1. Introduction and Basic Definitions
We are Digismoothie s.r.o., a company having its registered office at Pobřežní 667/78, 186 00 Prague, the Czech Republic, ID. No. 037 18 751 registered in the Commercial Register maintained by the Municipal Court in Prague, file no. C 336746, incorporated under the laws of the Czech Republic (the “Company” or “we”) which develops the software, applications and plugins for the Shopify Stores (the “App(s)”), provides with the licences to them via Shopify App Store and provides with related services.
We are using these basic definitions throughout these T&C to make the using and reading of these T&C easier and more comprehensible:
- Agreement means the agreement between us under which we provide you with the licence to the Apps and related Services
- Client or you means you who concludes the Agreement with us
- Intercom Chat means our primary communication channel integrated to the Apps provided by Intercom service
- Fee means a fee paid for the Services
- Services means our services we provide you with on the basis of the Agreement, especially the services regarding providing of the licence to using the Apps and user support
- Shopify Company is Shopify Inc. with the registered seat at 150 Elgin Street 8th Floor Ottawa, ON K2P 1L4 Canada and its related companies (subsidiary companies etc.)
- Shopify App Store means Shopify marketplace (app store) allowing the users to install and operate their Shopify Stores available on https://apps.shopify.com/,
- Shopify Store means the online store (e-shop) maintained by the Shopify on Shopify.com platform for the Clients
- Subscription Period means 30 up to 365 days billing period
- T&C means these Terms and Conditions
By installing the App you enter into the Agreement on provision of the Services with us. You accept these T&C by installing the App and using the Services.
These T&C govern mutual rights and obligations between us arising from the using of the Apps and provision of the Services. These T&C are an integral part of the Agreement.
You may use the Intercom Chat or following contact details of the Company for communication with us:
- Mailing address: Pobrezni 667/78, 186 00 Prague, the Czech Republic
- E-mail address: email@example.com
2. App Installation
You may install our App only if you are using the Shopify Store as its operator. The App may be installed only via the Shopify App Store if you are registered and logged-in. If you are interested in how to become a Shopify user in respect of operation of the Shopify Store, you may find more information here. We may agree we will be installing the Apps on your behalf if you grant us access to your Shopify Store.
The Shopify Company provides us with all your details and information we need to enter into an Agreement with you. We are entitled to presume all your information and data provided by you to the Shopify Company are accurate, complete and updated.
We reserve the right to disable anyone to install the App, at any time and in our sole discretion, if in our opinion you have failed to comply with any of the provisions of these T&C.
While installing Apps, you may choose within several options (tariffs) of the Services.If you cannot select a specific tariff, it's automatically selected based on your Shopify Store plan.
While installing the App, you are informed about applicable Fee for our Services which may vary due to the chosen tariff. We may offer you a free trial that gives you access to our Services for a specified period without payment or at a reduced payment (a “Trial”). We are authorised to determine your Trial, and/or withdraw or modify a Trial at any time without prior notice and with no liability.
We reserve the right to modify, terminate or otherwise amend our offered Services, Apps and any promotional offerings at any time in accordance with these T&C.
3. Payments and billing
The Fee will be paid via a payment gate available on the Shopify App Store in advance on a monthly basis. The Fee will be paid to the Shopify account.
Your payment of the Fee will automatically renew at the end of the Subscription Period, unless you cancel your subscription (terminate the Agreement) before the end of the Subscription Period. The cancellation will take effect the day after the last day of the current Subscription Period. We do not provide refunds or credits for any partial Subscription Periods.
The Shopify shall issue an invoice for each payment after the Fee has been paid. This invoice will meet the requirements of tax and accounting regulations. You may find the invoice in your Shopify account according to terms available at https://help.shopify.com/en/manual/your-account/manage-billing/your-invoice/invoice-overview.
In case the Fee is not successfully paid, we may suspend your access to the App and our Services until the payment is successfully processed.
