App Terms of Use

These terms of use (the “Agreement”) will, when you authorize the use of an App in your Shopify Store by clicking “Install App”, form a binding legal contract between Eightrack Media Inc. o/a Digital Hub, a company incorporated in Ontario, Canada (“Digital Hub”, “we”, “our”, or “us”) and the person or entity owning the Shopify Store in which the App is installed (the “Merchant”, “you”, or “your”). The term “party” or “parties” refers to both the Merchant and Digital Hub. This Agreement is effective as of the date you accept it.

This Agreement covers the general terms which apply to all of our Apps, including terms on privacy and data processing. By accepting this Agreement, you also agree to accept the terms of our “App Privacy Policy“, which identifies the data the Apps can access and process, as well as for what purposes. Please review this Agreement and our Privacy Policy carefully before accepting.

If you are the agent or employee of an entity or organization, you represent and warrant to us that you have the legal authority to accept this Agreement on behalf of the entity or organization, and that the entity or organization has the legal power and capacity to enter into this Agreement and perform its obligations under it.

You may not, without our prior written consent, access an App:

1. for production purposes;
2. in order to compete with us;
3. to monitor the availability, performance or functionality of the Apps or Support;
4. in any jurisdiction that does not give effect to all provisions of this Agreement; or,
5. for other benchmarking or competitive purposes.

Once accepted, this Agreement remains effective until terminated as provided for in Section [16].

We may revise this Agreement at any time by updating this posting and providing a notification to you by popup/email that this Agreement has been revised. The date that this Agreement was last updated will appear at the top of the Agreement. Continued use of an App after the date of the notice will signify your acceptance of the revised Agreement. You should visit this page periodically to review this Agreement.

In this Agreement:

• “App” means a Digital Hub Application offered through the Shopify platform;
• “PIPEDA” means Canada’s Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) and its regulations, as may be amended or replaced from time to time;
• “Customer” means a third party whose information is made available to an App as Merchant Data, and includes persons purchasing the goods or services of the Merchant, but excludes Users;
• “DP Law” means all laws and regulations that apply to the processing of Personal Information under this Agreement, including applicable international, federal, state, provincial, and local laws, rules, regulations, directives, and governmental requirements currently in effect, and as they become effective, relating in any way to privacy, data protection, or data security;
• “Data Controller” means the entity which, alone or jointly with others, determines the purposes and means to Process Personal Information;
• “Data Processor” means the entity that Processes Personal Information on behalf of the Data Controller, which may be a third-party service provider;
• “Data Security Measures” means technical and organizational measures that are intended to secure Personal Information to a level appropriate for the risk of the Processing, which include measures protecting Personal Information from misuse, accidental or unlawful loss, and unauthorized access, disclosure, alteration, or destruction;
• “Data Subject” means an identified or identifiable natural person to which Personal Information pertains;
• “Fee” means a one-time or recurring payment for using the App;
• “GDPR” means the General Data Protection Regulation (EU) 2016/679, as amended or replaced from time to time;
• “Merchant” means the person or entity owning the Shopify Store on whose behalf this Agreement has been accepted;
• “Merchant Data” means all data and information which is made available to an App (whether actively inserted by the Merchant, or which the Merchant permits the App to access). It includes Personal Information, Shopify Store information, Customer data, orders, and product information;
• “Personal Information” means personal information, as defined by PIPEDA;
• “Plan” means various options offered for the use and functionality of the App, on which the Fee is based;
• “Process, Processing, or Processed” means to perform any operation or set of operations on Personal Information or sets of Personal Information, such as collecting, recording, organizing, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, disseminating or otherwise making available, aligning or combining, restricting, erasing, or destroying, as defined or described under applicable DP Law;
• “Shopify Store” or “Store” means a cloud-based ecommerce store hosted on the Shopify platform, owned by a Merchant;
• “Sub-processor” means an entity the Data Processor (or any Sub-processor of the Data Processor) engages to Process Personal Information on the Merchant’s behalf in connection with this Agreement;
• “Support” means Digital Hub’s standard ticket-based email technical support made available by it in relation to the App;
• “UK GDPR” means the GDPR, as transposed into United Kingdom national law by operation of Section [3] of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, as amended or replaced from time to time;
• “User” means a natural person accessing an App using login credentials associated with the Merchant’s Shopify Store.

All dollar amounts are in United States Dollars ($USD).

The term “including” means “including but not limited to” in all instances in this Agreement. References to the singular mean the plural, and vice-versa, where the context requires.

The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) will not apply to this Agreement.

3.1 Conflicts

The original language of this Agreement is English. We may make translations available for convenience. In case of conflicts between the original English version and any translation, the English version will prevail.

If there is a conflict between the terms of the App Privacy Policy and the terms of this document, the Privacy Policy will prevail.

