PLEASE READ THIS SHOPAMINE MASTER SERVICE AGREEMENT CAREFULLY. THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF THE SHOPAMINE SERVICE. BY SETTING UP A USER OR TRIAL ACCOUNT AND CLICKING [I AGREE] OR USING ANY OF THE SHOPAMINE SERVICES THAT DO NOT REQUIRE REGISTRATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SHOPAMINE SERVICE.
PREAMBLE AND INTRODUCTORY REMARKS
This Shopamine Master Service Agreement (hereinafter: “Terms” or “Agreement”) published on this page applies to all websites and services that are represented by the Shopamine (unregistered) trademark and govern the setting-up, use and access of the Shopamine Service and the www.Shopamine.com website, whereby all bolded terms are further defined in point 3.
These Terms represent a set of template points, terms and clauses that form an agreement that may be entered into as described in point 1.1. between the following parties:
- APPOTEKA, razvoj spletnih aplikacij, d.o.o., company reg. no.: 3497623000, Kamniška 41-1000, Ljubljana, Slovenia, the owner and supplier of the Shopamine Service and the www.Shopamine.com website (hereinafter: “we”, “us”, “our” or “Provider”) who can be reached support@shopamine.com or through the messaging application on the aforementioned website and other official communication channels,
- and you (hereinafter: “you”, “your”, “User”) the legal entity that shall be identified as the registered user of the Service when you, the duly authorized individual representing said entity, register an account (i.e. perform the actions from point 1.1. of this Agreement in the name of the company you validly represent) is bound to this Agreement and the Shopamine Data Processing Agreement in accordance with the terms contained herein. The aforementioned also relates to any and all Permitted Users, Personnel and User Affiliates.
Before the application of these Terms and the Shopamine Data Processing Agreement as described in point 1.1. you are asked to dully review, understand and get acquainted with the content of both these Terms and the Shopamine Data Processing Agreement.
All enquiries regarding these Terms, the Shopamine Data Processing Agreement, pricing and payment terms as well as the Service may be directed at support@shopamine.com.
1 THE APPLICATION OF THESE TERMS AND THE SHOPAMINE DATA PROCESSING AGREEMENT
1.1 By setting up a user or trial account and clicking [I AGREE] or using any of the Shopamine Services which do not require registration, you warrant:
a that you have read, understand, agree to and accepted these Terms and that you have therefore entered into a legally binding agreement with the Provider in the context of the terms and clauses herein, and
b that you are not acting as a consumer and are of legal age to conclude this binding Agreement with the Provider and have the necessary legal authority to enter into this Agreement on behalf of the legal entity you are hereby representing and have named as the User, and
c that you or the legal entity which you have named as the User shall exclusively access and use the Shopamine Service and the www.shopamine.com website in order to conduct its professional or business activities in a lawful, respective and compliant manner, observing all Applicable legislation as it relates to your use of the service and performance of your business activities, and
d that you have also read and agree with the Shopamine Data Processing Agreement which you have simultaneously entered into by performing the actions from point 1.1., and under which the Provider shall be deemed as the Processor and you shall be deemed as the Controller of any and all Personal data that shall be sent, transmitted or transferred to the Provider directly or through the use of the Shopamine Service or the www.shopamine.com website for the performance of the Service by you or any third party. The Shopamine Data Processing Agreement forms an integral and indispensable part of this Agreement and your use of the Shopamine Service and the www.shopamine.com website for your business activities, whereby the full text of the Shopamine Data Processing Agreement can be found here.
1.2 If you do not agree to these Terms or the terms of the Shopamine Data Processing Agreement, you are not authorized to validly register an account with us as well as access or use the Shopamine Service and the www.shopamine.com website for your business activities, and you must immediately stop doing so.
2 CHANGES
2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the www.shopamine.com website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Shopamine Service and the www.shopamine.com website from the date on which the Terms have changed, you agree to be bound by any such changed Terms.
2.2 These Terms were last updated on the 28th of November 2022.
3 INTERPRETATION
3.1. In these Terms:
User Affiliate shall mean in respect of the User and his legal entity, any other legal entity or private person
controlling the User or being controlled by the User, or acting under the direct influence or instructions of the User, whereby “being controlled by” shall mean the possession, directly or indirectly, solely or jointly with another person, of power to direct or cause the direction of the management or policies and cations of a legal or natural person (whether through the ownership of securities, other shareholders, partnership or ownership interest, by establishing total or partial identity of individuals in management, by contract or otherwise).
