Published Date: August 17th, 2020
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Your Licence to install and use the App will begin with a free trial for the specified amount of days. The trial is free and designed to allow you to evaluate the App and make sure it is right for you. The free trial
begins on the date that you approve payment, accept these Terms and click the “Start Trial” button and ends at the end of the specified period.
If you do not cancel the free trial, on your first Shopify Payment Date after the end of the free trial you will be billed the Fee by Shopify as set out on the Shopify Marketplace for your chosen Plan at the time that you
signed up. After your free trial, you must pay the Fee to Shopify, in advance, every month on your Shopify Payment Date.
To cancel the free trial or your paid Licence you may uninstall the App.
- Egnition delivers applications which provide automation for your Shopify store.
- Egnition Pty Ltd ABN 17 626 605 712 (we, us or our) own or licence the software application, including all instructions in hard copy or electronic form and any automatic update, modification or release of any part of that software which is accessible by installing the application (App) from the Shopify marketplace at https://apps.shopify.com/ (Shopify Marketplace) on your Shopify store (Shopify Store).
- These terms and conditions (Terms) set out the terms upon which we agree to grant you a right to use the App and provide support as set out in these Terms.
- By installing the App, you confirm your acceptance of these Terms.
- These Terms will commence on the date you install the App and will continue on a month to month basis until terminated in accordance with clause 11 (Licence Period).
- By accepting these Terms and installing the App, you:
- warrant to us that you have the legal right and capacity to enter into a legally binding agreement and you are over 18 years of age;
- warrant to us that you have the authority to act on behalf of any person or entity for whom you are installing and using the App and you are deemed to have agreed to these Terms on behalf of any entity for whom you install and use the App;
- warrant to us that you have all hardware, software and services which are necessary to access and use the App;
- agree that you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the App to be provided in accordance with these Terms, at your cost, and as reasonably required by us, for providing us with the necessary consents, licences, authorities and permissions (including access by the App to your Shopify Store via an application programming interface); and
- agree to use the App in accordance with these Terms and all applicable Laws.
- We offer a variety of Plan options with various features and pricing options, as set out on the Shopify Marketplace where the App is displayed (Plan).
- You will be delegated a Plan based on relevant details for your Shopify Store (i.e the number of products in your Shopify Store, the number of users or the features you want access to) and after accepting these Terms, you can install the App and configure the App for your Shopify Store.
- In consideration for payment of the fees to Shopify as set out on the Shopify Marketplace where the App is displayed for your chosen Plan (Fees), we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms) and revocable licence to install and use one instance of the App for the Licence Period (Licence).
- You are responsible for all activity on the App linked to your Shopify Store, including activity by your authorised users, such as your Personnel (Authorised Users) and for ensuring that any such activities comply with these Terms.
4 Licence restrictions
- You must not (and must ensure your Authorised Users do not) access or use the App except as permitted by the Licence and you must not and must not permit any other person to:
- use the App in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property rights and privacy rights;
- use the App to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
- use the App to circumvent user authentication or security of any of your networks, accounts or those of third parties.
5 Support Services
- During the Licence Period, we will provide you with technical support services via email, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault). Technical support services are provided during Business Hours on Business Days.
6 Free Trial
- The terms in the box at the top of these Terms apply to any free trial we offer to you.
- If you are found to be misusing the App during the free trial, we have the right to make the App non-operational, or ask Shopify to cancel your Plan.
- You must pay Shopify the Fee for your Licence (via your current Shopify payment method), monthly on the calendar day that is your current Shopify Store payment date (Shopify Payment Date), without set off or delay.
- We appoint Shopify to receive payment of the Fee on our behalf. Payment of the Fee by you to Shopify is to be considered the same as payment of the Fee by you to us directly.
- The Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Licence Period (or part thereof).
- All Fees are stated in USD and exclude taxes (including GST) where applicable. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
- The Fee is subject to change upon 30 days’ notice from us to you and will apply to the next Shopify Payment Date which falls after the expiration of the 30 day notice period. Such notice may be provided at any time via email or via an in-App notification. If you agree to the Fee change, you must accept the new Plan within the App. If you do not agree to the Fee change, you may terminate these Terms in accordance with clause 11.