The Apps are designed to enhance the Shopify ecommerce platform, and provide additional value-add features to your existing Shopify Store. We make reasonable efforts to explain each App’s features to you in the listing in Shopify’s app store, but we do not guarantee an App will look or perform exactly like it appears on a demo page. If you have any questions about any terms or details of any of our Apps, please reach out to us at the contact information below.

4.1 Providing the Apps

Subject to the terms of this Agreement, we will:

1. make the Apps available to you;
2. process Merchant Data in compliance with this Agreement and applicable law;
3. as the data processor, assist you, as the data controller, in meeting your obligations under Regulation (EU) 2016/679, providing subject access, and allowing Data Subjects to exercise their rights under Regulation (EU) 2016/679;
4. provide Support to you at no additional charge; and,
5. use commercially reasonable efforts to make the Apps available 24 hours a day, 7 days a week, except for:
   1. planned downtime (of which we will give advance notice); and,
   2. any unavailability caused by circumstances beyond our reasonable control, including, for example, an act or omission of any third party including Shopify, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, failure or delay of suppliers or service providers, or denial of service attack.

4.2 Modifications to the Apps

We reserve the right to modify the Apps, or any part or element thereof, from time to time upon notice, and at our sole discretion, including:

1. rebranding the Apps at our sole discretion;
2. ceasing to provide, or discontinuing the development of, any particular App, or part or element of the Apps, temporarily or permanently;
3. taking such action as is necessary to preserve our rights upon any use of the Apps that may be reasonably interpreted as violation of our intellectual property rights, distribution of internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity;
4. changing the Fees for Plans, or adding Fees for overages or additional services or features;
5. changing the method of accessing the Apps or Support; and,
6. any similar action to the above related to Support.

As applicable, you may be notified of such modifications when logging in to your Shopify Store. Modifications, including changes in Fees, will become effective thirty (30) days after notice is given. If you do not accept the modification, you must uninstall the App from your Shopify Store before the effective date of the modification provided in the notice, and this Agreement will terminate as of the uninstallation.

Your continued use of the Apps, or any part or element thereof, after the effective date of a modification will indicate your consent to the modifications. We will not be liable to you or to any third person for any modification, suspension, or discontinuance of the Apps, Support, or any part or element thereof.

5.1 Fees

The use of each App is subject to a Fee. After installing an App, you must select a Plan. Different rates apply to different Plans, and are as listed on the app description page in the Shopify app store. Subscribing to a Plan through your Shopify Store constitutes your consent to be charged the applicable Fees through the Shopify Billing API.

Fees are charged in advance on the payment intervals listed in the App description, unless agreed otherwise. Your credit card on file with Shopify will be automatically charged for the Fee for the next payment interval according to your then-current Plan. All Fees are non-refundable. There are no refunds or credits for periods where you did not use the Apps, used them only partially, or terminated this Agreement during an ongoing payment interval.

We may change our Fees at any time, at our sole discretion, by providing reasonable, prior written notice to you. Your continued use of an App after the price change becomes effective will signify your acceptance of the new Fees.

5.2 Changing Plans

You may upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by us.

If you upgrade to a more expensive Plan, the unused portion of any prepaid Fees will be applied to the Fee of the more expensive Plan. If you downgrade to a less expensive Plan, the unused portion of any prepaid Fees will be provided as a credit on future billing periods, but will not be refunded if you terminate this Agreement with a credit balance.

Downgrading your Plan may cause the loss of features, or the loss of Merchant Data.

5.3 Free Trial

The duration and specific terms of any Free Trial will be displayed during the App install process. You will not be charged for the Plan until the free trial period has expired.

Your continued use of an App after the free trial period will be your consent to be charged the applicable Fees. Your credit card on file with Shopify will be billed automatically for the first billing interval upon expiry of the free trial period. If you do not pay the first Fee at the expiry of the free trial, we have the right to terminate this Agreement without further notice to you, and permanently delete all Merchant Data upon termination.

Except for your obligation to pay Fees, the terms of this Agreement will apply during any free trial period.

Unless otherwise indicated, the sale is finalized when the payment of Fees is successfully processed.

When you make a payment, you confirm that you are entitled to use the method which you have used to make the payment. The pricing for each Plan is exclusive of applicable taxes and fees, which will be added to the total amount you are required to pay and billed to your method of payment. All payments are processed by Shopify, and receipts are provided in the Bills section of the Billing page of your Shopify Store.

You are solely responsible to keep your method of payment information up to date.

7.1 Uploading Merchant Data to the Apps

All rights, title, and interest in and to the Merchant Data belong to you, or your Customers or Users as applicable.

By uploading Merchant Data to an App, you authorize us to process the Merchant Data in accordance with this Agreement. We strongly recommend that you review carefully what you transmit, submit, or post to or through an App.

