Discount Ninja - Terms and Conditions (Merchant Agreement)
THE LEGAL AGREEMENT SET OUT BELOW IS BETWEEN YOU AND BART COPPENS, A COMPANY INCORPORATED UNDER THE BELGIAN LAW WITH ITS CORPORATE SEAT IN PACIFICATIELAAN 59, 9000 GENT, BELGIUM, REGISTERED WITH THE TRADE REGISTER UNDER VAT NO. BE0652976779 (“LIMONI APPS”, “LICENSOR”, “WE”) AND GOVERNS YOUR USE OF THE DISCOUNT NINJA APPLICATION (“APP”) THAT YOU, AS A MERCHANT (“MERCHANT”, “YOU”) INSTALL AND/OR USE IN CONNECTION WITH YOUR SHOPIFY-SUPPORTED STORE.
YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE A NON-ELECTRONIC SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
1. ACCESS AND USE OF THE APP.
1.1. The access and use of the App shall be made in connection with, and solely for the purpose of, providing the ability to manage promotions (the "Service") for your store. You may not use the App for any illegal or unauthorized purpose nor may you, in the use of the App, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Belgium. You will comply with all applicable laws, rules and regulations in your use of the App.
1.2. The App may be downloaded and installed form the Shopify App Store exclusively.
1.3. You are responsible for installing and uninstalling the App and for choosing the Membership plan.
1.4. If you are an individual operating a Shopify-Supported Store, you must be 18 years old or at least the age of majority in the jurisdiction where you reside.
1.5. If you are signing up for this Agreement on behalf of your employer, your employer shall be the End User Licensee. If you are signing up for this Agreement on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to the terms and conditions contained in this Agreement.
1.6. We may, but have no obligation to, suspend or terminate the Agreement if we determine in our sole discretion that your usage violates the terms of the Agreement. Furthermore we reserve the right to refuse Service to anyone for any reason at any time.
2. END USER LICENSE AGREEMENT [EULA]
2.1. The App made available through the Shopify App Store is licensed, not sold to you.
2.2. Limoni Apps, the Licensor, hereby grants you a limited, worldwide, non-exclusive, revocable, non-sub licensable, nontransferable license to use the App solely in association with your Shopify-Supported Store. You shall not transfer or sublicense any rights granted by this EULA, except as necessary for the use of the App with your Shopify-Supported Store and in accordance with the present Agreement.
2.3. You acknowledge that the license that you obtain through the App Store is a binding agreement between you and Limoni Apps.
2.4. This license does not allow you to use the App with your Shopify-Supported Store that you do not own, control or are not authorized to act on behalf of. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the App. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App). You may not attempt to, nor assist, authorize or encourage others to circumvent, disable, or defeat any of the security features or components, such as digital rights management software or encryption that protects or otherwise restricts access to App. Any attempt to do so is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and third party damages.
2.5. Use of the App requires compatible devices, Internet access; may require periodic updates; and may be affected by the performance of these factors. High-speed internet is strongly recommended.
2.6. You agree and acknowledge you are responsible to take and implement adequate technical measure to protect the source code of the App.
3. PRIVACY AND CONSENT TO USE OF DATA
3.2. Licensor requires, and you hereby represent and warrant that (i) Licensor is entitled to use any Customer Data as needed to provide the App services (i) any data you submit to the Licensor during or in connection with your use of the App, has not been collected, stored, or transferred in violation of any law or contractual obligation applicable to you. You shall cause each customer to consent to the collection, use, storage and transmission of data to third parties prior to the collection of such data in a manner consistent with applicable law.
4. PAYMENTS, TAXES AND REFUND POLICY
4.1. The Licensor has set a licensing fee in consideration for licensing the App to you for your use with your Shopify Account (“License Fee”). You hereby agree to pay the License Fee according to the Membership plan you choose. You hereby agree and acknowledge that Shopify collects the License Fee on behalf of the Licensor, and may retain a portion of the License Fee in the form of a revenue share.
4.2. The Licensor may change the License Fee at any time. The Licensor does not provide price protection or refunds in the event of a price reduction or promotional offering.
4.3. When you install the App, you will initially be charged at the rate applicable at the time of your agreement to install. If the price for the App is later changed, Licensor will notify you and give you the option to accept or decline the price increase. The increase will apply to the next payment due from you after the notice, provided that you have been given at least 30 days’ prior notice before the charge is made. If you are given less than 30 days’ prior notice, the price increase will not apply until the payment after the next payment is due. If you do not wish to pay the increased price for the App, you may cancel the subscription in the manner described on Shopify’s app information page, available at: https://help.shopify.com/manual/apps/working-with-apps#uninstall-an-app, and you will not be charged further amounts for the subscription, provided you have notified us no later than 30 days after the change has been made.
4.4. Present EULA is final and non-refundable, subject to the limited conditions set out above.
5. REPRESENTATIONS AND WARRANTIES OF THE MERCHANT
5.1. Merchant acknowledges and agrees that he will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Merchant.
5.2. Merchant acknowledge and agrees that Limoni Apps is solely responsible for the App and that Shopify is not liable for any fault in the App or any harm that may result from the installation or use of the App.