- If under these Terms, any amount other than the Fee is payable by you to us, including under an indemnity, we may invoice you directly for such amount and you agree to pay the amount in the invoice without set off or delay.
8 Upgrades and downgrades
- The Fee for your Licence is based on your delegated Plan. Your Plan is based on a specified limit (i.e the number of products in your Shopify Store, the number of users or the features you want access to). If at any time you exceed the limit in your Plan, we will notify you via an in-App notification to upgrade your Plan and you can upgrade using the App’s upgrade functionality. If you do not upgrade your Plan, you will continue to be billed the current Fee by Shopify on your next Shopify Payment Date but the App’s functionality may be compromised. Where you upgrade your Plan, your new Plan will begin immediately and the new Fee will be payable to Shopify on your next Shopify Payment Date. We do not accept any Liability for any errors in, or suspension of, the App’s functionality where you fail to upgrade your Plan in accordance with an upgrade notification.
- If at any time your Shopify Store is eligible to downgrade your Plan, you may submit a support request to us via email. Where you downgrade your Plan, your new Plan will begin on your next Shopify Payment Date and the new Fee will be payable to Shopify on your next Shopify Payment Date.
9 Our Intellectual Property
- All Intellectual Property in the App and Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with these Terms, the App and any machine learning algorithms output from the App) is and will remain owned or licensed exclusively by us or our third party service providers.
- You must not, without our prior written consent:
- copy or use, resell, assign or transfer in whole or in part, any of our Intellectual Property;
- reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
- reverse assemble, reverse engineer, reverse compile or enhance the App
- breach any Intellectual Property Rights connected with the App, including altering or modifying any of our Intellectual Property or of any third party;
- cause any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property;
- “frame”, “mirror” or serve any part of the App on any web server or other computer server over the Internet or any other network; or
- alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the App.
10 Your Data
- As between you and us:
- all Data is and remains your property, and
- you retain any and all rights, title and interest in and to the Data, including all copies, modifications, extensions and derivative works thereof.
- You grant us a limited licence to access and transmit the Data during the Licence Period solely to:
- provide the App to you;
- diagnose problems with the App;
- meet our legal obligations; and
- perform our obligations under these Terms.
- You must, at all times, ensure the integrity of the Data and that your use of the Data is compliant with all Laws (including privacy Laws).
- You represent and warrant that:
- you have obtained all necessary rights, releases and permissions to grant the rights granted to us in these Terms; and
- the Data and its access, transmission and use by us, as authorised by you under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
- We assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.
- This clause will survive termination or expiry of these Terms.
- You may terminate these Terms at any time by uninstalling the App. No refunds will be given upon termination in accordance with this clause.
- To the extent permitted by law, either Party may terminate these Terms immediately, if the other Party:
- has breached a material term of these Terms which is not capable of remedy;
- has breached a term of these Terms and has failed to remedy such breach within 10 Business Days of receiving notice to do so, subject to any other express right of termination; or
- is unable to pay its debts as they fall due.
- On termination of these Terms:
- you will stop using the App;
- you will remove the App from your Shopify Store;
- you agree that, to the maximum extent permitted by law, any payments made are not refundable to you; and
- you must pay all amounts due and payable under these Terms, including under an indemnity, within 5 Business Days of termination.
12 Australian Consumer Law
- Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010(Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and
remedies relating to our provision of our App which cannot be excluded, restricted or modified (Statutory Rights).
- Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights. Any and all other warranties or conditions which are not guaranteed by your Statutory Rights are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
13 Third Parties
- You acknowledge and agree that:
- the provision of the App may be contingent on, or impacted by, third parties such as the Shopify Marketplace, Shopify’s other services, other customers’ use of our services, suppliers and other subcontractors (Third Party Inputs); and
- despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of these Terms or Laws, if such default or breach was caused or contributed to by any Third Party Inputs.
- You acknowledge that the App includes certain optional functionality that may interface or interoperate with third party software or services, including your Shopify Store via an application programming interface. To the extent that you choose to use such functionality, you are responsible for: (i) the purchase of, (ii) the ancillary requirements related to, and (iii) the licensing obligations related to the applicable third party software and services, including those related to your Shopify Store. It is your responsibility to ensure the requirements are met in order for you to benefit from our App and specific functionality made available to you.