7.2 Responsibility for Merchant Data

You are solely responsible for the Merchant Data, including:

1. the content and accuracy of Merchant Data;
2. ensuring the creation, transmission, display, processing, or other use of the Merchant Data in accordance with this Agreement:
   1. has been duly authorized or consented to by all persons whose authorization or consent is required;
   2. does not violate this Agreement or any applicable law;
   3. does not violate or infringe the rights of Digital Hub, Shopify, Customers, Users, or third parties, including privacy and intellectual property rights;
   4. is not harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; and,
3. ensuring that you and any associated Users have the necessary rights, permissions, and consents to use the Merchant Data, including to insert it into an App and process it by means of an App.

7.3 Unlawful Merchant Data

We are not obliged to pre-screen, monitor, or filter any Merchant Data or its processing by you. However, if unlawful Merchant Data or the action of its unlawful processing is discovered, or brought to our attention, or if there is reason to believe that certain Merchant Data is unlawful, we may, in addition to any other remedy available to us:

1. notify you of such unlawful Merchant Data;
2. deny its insertion into the App, restrict access to, or delete unlawful Merchant Data from the App;
3. demand that you bring the unlawful Merchant Data into compliance with this Agreement and applicable law; and,
4. suspend access to the App until the situation is resolved to our reasonable satisfaction.

If we are presented with convincing evidence that the Merchant Data is not unlawful, we may, at our sole discretion, restore such Merchant Data, which was removed from the App, or access to which was restricted.

7.4 Compelled Disclosure

We may disclose a Merchant’s confidential information to the extent compelled by law to do so. In such instances, we will use commercially reasonable efforts to provide you with prior notice of the compelled disclosure (to the extent legally permitted) and we will provide reasonable assistance, at your cost, if you wish to contest the disclosure. If we are compelled by law to disclose your confidential information as part of a civil proceeding to which we are a party, and you are not contesting the disclosure, you will reimburse us for our reasonable cost of compiling and providing secure access to that confidential information.

Conditional on your compliance with this Agreement including the payment of the applicable Fees, we grant you and your Users a non-exclusive, non-transferable, non-sublicensable licence to use the subscribed App to:

1. collect, store, organise, and display Merchant Data;
2. modify and delete Merchant Data; and,
3. use the App in accordance with this Agreement.

All Personal Information of you or your Customers which is Processed by us through the App is done as Data Processor on behalf of you, the Data Controller. The Information each App Processes and why is set out in our App Privacy Policy.

9.1 Our Obligations when acting as a Data Processor

We will, as Data Processor for you:

1. Process Personal Information on behalf of, and in accordance with, your instructions. We will not sell, retain, use, or disclose Personal Information for any purpose other than for providing and servicing the Apps, and to comply with applicable laws, unless otherwise permitted in this Agreement or DP Law;
2. ensure that all persons we authorizes to Process Personal Information in the context of the Apps are granted access to Personal Information on a need-to-know basis and are committed to respecting the confidentiality of Personal Information;
3. to the extent required by DP Law, inform you of all formal requests we receive from Data Subjects (including verifiable consumer requests under PIPEDA) exercising their applicable rights under DP Law, including to access their Personal Information; or, have their Personal Information corrected, or erased in the case of Personal Information which is no longer needed for us to fulfil our obligations under applicable law or this Agreement (we will not respond to these requests, unless you instruct us in writing to do so);
4. to the extent required by DP Law and permitted by applicable law, inform you of each request we receive from a public authority requiring us to disclose Personal Information Processed in the context of the Apps or participate in an investigation involving that Personal Information;
5. to the extent required by DP Law, and taking into account the nature of the Processing and the information available to us, provide reasonable assistance through appropriate technical and organizational measures to you, at your expense, to assist you in complying with your obligations under DP Law;
6. implement and maintain a security policy to protect Personal Information;
7. If we are required by PIPEDA, or other applicable DP Law to notify you of an Incident, then we will notify you without unreasonable delay, but in no event later than any time period required by the applicable DP Law. For Incidents affecting Personal Information subject to GDPR or UK GDPR, we will notify you no later than 48 hours after we become aware of the Incident. We will provide reasonable assistance to you in responding to the Incident. Except as required by DP Law, we will not notify your affected Data Subjects about an Incident without first consulting you;
8. engage Sub-processors as necessary to provide and service the Apps on the basis of the general written authorization you give us under Section [9.2] below;
9. to the extent required by DP Law and upon your written request, provide such reports as may be required to support privacy audits or inspections of you, at your expense;
10. at your choice, and subject to us exercising our rights and performing our obligations under this Agreement, delete or return all Personal Information to you after the end of the provision of the Apps, and delete existing copies, unless we are required or authorized by DP Law to store Personal Information for a longer period; and,
11. to the extent applicable to the Apps, we certify that we understand and will comply with the requirements in this Agreement relating to PIPEDA.

