Terms of service
(a) App means the software application or other interface that is developed or owned by Union Works; Merchant Content means all content, materials and other works uploaded to the App, including all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation and including for the avoidance of doubt Customer Data; Merchant Website: Merchant’s webservice or platform; Customer means a customer of the Merchant; Customer Data means information, including personal data relating to a Customer that is uploaded to the App; Data Protection Legislation means the General Data Protection Regulation (Regulation (EU) 2016/679); IP Rights means any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design rights, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world; Shopify means Shopify Inc of 150 Elgin Street, 8th Floor, Ottawa Ontario K2P 1L4; Terms means these terms and conditions.
(b) These Terms contain the entire agreement between the parties in connection with the App. All other terms and conditions are excluded.
(c) A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
(d) Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
(e) Any phrase introduced by the words including and includes shall be construed as illustrative and shall not limit the generality of the related general words.
(a) Subject to continuing payment of the fee due, Union Works grants to the Merchant a non-transferable, non-exclusive right and licence to host the App and to maintain and support the App in connection with Merchant’s account with Shopify and the Merchant Website.
(b) In exercising its rights under Condition 2(a) the Merchant shall not, and shall not permit or assist any third party to:
(i) modify, translate, adapt or copy the whole or any part of the App, nor arrange or create derivative works based on the App;
(ii) reverse engineer, decompile, or disassemble or otherwise attempt to derive or determine the source code for the App (except to the extent applicable laws specifically prohibit such restriction);
(iii) make for any purpose including error correction, any modifications, adaptions, additions or enhancements to the App;
(iv) combine, match or merge the whole or any part of the App with or incorporate the App into any third party code;
(v) sell, purport to assign or license access to the App for a fee;
(vi) access and use the App in order to develop a competitive mobile software application or other platform;
(vii) remove or alter any copyright trademark, logo, copyright or other proprietary notices, legends, symbols or labels or other proprietary notice on any of the App.
(a) The Merchant warrants, represents and undertakes that the Merchant Content and all content posted on the Merchant Website shall comply with Shopify's acceptable use policy from time to time.
(b) Without prejudice to Condition 3(a), the Merchant warrants, represents and undertakes to Union Works that nothing in the Merchant Content:
(i) is in breach of any law, statute, or regulation;
(ii) is defamatory, libellous, unlawfully threatening or harassing;
(iii) is obscene, pornographic or indecent; and/or
(iv) contains any viruses or other computer programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any content, including personal information.
Fees and Payments
(a) All fees are to be paid to Shopify in US dollars on a monthly basis. If an instalment of the fee is not received in full and clear funds by the due date, the Merchant’s right to use the App shall immediately terminate.
(a) The Merchant hereby grants to Union Works a non-exclusive right and licence to use, the Merchant Content in order to exercise its obligations under these Terms. Union Works shall also be entitled to make such copies of the Merchant Content as may be necessary to perform its obligations under these Terms and to sub-license its right to its sub-contractors.
(b) If the Merchant becomes aware of any claim or potential claim against it relating to the fact that use of the App infringes the IP Rights of any other person, the Merchant should notify Union Works within 10 days so that Union Works can take such action as it considers appropriate to deal with this. This may include obtaining a right for the Merchant to continue to use the App or modifying the App so that it becomes non-infringing. Alternatively, Union Works may terminate these Terms and refund the fee paid in advance for any time when the Merchant could not use the App under this Condition 6(b). Nothing in this Condition 5(b) shall apply to any infringement that relates to Merchant Content or Shopify software.
(a) The Merchant warrants and represents that to the extent the Customer Data contains any personal data as defined in the Data Protection Legislation the personal data shall have been collected and processed in accordance with the provisions of the Data Protection Legislation.
(b) Union Works is the processor of the Customer Data and the Merchant is the controller of the Customer Data.
(c) Union Works shall:
(i) only process the Customer Data to provide the App and otherwise on the Merchant’s written instructions, which may be specific instructions or standing instructions of general application;
(ii) take appropriate technical and organisational measures against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of or damage to Customer Data;
(iii) at the Merchant’s request and choice either deliver up or delete the Customer Data from its systems on termination of these Terms;(iv) ensure that individuals processing the Customer Data for Union Works are subject to a duty of confidence in relation to the Customer Data;(v) only engage sub-processors with the prior consent of the Merchant and under a written contract;(vi) assist the Merchant in providing subject access and allowing data subjects to exercise their rights under applicable Data Protection Legislation;(vii) assist the Merchant in meeting its legal obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;(viii) submit to audits and inspections by the Merchant to ensure that Union Works is complying with its obligations under this Condition 6 subject to reasonable notice and during Union Work’s working hours; and(ix) notify the Merchant if Union Works is requested to take any action in breach of any applicable Data Protection Legislation.
