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Software for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.

3.3. The license granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

(a) the Software may only be used by the named users identified in the Shopify platform account, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein

(b) the Software may only be used by the employees, agents and subcontractors of the Customer and: (i) where the Customer is a company, the Customer's officers; (ii) where the Customer is a partnership, the Customer's partners; and (iii) where the Customer is a limited liability partnership, the Customer's members;

(c) the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule 3, and must ensure that all users of the Software agree to and comply with the terms of that acceptable use policy;

3.4. Except to the extent mandated by applicable law or expressly permitted in the Agreement, the license granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Services or allow any unauthorized person to accessor use the Software;

(b) the Customer must not frame or otherwise re-publish or re-distribute the Software; and
(c) the Customer must not alter or adapt or edit the Software save as expressly permitted by the Documentation.

3.5. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Software, either during or after the Term.

3.6. All Intellectual Property Rights in the Software shall, as between the parties, be the exclusive property of the Provider.

3.7. The Customer shall use all reasonable endeavors to ensure that no unauthorized person will or could access the Software using the Customer's account.

3.8. The Customer must not use the Software in any way that causes, or may cause, damage to the Software or impairment of the availability or accessibility of the Services, or any of the areas of, or services.

3.9. The Customer must not use the Software:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. Support Services and Upgrades

4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Services, in accordance with the service level agreement set out in Schedule 1.

4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

5. Customer Data

5.1. The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Data for the purposes of operating and providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.

5.2. Subject to Clause 5.1, all Intellectual Property Rights in the Customer Data will remain, as between the parties, the property of the Customer.

5.3. The Customer warrants and represents to the Provider that the Customer Data, and its use by the Provider in accordance with the terms of the Agreement, will not:

(a) breach any laws, statutes, regulations or legally-binding codes;

(b) infringe any person's Intellectual Property Rights or other legal rights; or

(c) give rise to any cause of action against the Provider or the Customer or any third party, in each case in England and Wales and under English law.

5.4. Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, the Provider may:

(a) delete or amend the relevant Customer Data; and/or

(b) suspend any or all of the Services and/or the Customer’s access to the Software while it investigates the matter.

5.5. The Provider shall ensure that the Customer Data stored and processed by the Software are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.

6. Software Trial

The Provider may, in special circumstances, set up a Software Trial. The Customer may access the Software Trial for an agreed period, during which time all of the provisions of this Agreement shall apply, save as follows:

(a) the Customer shall have no obligation to pay any Charges in respect of the Software Trial;

7. Charges

7.1. The Provider will issue invoices for the Charges using the Shopify Platform.

7.2. The Customer will pay the Charges directly to Shopify in accordance with Clause 7.1.

7.3. All Charges stated in or in relation to the Agreement are stated inclusive of VAT, unless the context requires otherwise.

7.4. The Provider may vary the Charges on and from any anniversary of the Effective Date by giving to the Customer 30 days' written notice of the variation.

7.5. The Provider may suspend access to the Services and the provision of the Software if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 21 days.

8. Limitations and Exclusions of Liability

8.1. Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable law.

8.2. The limitations and exclusions of liability set out in this Clause 8 and elsewhere in the Agreement:

(a) are subject to Clause 8.1;

(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

8.3. The Provider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

8.4. The Provider will not be liable for any loss of business, contracts or commercial opportunities.

8.5. The Provider will not be liable for any loss of or damage to goodwill or reputation.

8.6. The Provider will not be liable in respect of any loss or corruption of any data, database or software.

8.7. The Provider will not be liable in respect of any special, indirect or consequential loss or damage.

8.8. Neither party will be liable for any losses arising out of a Force Majeure Event.

8.9. The Provider’s liability in relation to any event or series of related events will not exceed the total amount paid and payable by the Customer to the Provider under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.

9. Personal Data and Data Protection

9.1. The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

9.2. The Provider warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.

9.3. Our Privacy Policy, which can be found at https://appattic.com/privacy (the “Privacy Policy”), describes how we may Use your personal information.

10. Termination

10.1. The Customer may terminate the Agreement immediately by removing/uninstalling the Software via the Shopify platform.

10.2. If the Provider stops or makes a good faith decision to stop operating the Software generally, then the Provider may terminate the Agreement by giving at least 30 days' written notice of termination to the Customer.

10.3. The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.

11. Force Majeure Event

11.1. Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

11.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will: (a) forthwith notify the other; and (b) will inform the other of the period for which it is estimated that such failure or delay will continue.

11.3. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

12. General

12.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

12.2. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

12.3. The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

12.4. Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time.