We may change the Fee and if so, we will communicate any Fee changes to you in advance and, if applicable, how to accept those changes. Fee changes will take effect at the start of the next subscription period following the date of the Fee change. You accept the new Fee by continuing to use the Services after the price change takes effect. If you do not agree with the Fee change, you have the right to reject the change by unsubscribing from the Services prior to the price change going into effect.
4. Term and Termination of the Agreement
The Agreement is concluded for an indefinite period.
The Agreement may be terminated by termination by us or you.
We both may terminate the Agreement via e-mail or you may cancel the subscription of our Services by uninstalling the App, the termination will be effective as of the end of the Subscription Period.
We may terminate the Agreement with immediate effect if:
- you breach the Agreement and/or the T&C;
- you fail to pay the Fee on the due date.
5. Warranty Complaints
You acknowledge that the App can be inaccessible for a limited period of time due to the necessary hardware and/or software maintenance of the server or in cases of temporary server shutdown.
If the App or our Services we provide you have a defect, you are entitled to claim warranty via the Intercom Chat or e-mail. The warranty claim must include details about you as the Customer, us as the Company, provided Services and App, nature of the defect and request for the warranty complaint settlement. We will respond your warranty complaint within 30 days.
You are not entitled to be reimbursed for any costs related to the warranty complaint.
The reason for the warranty complaint cannot be the fact that the App or related Services do not correspond to your subjective expectations or if the defect comes from the incorrect use of the App.
6. Licence and Intellectual Property Rights
Intellectual property rights associated with the App and its contents are the sole property of the Company or its affiliates. We reserve all rights to our intellectual property rights which are contained in, published at and/or provided through App. We are the exclusive and unlimited holder of all economic and, to the maximum extent possible and permitted by respective laws, moral rights to the Apps. The App is protected by copyright.
The App is not transferred, assigned, sold or leased to you, and we retain ownership of all copies of the App and applications even after installation on your Shopify Store.
You may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the intellectual rights to the App in any way without our prior written permission.
All our trademarks, business names, logos, domain names, and any other features of the Company brand are our sole property as the Company. We do not grant you any rights to use any of its brands whether for commercial or non-commercial use.
We grant you limited, non-exclusive, revocable right to use the App in the extent of access to using the Services (the “Licence”). The Licence shall remain in effect until the termination of the Agreement, subscription and provision of the Services.
7. Limitation of the Liability, Indemnification
We are not liable to any user of App or the Services for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
- use of, or inability to use the App; or
- use of or reliance on any content displayed on the App;
- for malfunction and non-accessibility of the App caused by the vis mayor, e.g. third-party acting, hacker-attacks, software or hardware failure;
- for any claims from your clients and/or customers.
Please note that in particular, we will not be liable for:
- loss of profits, sales, business, or revenue;
- business interruption;
- loss of anticipated savings;
- loss of business opportunity, goodwill or reputation; or
- any indirect or consequential loss or damage.
We are not liable for any loss or damage arising from any agreement entered into between you and any third party in connection with provision of the Services.
We are not liable for any loss or damage caused by a hacking, virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any content on it, or on any website linked to it.
We are not liable for any content of any other website visitor may gain access from our App (e.g. the banner advertisement). If you follow any link off the App, you proceed at your own risk.
You agree to indemnify us from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your violation of these T&C.
8. Final Provisions
These T&C are written in English and governed by the law of the Czech Republic. These T&C take precedence over the provisions of the legislation from which they may depart from. Any disputes between us are meant to be resolved by the Czech courts based on the registered seat of the Company.
We are entitled to modify these T&C. We publish the amendment to these T&C on our website and we inform you via Intercom Chat as well. If you do not agree with the new version of the T&C, you are entitled to terminate the Agreement by uninstalling the App. If you do not exercise this right, it is deemed you agreed with the new published version of the T&C.
If any provision of these T&C is or becomes invalid or ineffective, it will be replaced by a provision that comes as close as possible to the meaning of the invalid provision. The invalidity or ineffectiveness of one provision will not affect the validity of the remaining provisions.
In Prague on June 1, 2021.