Sub-processors

You specifically authorize the engagement of the Sub-processors listed below, whose URLs may be updated or replaced from time to time. You acknowledge that our Sub-processors are essential to provide the Apps, and that if you object to our use of a Sub-processor, then notwithstanding anything to the contrary in this Agreement, we will not be obligated to provide you the Apps for which we use that Sub-processor.

We will enter into an agreement with each Sub-processor that imposes on the Sub-processor obligations comparable to those imposed on us under this Agreement, including implementing appropriate Data Security Measures. If a Sub-processor fails to fulfill its data protection obligations under that agreement, we will assist you in pursuing a remedy with that Sub-processor.

List of Sub-processors:

Gadget
Service provider for App hosting, data transfer, and data storage. Based in Canada. See Gadget’s Terms of Service and Privacy Policy.

Google
Service provider for advertising, analytics, email, and usage tracking. Based in the United States. See Google’s Terms of Service and Privacy Policy.

Help Scout
Service provider for customer service features (email support, chat support, documentation). Based in the United States. See Help Scout’s Terms of Service and Privacy Policy.

Mixpanel
Service provider for analytics and usage tracking. Based in the United States. See Mixpanel’s Terms of Use and Privacy Policy.

OpenAI
Service provider for App AI (artificial intelligence) functionality. See OpenAI’s Terms of Use and Privacy Policy.

Shopify
Service provider for payment processing and for all features requiring store, customer, order, and product data. Based in Canada. See Shopify’s Terms of Service and Privacy Policy.

Twilio SendGrid
Service provider for email notifications and marketing. Based in the United States. See Twilio’s Terms of Service and Privacy Policy.

Liability Disclaimer

DIGITAL HUB WILL NOT BE LIABLE FOR ANY CLAIM BROUGHT BY A DATA SUBJECT ARISING FROM, OR RELATED TO, DIGITAL HUB’S OR ITS AFFILIATE’S ACTION OR OMISSION TO THE EXTENT THAT DIGITAL HUB WAS ACTING IN ACCORDANCE WITH THE MERCHANT’S INSTRUCTIONS.

9.2 Your Obligations when acting as a Data Controller

You will:

1. only provide instructions to us that are lawful;
2. comply with and perform all of your obligations under DP Law, including with regard to Data Subject rights, data security and confidentiality, and ensure you have an appropriate legal basis for the Processing of Personal Information as described in this Agreement; and,
3. provide Data Subjects with all necessary information (including by means of offering a transparent and easily accessible public privacy notice) regarding, respectively, our and your Processing of Personal Information for the purposes described in this Agreement.

9.3 Data Transfers

To the extent necessary to provide and service the Apps, we or our affiliates may transfer Personal Information Processed under this Agreement outside the territory in which the Apps are provided, subject to our compliance with DP Law. In respect of any transfers of Personal Information from the EEA, Switzerland, or the UK to any third country that is not subject to an adequacy decision under DP Law, we will implement appropriate safeguards, specified or permitted under DP Law, to ensure we and our affiliates comply with DP Law.

10.1 Prohibited Activities

You will not, and will ensure that your Users do not, use the Apps other than in accordance with the license set out in Section [8], including:

1. to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam” or any other similar solicitation;
2. to violate any applicable regulations, rules, laws, court orders, or similar ordinances;
3. to infringe upon or violate our intellectual property rights or the intellectual property rights of others, or delete any proprietary rights notice from any content;
4. to harass, abuse, insult, harm, defame, slander, annoy, disparage, intimidate, or discriminate based upon gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
5. to submit false or misleading information or otherwise attempt to mislead or impersonate another;
6. to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Apps (or the Shopify platform, other websites, or the internet);
7. to collect or track the Personal Information of others, except for your Customers, in accordance with applicable law and this Agreement;
8. to send advertising or promotion materials, spam, phish, pharm, pretext, spider, crawl, scrape, or facilitate the use of any malware or ransomware;
9. for any damaging, obscene or immoral purpose;
10. to interfere with or circumvent the security features of the Apps (or related website, other websites, or the Internet), including those to prevent copying of content or that limit use; nor,
11. to solicit others to perform or participate in any unlawful or prohibited acts.

We may terminate this Agreement upon notice for violating any of the prohibited uses.

10.2 Certain Uses Require Consent

You or any User may not, without our prior express written consent:

1. sell, resell, lease, licence, sublicence, distribute, provide, disclose, divulge, exploit, or otherwise grant access or make an App available in whole or in part to, any third party, unless such third party is an authorized User of yours;
2. use an App, or any part or element thereof, in a scope with means or for purposes other than, those for which the Apps were created; or,
3. use an App, or any part or element thereof, by means of programs that send them automatic enquiries or requests, unless such program has been made available by us.

11.1 Personal Information

To the extent applicable law requires, you will notify your Customers and Users that you are using us as a service provider, and secure their express consent for us to receive, store, and process Personal Information on your Customers’ or Users’ behalf in accordance with this Agreement.