12.5. The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

12.6. The Agreement and the acceptable use policy referred to in herein constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and (b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

12.7. The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

Schedule 1. Service Level Agreement

1. Introduction

1.1 In this schedule: "New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and

1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

2. Helpdesk

2.1 The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:

(a) assisting the Customer with the configuration of the Software and the integration of the Software with the Shopify Platform;

(b) assisting the Customer with the proper use of the Software; and/or

(c) determining the causes of errors and fixing errors in the Software.

2.2 Subject to Paragraph 2.3, the Customer must make all requests for Support Services through the helpdesk, and all such requests must include sufficient information to allow the Provider to give the Customer a satisfactory resolution to its request.

3. Response and resolution times

3.1 The Provider will:

(a) use all reasonable endeavors to respond to requests for Support Services made through the helpdesk; and

(b) use all reasonable endeavors to resolve issues raised by the Customer,

3.2 The Provider will determine, acting reasonably, in to which severity category an issue raised through the Support Services falls.

3.3 All Support Services will be provided remotely.

4. Limits on Support Services

4.1 The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:

(a) the improper use of the Software; or

(b) the use of the Software otherwise than in accordance with the Documentation.

5. Upgrades

5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Software, and that such Upgrades may, subject to Paragraph 5.2, result in changes the appearance and/or functionality of the Software.

5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality.

5.3 The Provider will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Software. Such notice shall include details of the specific changes to the functionality of the Software resulting from the application of the Upgrade.

5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:

(a) the Upgrade introduces New Functionality to the Software;

(b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;

(c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Software generally; and

(d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Software.

6. Scheduled maintenance

6.1 The Provider may suspend access to the Software in order to carry out scheduled maintenance.

6.2 The Provider must give to the Customer at least 1 days' written notice of schedule maintenance, including full details of the expected Software downtime.

Schedule 2. Charges

1. Introduction

1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

1.2 The Charges under the Agreement will consist of the following elements:

(a) monthly Charges, in respect of access to and use of the Software; and

(b) other Charges.

2. Monthly Charges

2.1 The Charges in respect of access to and use of the Software shall be on a monthly basis, if the Customer chooses this option.

2.2 The Charge will be as stated on the Customer’s Shopify account. The Charge shall be invoiced by Shopify at any time following the commencement of the calendar month in respect of which the licence Charges are incurred.

2.3 If the Customer adds features and/or extras (or features and/or extras are removed) the monthly Charge will be revised at the commencement of the month following the addition (or removal) of those features and/or extras.

2.4 No refund of charges will be made if the Agreement is terminated.

3. Other Charges

3.1 In addition to the Charges detailed in Paragraph 5 of Schedule 1 above, the Provider will invoice in respect of, and the Customer shall pay to the Provider using the Shopify Platform all other Charges that are agreed between the parties in writing from time to time.

4.Payment

4.1 All charges will be paid by debit card, credit card, Paypal, or any of the online payment methods that will be made available inside the apps.

Schedule 3. Acceptable Use Policy

(1) This Policy This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our software (the “Software”) and any content that you may submit to the Software (“Content”). By using the Software, you agree to the rules set out in this Policy.

(2) General restrictions You must not use the Software in any way that causes, or may cause, damage to the Software or impairment of the availability or accessibility of the Software, or any of the areas of, or services on, the Software. You must not use the Software:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(3) Reasonable Use

You agree to use the Software in a reasonable way. If we determine that your use of the Software is not reasonable or that your use is causing degraded performance of the Software for you and for other Customers, we may impose limits on your use of the Software. Where possible we will endeavor to give you at least 24 hours prior notice that your usage is reduced before imposing any limits. Limits on your use of the Software may include, but are not limited to, the quantities and volumes of the following parameters:

(a) storage required to host and backup your data;

(b) sales transactions per calendar month;

(c) API (application programming interface) calls per 5 minute period;

(d) bandwidth usage per 24 hour period;

(e) locations, users, POS units, active SKU’s, customers.

(4) Unlawful and illegal material You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Software) must not:

(a) be libellos or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral rights, database rights, trademark rights, design rights, rights in passing off, or other intellectual property rights;

(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation; (e) constitute negligent advice or contain any negligent statement;

(e) constitute an incitement to commit a crime;

(f) be in contempt of any court, or in breach of any court order;

(g) be in breach of racial or religious hatred or discrimination legislation;

(h) be in breach of official secrets legislation; or

(i) be in breach of any contractual obligation owed to any person. You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

(5) Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Software without our express written consent.

(6) Harmful software

You must not use the Software  to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies. You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.