User account shall mean the access account for the use of the Service. The User account shall be made accessible by the Provider when the User uses the login details that he had provided and upon first (or potentially sequential) acceptance of these Terms. The User account shall also include the Free Trial account.
Applicable legislation shall mean but not be limited to the European Union’s General Data Protection Regulation (2016/679) (hereinafter: “GDPR”) as well as any and all applicable EU and national laws and other statutes, rules, regulations and codes, as they may apply to the use and the consequences of use of the Shopamine Service by the User in the country where the User or his legal entity is established or operates or where the End Customer or other effected natural persons reside, as amended, replaced or superseded from time to time. Applicable legislation shall also mean Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules as well as any local consumer protection / online sales / tax and other laws, but not be limited to any and all USA equivalents of such laws (e.g. the California Consumer Privacy Act (CCPA), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (COPPA), as well as relevant codes of conduct and industry standards, as amended, replaced or superseded from time to time.
A Party shall mean either you or the Provider whereby the term also includes a Party’s permitted assigns.
Consent shall mean any freely given, specific, informed and unambiguous indication of the Data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of Personal Data relating to him or her, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.
Controller shall mean the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation. Please note, that even in the event that you are not in fact the Controller of Personal Data that you are using or wish to use in connection with the Service, you expressly warrant and represent to the Provider, that you have the necessary legal grounds and have obtained the required consent for the processing of the Data subjects Personal Data in connection with your use of the Service from the actual Controller of said Personal Data.
Confidential Information shall mean any information that is not public knowledge and that is obtained from the other Party in the course of, or in connection with, the provision and use of the Shopamine Service. Our Confidential Information includes all Intellectual Property owned by us (or our licensors), including the proprietary Shopamine Service, its code, texts, databases and other copyrights, while your Confidential Information includes the Data.
Downtime shall mean any and all occasions when the Shopamine Service (and subsequently any and all related End Customer Facing Stores and Websites as well as End Customer Messages) and any connected services or Underlying System may be unavailable to the User, User Affiliates, End Customers or third parties. This shall generally be the case when the Provider shall perform regular or irregular maintenance work or other necessary developmental activity. This may also be the case in relation to any and all Force Majeure events.
Data shall mean all data, content, and information (including Personal Data) owned, held, used or created by you or on your behalf that is stored using, or inputted into the Shopamine Service.
End Customer shall mean a natural or legal person with whom you, your User Affiliates or agents sell to/communicate with or otherwise interact with through the Shopamine Service (e.g. consumers who visit or buy goods and services on/through websites and online stores that you have created with the Shopamine Service).
End Customer Facing Stores and Websites shall mean the online websites and stores that the User creates, hosts and manages with the Shopamine Service. End Customer Facing Stores and Websites represent all of the catalogs, texts, images, photographs, products, items, goods, links, integrates APIs, tools, databases, as well as any and all content that is made available to visitors / End Customers on websites / online stores that have been created with the Shopamine Service.
End Customer Message shall mean any emails, SMS messages, ads, telephone calls, VoIP calls or other forms of communication that the User might use in order to communicate with End Customers through the Service.
Service Plan shall mean the applicable the service plan that specifies the functionalities and other aspects of your use of the Shopamine Service under these Terms, as listed at the time of registration of your User account on our pricing page www.shopamine.com/pricing (e.g. Basic, B2C, B2B, B2C+B2B, Custom, etc.) and as may be updated/amended from time to time in accordance with point 7.6. A list of the features and functionalities contained in your plan shall be sent to you in .pdf form when you register your User account.
Service Fee shall mean the applicable price for using the Shopamine Service from the chosen Service Plan (i.e. the amount that is automatically subtracted from your accounts balance when the conditions from your Service Plan are met or the amount that we invoice in relation to you on a monthly/yearly basis, as the case may be), as listed at the time of registration of your User account on our pricing page www.shopamine.com/pricing (i.e. Pricing / month) and as may be updated/amended from time to time in accordance with point 7.6.
Free Trial shall mean the gratuitous test period of the Service as may be offered on the www.shopamine.com website or inside the Shopamine Service from time to time.
Force Majeure shall mean an event that is beyond the reasonable control of a Party, excluding an event to the extent that it could have been avoided by a Party taking reasonable steps or reasonable care; or a lack of funds for any reason.
Including and similar words do not imply any limit.