Each App collects, stores, and uses Personal Information and your business information in different ways. Details regarding what information each App uses, how we use it, and why, are available in our App Privacy Policy.

Any Personal Information is used and stored by us in accordance with law, and we ensure that all third-party-service providers to us who have contact with Personal Information collected under this Agreement have promised to comply with those laws as well.

You may, upon reasonable notice, request a copy of any Personal Information that we hold related to you, your Users, or your Customers. You may provide us with corrections to such Personal Information, and we will make the corrections within a reasonable time.

As part of the functioning of each App, certain information may be collected and stored by third-party applications including Shopify. Their collection, storage, use, and transmission of your information is subject to their own terms of use and privacy policies. We recommend that you review these carefully.

11.2 Representations and Warranties re: Merchant Data

When you transfer Merchant Data to us, you represent and warrant that you have complied with all applicable laws and regulations related to privacy and Personal Information, including having secured the consent of all persons for whom it is required to:

1. transfer the data to us; and,
2. authorize our collection, use, retention, and disclosure of that and other Merchant Data, for the purposes which are set out in this Agreement.

11.3 Protection of Merchant Data

We will maintain reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of the Merchant Data. Those safeguards will include measures for preventing access, use, modification, or disclosure of the Merchant Data by our personnel except as:

1. reasonably necessary to provide the Apps, and prevent or address service or technical problems;
2. compelled by law in accordance with Section [7.4];
3. permitted by this Agreement; or,
4. you or your Users otherwise expressly permit in writing.

The Apps may use equipment or facilities located in Canada, the United States, or the European Union. Our United States service providers have executed the standard contractual clauses approved by the European Commission that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed when using the Apps will receive an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).

By agreeing to this Agreement, you grant us a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the Apps and Support. We will inform you of changes in such processors in accordance with the procedure of modifying this Agreement as stipulated in Section [2] of this Agreement.

You will notify us of any suspected breach or compromise of Merchant Data immediately upon discovery.

11.4 Confidential Information

All nonpublic information which is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, is “Confidential Information”, and includes:

1. nonpublic information relating to technology, services, business plans, promotional and marketing activities, finances and other business affairs, suppliers, and customers;
2. Personal Information; and,
3. similar information of third parties which is disclosed in the course of performing this Agreement.

Confidential Information does not include any information that:

1. is or becomes publicly available without breach of this Agreement;
2. the recipient can demonstrate was already known to them at the time of its receipt;
3. was or becomes available to the recipient on a non-confidential basis from a source other than the discloser, if such source has the right to disseminate such information on a non-confidential basis; or,
4. the recipient can demonstrate was independently developed by it without the use of the other party’s Confidential Information.

Each party will:

1. use Confidential Information only in connection with your use of the Apps and Support as permitted under this Agreement;
2. protect the other party’s Confidential Information to the same standard as its own sensitive business information, and in no event less than industry standard reasonable care, or such higher standard as required by applicable law;
3. ensure that any of employees, contractors, agents, or representatives who have a need to know Confidential Information for your use of the Apps in accordance with this Agreement are bound by confidentiality restrictions at least as protective as those in this Agreement; and,
4. not otherwise disclose Confidential Information during the subscription term or at any time during the five (5)-year period following the end of the subscription term.

11.5 Particularly Sensitive Information

Our Apps are not intended to receive, process, store, or transmit particularly sensitive information such as Personal Health Information (as defined in Ontario’s Personal Health Information Protection Act, 2004, SO 2004 c.3), secret or protected information, privileged information, or other information requiring a higher standard of protection than standard Personal Information.

You will not disclose particularly sensitive information to us, insert such information into an App, or permit an App to access such information. You will be solely responsible for any failure to comply with this restriction.

11.6 Permitted Uses

In addition to any uses disclosed in our App Privacy Policy, and conditional upon us securing confidentiality and non-disclosure assurances at least as strict as those in this Agreement, or as required by law, we may use, disclose, and transfer Merchant Data, Personal Information, and your Confidential Information for our legitimate business purposes, including as part of the sale, merger, or financing of our business, in prosecuting or defending lawsuits, and engaging suppliers and service providers to execute our business processes. We will remain ultimately responsible to you for compliance with this Agreement.

12.1 Our Intellectual Property

We are the sole owner of all intellectual property in the Apps. You may use our intellectual property in the Apps to the extent necessary for the intended functioning of the Apps.

The Apps are protected by copyright law and are owned by us and our licensors, or the party otherwise credited as the copyright holder. Some elements of the Apps may be subject to an open-source license. Except as granted in the limited licence in Section [8] or the applicable open-source license, any use of the Apps, including modification, transmission, presentation, distribution, republication, or other exploitation, in whole or in part, is prohibited without our prior express written consent.