5.3. Merchant acknowledges and agrees that Limoni Apps is solely responsible for any liabilities which may arise from: (a) the development, use, marketing or distribution of or access to the App including technical support of the App; and (b) Limoni Apps’ access, use, distribution or storage of Merchant Data. Limoni Apps’ liability in such cases is limited to the damages set in this Agreement.
5.4. The person signing up for the this Agreement will be also the contracting party for the purposes of this Agreement and will be the person who is authorized to install and use any corresponding updated version of the App we may provide in connection with the App. Merchant is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.
6. DISCLAIMER OF WARRANTIES; LIMITATION Of LIABILITY
6.1. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
6.2. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR INCOME, LOSS OR CORRUPTION OF DATA, BUSINESS LOSS OR INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP BY YOU OR BY YOUR CUSTOMER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty US dollars (USD $50.00). The foregoing limitations will apply even if the above stated remedy fails its essential purpose.
6.3. The relationship between a Merchant and Limoni Apps is strictly between the Merchant and Limoni Apps, and Shopify is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Shopify be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever that result from or relate to Limoni Apps' relationship with any Merchant. These limitations shall apply even if Shopify has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
6.4. Limoni Apps shall not be liable in case Shopify terminates the Partner Agreement with Limoni Apps, or in case Shopify suspends Limoni Apps' access to the Shopify API. In such cases, Limoni Apps shall make reasonable effort to give notice to Merchant prior to termination or suspension coming into effect.
7. WAIVER AND INDEMNITY
7.1. BY USING THE APP, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD LIMONI APPS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE APP, OR ANY ACTION TAKEN BY LIMONI APPS AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM LIMONI APPS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE APP, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF LIMONI APPS' CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
8. THIRD-PARTY MATERIALS
8.1. Certain content and services available via the App may include materials from third parties. The App may provide links to third-party websites as a convenience to you. You agree that Licensor is not responsible for examining or evaluating the content or accuracy of, and Licensor does not warrant and will not have any liability or responsibility for, any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Licensor is not in any way responsible for any such use by you.
9. INTELLECTUAL PROPERTY
9.1. You agree that the App contains proprietary information and material that is owned by Limoni Apps and/or each party’s licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the App in compliance with this Agreement and any third-party license agreement, as applicable. No portion of the App may be reproduced in any form or by any means, except as expressly permitted in this Agreement.
10. TERMINATION; SURVIVAL
10.1. If you fail, or Limoni Apps suspects that you have failed, to comply with any of the provisions of this Agreement, Limoni Apps, at its sole discretion, without notice to you may terminate this Agreement, and you will remain liable for all amounts due as they relate to one or all of your App under your Shopify Account up to and including the date of termination.
10.2. The Agreement granted is effective until terminated by you or Licensor. Your rights under the Agreement will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this Agreement or your Shopify Account is terminated by Shopify. Upon termination of the Agreement, you shall cease all use of the App and destroy all copies, full or partial, of the App. If you are dissatisfied with any aspect of an App at any time, your sole and exclusive remedy is to cease using it. Notwithstanding the foregoing, the following sections shall survive termination of the Agreement and this Agreement: Privacy and Consent to Use of Data, Disclaimer of Warranties; Liability Limitation, Waiver and Indemnity, Intellectual Property; Use of Content and Governing Law.
10.3. Notwithstanding any other provision of this Agreement, Limoni Apps reserves the right to change, suspend, remove, or disable access to the App (or any part or content thereof), any Limoni Apps Application Programming nterfaces (“APIs”), or any content or other materials comprising a part of any App at any time without notice. This may affect your App and/or may require you or Limoni Apps to make changes to the App. In no event will Limoni Apps be liable for making changes to a Shopify store. Shopify may also impose limits on the use or access to certain features or portions of the App, in any case and without notice or liability.
11. USE OF CONTENT
11.1. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, alter, modify, adapt, create derivative works or otherwise tamper with all or any part of the technology related to the App, or to attempt or assist another person to do so. You agree not to access the App by any means other than through software that is provided by Limoni Apps for accessing the App. You shall not access or attempt to access a Shopify Account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the App. Violations of system or network security may result in civil or criminal liability.
12. FORCE MAJEURE
12.1. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.
12.2. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
13.1. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any proprietary rights of Limoni Apps.
13.2. Limoni Apps reserves the right to provide the App and Services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Limoni Apps employees and contractors may also be Shopify customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
14. NO WAIVER
14.1. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of their right to enforce the provision of this Agreement in the future.
15. GOVERNING LAW
15.1. The laws of Belgium applicable therein, excluding its conflicts of law rules, govern this license and your use of the App. Your use of the App may also be subject to other local, provincial, territorial, federal or international laws.
16. CHANGES TO THIS AGREEMENT
16.1. Limoni Apps may occasionally change the terms and conditions in this Agreement. If a material change is made, a notice will be posted on Limoni Apps' Website, or within the App, and where appropriate, communicated by other means. If you continue to use App after these changes are posted, you agree to the revised Agreement.
Last updated: July 24, 2018