Intellectual Property Rights shall mean all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in/on/connected with/underlying the Shopamine Service or www.shopamine.com as well as possible trademarks, service marks, and logos contained therein, which are owned or controlled by the Provider or are licensed to us and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the Republic of Slovenia as well as other international copyright laws, and international conventions. The above-mentioned intellectual property and copyrights as they relate to the Shopamine Service and www.shopamine.com are provided on a “AS IS” basis. Except as expressly provided in these Terms, no part of the Shopamine Service and www.shopamine.com website may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission, which also explicitly includes any enhancement, modification or derivative work.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Provider shall mean APPOTEKA, razvoj spletnih aplikacij, d.o.o., company reg. no.: 3497623000, Kamniška 41-1000, Ljubljana, Slovenia, the owner and supplier of the Shopamine Service and the www.shopamine.com website who can be reached at support@shopamine.com or through the messaging application on the aforementioned website as well as through other official communication channels.
Personal Data shall mean any information relating to an identified or identifiable natural person (hereinafter: Data subject), whereby an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.
Processor shall mean a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.
Privacy policy shall mean the information to be provided to the Data subject where Personal Data are collected from the Data subject, as provided for by Article 13 of the GDPR or by any other relevant Applicable legislation.
Permitted Users shall mean your personnel who are authorized to access and use the Shopamine Service or www.shopamine.com website on behalf of the User.
Person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Personnel includes officers, employees, contractors, User Affiliates, Provider Affiliates and agents of the User or Provider, as the case may be.
Shopamine Service (also called Service) shall mean the online or offline software program that allows Users to quickly set up, host, maintain and manage their website or online shop, with the core functionality as described on www.shopamine.com and Service Plans, as these may be updated from time to time, whereby the software is the proprietary intellectual property of the Provider and is made available to you and your Permitted Users via the www.shopamine.com website/User panel or by way of download and integration of Shopamine APIs or other Provider software. The administration interface for entering/editing/communicating/uploading and otherwise interacting with the Shopamine Service is accessible to the User via the www.shopamine.com website.
Shopamine Data Processing Agreement shall mean the legal agreement that you shall simultaneously enter into together with the Agreement from these Terms when performing the actions from point 1.1., and under which the Provider shall be deemed as the Processor and you shall be deemed as the Controller of any and all Personal Data that shall be sent, transmitted or transferred to the Provider directly or through the use of the Shopamine Service or the www.shopamine.com website for the performance of the Service by you or any third party. The Shopamine Data Processing Agreement forms an integral and indispensable part of this Agreement and your use of the Shopamine Service and the www.shopamine.com website, whereby the Shopamine Data Processing Agreement is subject to the provisions of Article 28 of the GDPR and can be found here.
Service Plan shall mean the set of services or benefits, the scope and price of which are predetermined in advance, which the User obtains from the Provider and for which the User pays the agreed Service Fee on a monthly or yearly basis, as described on the www.shopamine.com/pricing subpage at the time of conclusion of this agreement (i.e. registration of the User account).
Start Date shall mean the date that you register your User account (i.e. first use the Shopamine Service as a registered/Free Trial user).
Shopamine Master Service Agreement (also Terms of Service or Terms or Agreement) shall mean this document as it may be amended from time to time.
Tax (also Taxation) shall mean all forms of taxation, duties, imports and other charges and social and health security charges, whether direct or indirect, including corporate income tax, wage withholding tax, national social and health security contributions and employee social and health security contributions, value added tax, customs and excise duties, capital tax and other legal transaction taxes, dividend withholding tax, land taxes, environmental taxes and duties and any other type of taxes or duties payable by virtue of any applicable national, regional or local law or regulation as well as any penalty, fine, surcharge, interest, charges or costs payable in connection with any Tax or Tax related fine or procedure.
Underlying Systems shall mean the software, IT solutions, systems and networks (including software and hardware) used to provide the Shopamine Service, including any third party solutions, systems and networks.
VAT shall mean value added Tax, as may be applicable based on your location and the Applicable Legislation.
www.shopamine.com shall mean the official website of the Provider and all of its relevant subpages. The administration interface is accessible to the User via this website. On said website the User also has access to documentation for the connection of supporting or parallel services (e.g. the connection of the Shopamine Service to an inventory management system or to an accounting system).