Unless otherwise indicated, all trademark information, such as names, words, titles, phrases, logos, designs, graphics, icons, and similar items which are displayed in the Apps are registered or unregistered trademarks of us or third parties.

While certain trademarks of third parties may be used by us under licence, the display of third-party trademarks in the Apps should not be taken to imply any relationship or licence between us and the owner of the trademark, or to imply that we endorse the wares, services, or business of the owner of the trademark.

12.2 Ownership of Merchant Data

You are the sole owner of all intellectual property in the Merchant Data.

You expressly grant us a non-exclusive, perpetual, royalty-free, transferable, sublicensable, worldwide license to use Merchant Data in an aggregated or anonymized format for research, business development, educational, and other purposes. Once Merchant Data is anonymized or aggregated, it will cease to be Merchant Data, and we will own all such aggregated and anonymized data, and any derivative works we may develop based on it.

Unless specifically permitted by you, your use of the Apps does not grant us the licence to use, reproduce, adapt, modify, publish, sell, or distribute the Merchant Data for our commercial, marketing, or any similar purpose.

You represent and warrant to us that:

1. you either own your Merchant Data, or have the necessary licences, rights, consents, and permissions to use and authorize us to display or otherwise use the Merchant Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Merchant Data in a manner consistent with the intended features of the Apps and this Agreement, and to grant the rights and licence set forth in this Section; and,
2. neither the Merchant Data, nor our use of it pursuant to this Agreement do not and will not:
   1. infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
   2. violate any applicable law or regulation anywhere in the world; or,
   3. require obtaining a licence from, or paying any fees and/or royalties by us to, any third party for the performance of our obligations under this Agreement.

12.3 Feedback

If you or your Users provide us with any comments, bug reports, feedback, or modifications for the Apps or Support (“Feedback”), we will have the right to use such Feedback at our discretion, including the incorporation of such suggested changes into the Apps. You or your Users (as applicable) hereby grant us a perpetual, irrevocable, nonexclusive, royalty-free licence under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit, and use your Feedback for any purpose.

12.4 Publicity and Branding

We may disclose that you are one of our Merchants and display your business name and logo (including in our publicity and marketing materials), provided that you may revoke the foregoing rights upon prior written notice to us.

13.1 Availability

The Apps and Support are provided “AS IS” and “AS AVAILABLE.” The Apps or Support may be temporarily unavailable from time to time for maintenance or other reasons. Shopify may disable access to the Apps at any time and without notice. We may discontinue, modify, suspend, disrupt any or all of the features and functionality of the Apps or Support at any time and without notice to you. We cannot guarantee that the Apps or Support or any of their components will be accessible or functional in any particular place, or on any particular device or operating system. We will not be liable for any losses or damages that may result from any lack of availability.

13.2 Third Parties

Your use of the Apps or Support may rely on services and products which are offered by third parties (“Third-Party Services”). We have no responsibility to you for anything third parties do (or fail to do) and we provide no warranties or guarantees about third parties or Third-Party Services. Your use of Third-Party Services may be subject to specific terms and conditions which are set by those third parties.

The App may contain links to third-party websites, applications or services. These links are provided solely as a convenience to you and not as an endorsement by us of any third party. Unless expressly stated, we do not operate any third-party website, applications, or services linked to the Apps and are not responsible for their content. We make no representation, warranty, or covenant of any kind regarding any third party including those regarding:

1. legality, accuracy, reliability, completeness, timeliness, or suitability;
2. merchantability or fitness for a particular purpose of any third-party websites, material, content, software, goods, or services located at, or made available by, such third party; or,
3. that the operation of such third-party websites, applications, or services will be uninterrupted or error free, that defects or errors will be corrected, or that they will be free from viruses or other harmful components.

We disclaim any and all liability for the acts, omissions, and conduct of any third party. Under no circumstances will we, our officers, directors, employees, agents, licensors, or their respective successors and assigns, be liable to you for any injury, loss, damage, or expense arising in any manner whatsoever from:

1. the acts, omissions, or conduct of any third party; or,
2. any access, use, reliance upon, or inability to use any materials, content, goods, or services located at, or made available at, any website linked to or from the Apps;

… regardless of the cause and whether arising in contract, tort, or otherwise.

The limitations in this Section apply even if we knew of or ought to have known of the possibility of such damages.

13.3 Disclaimer of Warranties

While we endeavour to provide information that is correct, accurate, current, and timely, except as expressly stated in this Agreement, we make no representations, warranties or covenants, express or implied, about the Apps or Support except as expressly stated in this Agreement, including any warranty regarding:

1. merchantability or fitness for a particular purpose;
2. accuracy, completeness, currency, reliability, or timeliness;
3. suitability of an App for your requirements;
4. title or non-infringement;
5. reliability of the results that may be obtained from the use of the Apps;
6. the App being valid, applicable, or advisable for use or accessible in your jurisdiction of use;
7. that your use of the Apps or Support will be secure, uninterrupted, or virus- or error-free;
8. that defects or errors in the Apps or Support, be it human or computer errors, will be corrected;
9. that the Apps will be free from viruses or harmful components; and,
10. that communications to or from us, whether through the Apps or Support or not, will be secure or not intercepted.