Warrenties and Indemnities
(a) Except as set out in these Terms and to the extent permitted by law, no representations, warranties or conditions are given or assumed by Union Works and the Merchant agrees that it has not relied upon any other representations, warranties or conditions to enter into these Terms.
(b) The Merchant warrants that:
(i) use by Union Works of the Merchant Content shall not infringe any third party IP Rights, or breach any applicable laws or regulations; and(ii) the Merchant Website shall be hosted by Shopify.
(c) The Merchant shall indemnify Union Works, its employees, agents, representatives and associated from and against all costs, claims, demands, liabilities, expenses, damages or losses arising out of or in connection with any breach of the warranties set out above in this Condition 7.
(a) Subject to Condition 8(c), Union Works shall not be liable to the Merchant for:
(i) loss of profits;
(ii) loss of business;
(iii) loss or corruption of data or information;
(iv) business interruption;
(v) loss of or wasted staff or management time;
(vi) any kind of special, indirect, consequential loss or pure economic loss; and/or
(vii) error, omission, failure to operate, loss or damage arising as a result of any error, omission or inaccuracy in the Merchant Content, and/or any Shopify content, APIs or other materials provided by Shopify.The parties agree that the provisions of this Condition 10(a) are severable.
(b) Subject to Condition 8(c), Union Works’ total liability to the Merchant for all claims or series of claims relating under these Terms whether in contract, negligence or otherwise for any damages, losses or expenses shall be limited to 100% of the fee paid in the 12 months preceding the date the claim arose.
(c) Nothing in these Terms limits or excludes the liability of Union Works for:
(i) breach of its obligations under section 2 of the Supply of Goods and Services Act 1982;
(ii) death or personal injury resulting from negligence;
(iii) fraud or fraudulent misrepresentation; and/or
(iv) any other liability that cannot lawfully be excluded under English law.
(d) The parties agree that as between Union Works and the Merchant:
(i) Union Works, and not Shopify, is responsible for the App;
(ii) Shopify is not liable for any fault in the App or any harm that may result from its installation or use;
(iii) except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the App; and
(iv) Union Works is solely responsible for any liability which may arise from: (A) the development, use, marketing or distribution of or access to the App, including support of the App; and (B) Union Works’ access, use, distribution or storage of Merchant Data.
Term and Termination
(a) These Terms shall come into effect on receipt of the first payment of the fee due. Either party may terminate these Terms on one month’s written notice to the other.
(b) These Terms shall terminate automatically if either party’s agreement or account with Shopify terminates or Union Works access to the Shopify API terminates.
(c) Without prejudice to any other rights or remedies which may be available to it, Union Works shall be entitled to give notice in writing to the Merchant terminating these Terms with immediate effect if:
(i) the Merchant breaches any provision of these Terms.
(ii) in Union Works’ reasonable opinion the use of the App by the Merchant may damage or disrupt the proper functioning of the infrastructure or systems used by Union Works, or its subcontractors, to provide services to other companies;
(iii) Union Works receives any claim from a third party in relation to the Merchant Content; and/or
(iv) Union Works reasonably believes that the Merchant Content and/or any content posted on to the Merchant Website infringes Shopify's acceptable use policy or otherwise is in breach of any of these Terms.
(d) On expiry or earlier termination of these Terms for any reason:
(i) all sums owed shall immediately become due and payable; and
(ii) Union Works shall be entitled to delete all electronic copies and return to the Merchant all hard copies of any Merchant Content that may be in the possession or control of Union Works, without retaining any copies except for back-up copies stored on its system as a matter of its standard business practice.
(e) Expiry or earlier termination of these Terms shall not affect the accrued rights of the parties. Notwithstanding expiry or earlier termination, the following Conditions shall remain in force: Conditions 1 (Definitions and Interpretation), 7 (Warranties and Indemnity), 8 (Liability), 9(e) (Term and Termination), 10 (General).
(a) Shopify shall be entitled to enforce these Terms. Otherwise, nothing in these Terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, shall confer or purport to confer on any other third party any benefit or the right to enforce any term of these Terms.
(b) The Merchant shall not assign, transfer, charge, sub-contract or deal in any other manner with these Terms or its rights or obligations under these Terms. Union Works shall be entitled to assign these Terms and any of its rights and obligations under these Terms.
(c) The failure or delay of a party to exercise or enforce any right under these Terms shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
(d) If any provision of these Terms is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties
(e) Any notice given under these Terms shall be in writing and shall be served by delivering the notice by email.
(f) These Terms shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the English courts.