- This clause will survive the termination or expiry of these Terms.
14 Limitations on Liability
- Despite anything to the contrary, to the maximum extent permitted by law:
- a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel);
- our maximum aggregate Liability arising from or in connection with these Terms (including the App) will be limited to, us resupplying the App to you or, in our sole discretion, to us repaying you the total amount of Fees paid by you to Shopify on our behalf in the 12 month period directly preceding the date on which such Liability arose; and
- we will not be liable for Consequential Loss.
15 Exclusions to Liability
- Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
- loss of, or damage to, any property or any injury to or loss to any person;
- the Data or Computing Environment;
- your or your Personnel’s or Authorised User’ acts or omissions;
- any use or application of the App by a person or entity other than you, or other than as reasonably contemplated by these Terms;
- any work, services, goods, materials or items which do not form part of the App (as expressed in these Terms), or which have not been provided by us;
- any Third Party Inputs;
- the App being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
- any event outside of our reasonable control, including any Force Majeure Event.
- You acknowledge and agree that:
- you are responsible for all users using the App, including your Personnel and any Authorised Users;
- you use the App and any associated programs and files at your own risk;
- we do not warrant that the App is error-free or will be uninterrupted;
- we do not warrant that the App will be compatible with any feature or program provided by Shopify or otherwise acquired from the Shopify Marketplace;
- the App may integrate with or rely on software or services of third party service providers. If the providers of third party software or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features;
- we do not guarantee that any file or program available for download and/or execution is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
- we are not responsible for the integrity or existence of any Data on the App, your Shopify Store, Computing Environment, network or any device controlled by you or your Authorised Users; and
- we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
- This clause will survive termination or expiry of these Terms.
- You will be liable for and agree to indemnify us from and against any and all Liabilities resulting directly or indirectly from:
- breach of any Law by you; and
- any third party claim, including by any Authorised User, in connection with your use of the App.
- This clause will survive termination or expiry of these Terms.
- The App is provided to you on a non-exclusive basis.
- We reserve the right at any time to change or remove features in any new versions of the App provided that, where there is any adverse material alteration to the functionality of the App we will provide you notice to you by email or an in-App notification and you may decide to terminate these Terms in accordance with clause 11.
- Confidentiality: Each Party will (and will ensure their Personnel) keep confidential, and not use or permit any unauthorised use of, any Confidential Information without the other Party’s prior written consent, except where the disclosure is required by law.
- Publicity: With your prior written consent, we may use advertising or publicly announce that you are a user of our App, including in website testimonials and in our marketing material.
- Force Majeure: We will not be liable for any failure or delay in performing our obligations due to a Force Majeure Event.
- Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
- Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of email.
- Variation: We may modify these Terms from time to time by notifying you by email or an in-App notification of any material amendments. If you do not agree to the modifications, may decide to terminate these Terms in accordance with clause 11.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
- Assignment: You may not assign, transfer or delegate your rights and obligations under these Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with prior notice to you.
- Governing law: These Terms are governed by the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts.
- This clause will survive termination or expiry of these Terms.
18 Definitions and Interpretation
- The following words will mean:
- Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales;
- Business Hours means 7am to 3pm Greenwich Mean Time on a Business Day;
- Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services, all hardware, software, networks and other IT systems used by you from time to time, including a network;
- Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods,operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential" but does not include any information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the App. Your Confidential Information includes the Data;
- Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnityor otherwise;
- Data means the information, documents and other data inputted by you or your Authorised Users into the App or accessed by the App, including via an application programming interface;
- Force Majeure Event means an event which is beyond a Party’s reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, pandemic, government shutdown, quarantine restriction, transportation embargo, and strike by employees of a third person;
- Intellectual Propert includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the App;
- Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
- Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
- Party means either party to these Terms;
- Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party, and in relation to you, includes your Authorised Users; and
- Shopify means the applicable Shopify contracting entity as set out in clause 4 of Shopify’s Terms of Service, located here: https://www.shopify.com/legal/terms, or as updated from time to time.
For any questions contact us:
Egnition Pty Ltd
Address: PO BOX 21, Caringbah, NSW, Australia, 1495