You acknowledge and agree that your access and use of the Apps and Support is entirely at your own risk and liability.

13.4 Connectivity

You are solely responsible for all hardware, software, and services required to access and use your selected Apps.

You will defend, indemnify and hold harmless Digital Hub and its affiliates, and our respective directors, officers, employees, and agents, from any claims, losses, damages, liabilities, including legal fees, arising from or related to:

1. your use or misuse of the Apps or Support;
2. errors or inaccuracies in the Merchant Data;
3. representations or warranties made to us, our affiliates and/or third parties;
4. violation of this Agreement;
5. violation or infringement of the rights of any other person or entity, including a breach of Shopify’s terms of use;
6. your gross negligence, illegal acts, or wilful misconduct; and,
7. any chargeback costs (plus any taxes or related fees) which we are required to pay arising from or related to a payment dispute arising from or related to the Apps.

We reserve the right, at our own expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate with such defence of these claims.

15.1 No Liability

We will not be liable to you, your Users, or any third party claiming through you for any consequences arising from or related to:

1. any modification of this Agreement, Fees, Apps, Support, or any part or element thereof;
2. any error, permanent or temporary interruption, discontinuance, suspension, or other type of unavailability of the Apps or Support;
3. deletion of, corruption of, or failure to store any Merchant Data;
4. access to or use of Merchant Data by you or your Users;
5. upgrading or downgrading the current Plan;
6. the loss of any Merchant Data arising from or related to late or non-payment of Fees;
7. any disclosure, loss, or unauthorized use of the login credentials of you or your Users;
8. your use of the Apps through devices or browsers (including add-ons) other than those accepted or supported by us;
9. the application of any remedies against you or your Users by us, for example, if you or your Users have committed a crime or conducted a breach of applicable law by using the Apps or any part or element thereof;
10. our application of the remedies described in this Agreement, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards;
11. failure to provide us with accurate information about you or your Users;
12. failure to provide any product or service which you have agreed to provide to such a person or organisation (whether such failure arises as a result of our negligence, breach of this Agreement or otherwise);
13. failure to ensure the lawfulness of, or obtain the necessary rights to, use the Merchant Data; or,
14. failure to abide by the terms of this Agreement.

15.2 Limitation of Liability

IN NO EVENT WILL THE AGGREGATE LIABILITY OF DIGITAL HUB AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY THE MERCHANT HEREUNDER FOR THE APPS GIVING RISE TO THE LIABILITY IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT THE MERCHANT’S PAYMENT OBLIGATIONS IN SECTIONS [5] AND [6] OF THIS AGREEMENT.

15.3 Exclusion of Consequential and Related Damages

IN NO EVENT WILL WE OR OUR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF WE OR OUR AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

16.1 For Convenience

This Agreement may be terminated for convenience upon written notice to the other party (as indicated in Section [18.7] of this Agreement):

1. by you at any time by revoking the billing agreement in your Shopify Store, or by uninstalling the Apps through your Shopify Store;
2. by us upon decision to cease operating our business or the Apps; or,
3. immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency, or a negotiated settlement with the other party’s creditors is concluded, or an assignment is made on behalf of the other party for the benefit of creditors.

16.2 For Default

This Agreement may be terminated for default upon written notice to the other party (as indicated in Section [18.7] of this Agreement):

1. by either party in case of breach of this Agreement by the other party, if the breach has not been cured within thirty (30) days of receipt of a notice from the non-breaching party; or,
2. immediately by either party if the other party breaches its obligations (as applicable under Sections [11] or [12.1] of this Agreement).

16.3 For Abuse

We reserve the right to terminate your access to the Apps immediately for any abuse of our support staff.

16.4 Effect of Termination

Upon termination or expiration of this Agreement for any reason, your access rights granted hereunder will also terminate. All fees paid are non-refundable, and you will be responsible to pay the full remainder of the Fees for the billing cycle during which the Plan was terminated or expired.

Upon termination of this Agreement:

1. We will deactivate (cancel) your subscription and permanently delete the Merchant Data, within thirty (30) days of the effective date of termination of this Agreement.
2. You will:
   1. stop using and prevent the further usage of the Apps;
   2. pay any amounts owed to us under this Agreement; and,
   3. discharge any liability incurred under this Agreement prior to termination.

The following provisions will survive the termination of this Agreement: Sections [3], [7.4], [10], [11], [12], [13], [14], [15], [17], and [18].

