1. Introduction and Basic Definitions
We are Digismoothie s.r.o., a company having its registered office at Pobřežní 667/78, 186 00 Prague, Czech Republic, ID No.: 037 18 751, registered in the Commercial Register maintained by the Municipal Court in Prague under Insert C 336746 and duly incorporated under the laws of the Czech Republic (“Company” or “we”), who develops the software, applications and plugins for the Shopify Stores (the “App(s)”) as well as providing licenses to them via the Shopify App Store and any related services thereto.
These basic definitions will be used throughout these T&C in order to facilitate comprehension and the reading of these T&C:
- Agreement means the agreement entered into by and between us under which we undertake to provide you with the license to the Apps and related Services
- Client or you means you who enters into the Agreement with us
- Intercom Chat means our primary communication channel integrated into the Apps provided by Intercom service (https://www.intercom.com/)
- Fee means a fee paid for the Services
- Services means our services we undertake to provide you with under the Agreement, especially the services vis-à-vis the provision of the user license for the Apps and user support
- Shopify Company means Shopify Inc., whose registered office is at 150 Elgin Street 8th Floor Ottawa, ON K2P 1L4 Canada, and its related companies (subsidiary companies, etc.)
- Shopify App Store means the Shopify marketplace (app store) which allows users to install and operate their Shopify Stores available at: https://apps.shopify.com/,
- Shopify Store means the online store (e-shop) maintained by Shopify on the Shopify.com platform for Clients
- Subscription Period means anywhere from a 30 to a 365-day billing period
- T&C means these Terms and Conditions
By installing the App, you are thereby entering into the Agreement on the provision of Services with us, and further accept these T&C by installing the App and using the Services.
These T&C govern the mutual rights and obligations between us arising out of using the Apps and the provision of Services, while these T&C comprise an integral part of the Agreement.
You may use the Intercom Chat or following contact details of the Company for communicating with us:
- Mailing address: Pobřežní 667/78, 186 00 Prague, 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 becoming a Shopify user in terms of operating the Shopify Store, you can find more information here. Provided you grant us access to your Shopify Store, we thereby agree that we will be installing the Apps on your behalf.
The Shopify Company provides us with all your details and information we need to enter into an Agreement with you. We have the right to presume that all information and data that have been provided by you to the Shopify Company are accurate, complete and up-to-date.
We reserve the right to disable and prevent anyone from installing the App at any time and at 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 several options (tariffs) in terms of the Services. If you are unable to select a specific tariff, then one will automatically be selected for you based on your Shopify Store plan.
While installing the App, you will be informed about the applicable Fee for our Services which may vary in accordance with the chosen tariff. We may offer you a free trial that gives you access to our Services for a specified period either free-of-charge or at a reduced rate (“Trial”). Further, we are authorized to determine your Trial, and/or withdraw or modify a Trial at any time without prior notice and with no liability incurred.
We reserve the right to modify, terminate or otherwise amend our Services offered, Apps and any promotional offerings at any time in accordance with these T&C.
3. Payments and billing
The Fee will be paid using a payment gateway that is made available through the Shopify App Store in advance and 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 become effective the day following the last day of the current Subscription Period. Please note we do not provide refunds or credits for any partially used Subscription Periods.
Shopify shall issue an invoice for each payment after the Fee has been paid. This invoice will meet the requirements of any applicable tax and accounting regulations. You may find the invoice in your Shopify account according to the 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 has been 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 become effective at the start of the next subscription period following the date of the Fee change. You agree to acceptance of the new Fee by continuing to use the Services after the price change has become effective. 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 way of termination that is effectuated either by us or you.
Either of us may terminate the Agreement via e-mail or you may cancel the subscription to our Services by uninstalling the App, while the termination will become effective as of the end of the Subscription Period.
We may terminate the Agreement effective immediately if:
- you breach the Agreement and/or the T&C; or
- you fail to pay the Fee by the due date.
5. Warranty Claims
You hereby acknowledge that the App may become inaccessible for a limited period of time due to necessary hardware and/or software maintenance of the server or in cases where the server is temporarily shut down.
If the App or our Services we provide you with are defective, you are entitled to make a warranty claim via the Intercom Chat or e-mail. The warranty claim must include details about you as the Customer, us as the Company, the particular Services and App provided, the nature of the defect, as well as a request for the warranty claim settlement. We endeavor to respond to your warranty claim within 30 days.
You are not entitled to be reimbursed for any costs incurred in connection with a warranty claim.
The grounds for the warranty claim cannot be predicated on the fact that the App or related Services do not correspond to your subjective expectations or if the defect arose from the App being used incorrectly or improperly.
6. License 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 on and/or provided through the App. We are the exclusive and unlimited holder of all economic and, to the maximum extent possible and as permitted by the respective laws, moral rights to the Apps. The App is protected by copyright.
The App is neither transferred, assigned, sold nor leased to you, while we retain ownership of all copies of the App and applications even after they have been installed 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 whatsoever without our prior written permission.
All our trademarks, business names, logos, domain names, and any other features of the Company brand comprise our sole property as the Company. We do not grant you any rights to use any of its brands whether it be for commercial or non-commercial use.
We grant you a limited, non-exclusive, revocable right to use the App to the extent of access to using the Services (“License”), while the License shall remain in force and effect until termination of the Agreement, subscription and the provision of Services.
7. Limitation of Liability; Indemnification
We shall not be held liable towards any user of the App or Services for any loss or damage, whether in contract, tort (incl. negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
- the use of, or inability to use the App;
- the use of or reliance on any content displayed on the App;
- the malfunction and non-accessibility of the App caused by force majeure, e.g., actions of a third party, hacker attacks, software or hardware failure; or
- any claims asserted by your clients and/or customers.
Please note that, in particular, we will not be held liable for any of the following:
- loss of profits, sales, business, or revenues;
- business interruptions;
- loss of anticipated savings;
- loss of business opportunities, goodwill or reputation; or
- any indirect or consequential losses or damages.
We shall not be held liable for any loss or damage arising from any agreement entered into by you and any third party in connection with the provision of Services.
We shall not be held liable for any loss or damage caused by any attacks in the form of hacking, viruses, a distributed denial-of-service, or any other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material in connection with using our site or as a result of your downloading any content on it, or on any website linked thereto.
We shall not be held liable for any content of any other website that a visitor may gain access to from our App (e.g., banner advertisements, etc.). If you click on any link that would take you away from the App, then you proceed entirely at your own risk.
You agree to indemnify and hold us harmless from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, either due to or arising out of you having breached these T&C.
8. Final Provisions
These T&C are written in English and governed by the laws of the Czech Republic. These T&C shall prevail over the provisions of the legislation from which they may depart from. Any disputes that arise between us shall be heard and resolved by the Czech courts in the jurisdiction based on the registered office of the Company.
We are entitled to modify these T&C. Any amendments made to these T&C will be published on our website and you will be informed thereof via the 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; however, should you not exercise this right, it shall be construed that you have agreed with the newly 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.