16.5 Suspending Access

We may, in addition to any other remedy available to us, and at our sole discretion, elect to suspend or terminate access to, or use of, the Apps to anyone who violates this Agreement; or, if we have reasonable grounds to believe that you or your Users’ use of the Apps or Support may harm any third persons, we have the right to take adequate measures under our control to prevent, stop, and eliminate the harm, where possible, in order to protect those third persons.

17.1 Governing Law

This Agreement is governed by and will be construed under the laws of the Province of Ontario, Canada, and the federal laws of Canada which apply in Ontario, without regard for conflict of laws principles.

17.2 Dispute Resolution

We may, at our sole discretion, and without prejudice to our rights under this Agreement, elect to bring a claim for injunctive relief in any court of competent jurisdiction, or to join you in a suit brought by a third party.

Otherwise, all disputes arising out of or related to this Agreement or any legal relationship associated with or derived from this Agreement, will be exclusively and finally resolved by:

1. good faith negotiation between the Parties, facilitated if necessary by a neutral third-party mediator as agreed upon by the Parties; and,
2. if the Parties are unable to negotiate a resolution, the dispute will be referred to binding arbitration pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. (the “Rules”).
   1. The place of the arbitration will be in the City of Toronto.
   2. The language of the arbitration will be English.
   3. Arbitration will be conducted by a single arbitrator. If the Parties are unable to agree on an arbitrator, the Parties will have one appointed according to the Rules.
   4. All filing fees will be paid for by the party which files the notice of arbitration. The arbitrator will determine who will bear the costs of the arbitration as part of their award.
   5. The award, including the determination of costs rendered by the arbitrator will be final, and not subject to appeal.

Notwithstanding the foregoing, both Parties agree that nothing herein will be deemed to waive, preclude, or otherwise limit either Party’s right to pursue enforcement actions through applicable federal, state, provincial, or local agencies where such actions are available.

Waivers

You waive your right to participate in a class action lawsuit or class-wide arbitration. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.

Limitations

To the maximum extent permitted by law, and without limiting the effect of any disclaimer in this Agreement, any cause of action or claim that you may have arising from or related to this Agreement must be commenced within one (1) year after the claim or cause of action arises.

18.1 Relationship of the Parties

The Parties will act solely as independent contractors. This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Parties, and you will not represent to the contrary, whether expressly, by implication, appearance, or otherwise. This Agreement is not for the benefit of any third parties.

We are not a party to any relationship between you and any third party, including you and your suppliers and service providers, or you and your Customers; and, as such, we have no responsibility to you as regards to your relationships with these third parties. You acknowledge and agree that you have no recourse against us for any acts or omissions of third parties, and your interaction with third parties is entirely at your own risk.

18.2 Relationship with Shopify

We are solely responsible for the Apps, as set out in this Agreement. Shopify is not liable for any fault in the Apps or any harm that may result from their installation or use. Except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the Apps. Shopify is not responsible for any liability which may arise from your access to or use of the Apps, including:

1. the development, use, marketing or distribution of, or access to the Apps, including support of the Apps; or,
2. our access, use, distribution, or storage of Merchant Data.

18.3 Severability

If any term, condition, or provision of this Agreement is held to be invalid, unenforceable, or illegal in whole or in part for any reason, that provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties. The validity and enforceability of the remaining terms, conditions, or provisions, or portions of them, will not be affected.

18.4 Entire Agreement

This Agreement is the entire agreement between the Parties regarding your use of the Apps and Support, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement, will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.

18.5 Assignment

You may not, directly or indirectly, in whole or in part, by operation of law or otherwise, subcontract, assign, or otherwise transfer this Agreement without our prior written consent. Any attempted assignment, transfer, or delegation without such prior written consent will be void and unenforceable.

Notwithstanding the foregoing, if you are not in default under this Agreement, you or your permitted successive assignees or transferees, may assign or transfer this Agreement, or delegate any rights or obligations hereunder, upon notice to us:

1. to any entity controlled by, or under common control with, you or your permitted successive assignees or transferees; or,
2. in connection with a merger, reorganisation, transfer, sale of assets or product lines, or change in your control or ownership, or your permitted successive assignees or transferees.

18.6 No Waiver

Failure of either party to exercise or enforce any provision of, or any of its rights under, this Agreement will not be deemed a waiver of future enforcement of that or any other provision or right.

18.7 Notices

Any notices related to billing, support, or marketing, will be sent to the email address designated by you in the App. Such notice is deemed to have been given on the date that the email was sent.

Otherwise, any notice required under the terms of this Agreement may be given by either Party by personal delivery, registered mail with signature required for delivery, or by email. Notice is deemed to be given:

1. when delivered personally;
2. on the second business day after deposit in registered mail; or,
3. on the day after leaving the servers of the sending Party by email.

Notices to us will be addressed to:

We may change our address for notice by updating this Agreement. You may change your address for notice by updating your email address in the App.