You (also your, User) shall mean the legal entity that shall be identified as the registered user of the Service when you, the duly authorized individual representing said entity, register a User account (i.e. perform the actions from point 1.1. in the name the company you represent) is bound to this Agreement and the Shopamine Data Processing Agreement in accordance with the terms herein. The aforementioned also relates to any and all Permitted Users, Personnel, or your User Affiliates.
3.2. Words in the singular include the plural and vice versa.
3.3. A reference to the Applicable legislation or statute includes references to regulations, orders or notices made under or in connection with such legislation, statute or regulations and all amendments, replacements or other changes to any of them.
4 YOUR OBLIGATIONS
4.1Compliance with Applicable Legislation.
a You hereby acknowledge and agree that compliance with all Applicable Legislation when accessing or using the Shopamine Service and creating/uploading/hosting/updating/sharing/ maintaining/doing business through End Customer Facing Stores and Websites or sending End Customer Messages is the sole responsibility of you as the User. With respect to any and all End Customer Facing Stores and Websites you shall be solely responsible for compliance with any and all Applicable legislation that govern consumer protection, A2P “Application-to-person” messaging, data privacy, data protection, intellectual property, Taxation, the sending of electronic marketing messages, online promotions, discounts, offers, gift cards, coupons, and/or gift certificates, as well as other applicable laws rules and regulations of various other national authorities, state laws, rules, and regulations that may place restrictions and requirements on creating/uploading/hosting/updating/sharing/maintaining/doing business through End Customer Facing Stores and Websites or sending End Customer Messages whenever you use the Shopamine Service or where any End Customers might be potentially affected.
b You hereby acknowledge and agree, that the Provider bares no responsibility with regards to the form, contents, processing, acceptance, repercussions, (including and without limitation the possible loss of data, profit, business interruptions or damages and legal fees that you, any End Customer or any other third party, be it a natural or legal entity, might incur as a result of your use of the Shopamine Service) and the overall legality of any and all End Customer Facing Stores and Websites, End Customer Messages and your related business activities. You shall be solely responsible for the contents, form, information, data, links, and other aspects of the End Customer Facing Stores and Websites as well as End Customer Messages which result from your use of the Shopamine Service and hereby acknowledge and agree, that you are the “host”, “provider”, “seller” and/or “creator”, “sender”, “advertiser” of all End Customer Facing Stores and Websites and End Customer Message.
c You hereby acknowledge and agree, that the Provider does not suggest, monitor, inhibit or in any other way influence the contents, form and overall legality of any and all End Customer Facing Stores and Websites or End Customer Messages, and does not warrant or guarantee the results, accuracy, legality and conformity to Applicable Legislation with regards to your use of the Shopamine Service.
d You hereby acknowledge, agree and warrant under civil liability to the Provider, that during your use of the Shopamine Service (i.e. prior to creating and sending End Customer Messages), you shall always obtain Consent from any and all End Customers with which you wish to interact through the Shopamine Service (i.e. send an email, SMS message, etc.) in compliance of Applicable Legislation and point 4.2 of these Terms.
e You also hereby acknowledge and agree, that the Provider shall not be held liable by you or any third party with regards to your use of the Shopamine Service and your obligations under point 4.1. or your other applicable obligations stemming from these Terms or any Applicable Legislation.
4.2 Obtaining and respecting End Customer Consent at all times during your use of the Shopamine Service and respecting local consumer protection, business, trade, Tax and other online business/sales laws.
a You hereby acknowledge, agree and warrant under civil liability to the Provider, that prior to any and every use of the Shopamine Service by you, as well as any and every transfer/processing of End Customer Personal Data and offering/sale of goods/services to End Customers, that:
- you have set-up the necessary legal means of obtaining End Customer Consent on your/third party website/application/landing site or any other online or offline input form, where such End Customers shall be asked to consensually and legally (as per all Applicable Legislation) offer their Personal Data (namely their telephone number) to you as the Controller in connection with your use of the Service, and that in doing so,
- you have observed and implemented all necessary and mandatory precautions and steps so that the above-mentioned End Customer Consent has been legally obtained by you as the Controller of Personal Data, so that it may be legally submitted to the Provider as the Processor when you are using the Service, as per these Terms, the Shopamine Data Processing Agreement and all Applicable Legislation, whereby in order to comply with these two paragraphs of this point 4.2a,
- you have set-up the necessary legal entity and met all of the other legal requirements under the Applicable Legislation in relation to displaying, offering, marketing, selling, distributing and providing goods/services to End Customers, which includes obtaining the necessary legal help and respecting any and all consumer law and Tax obligations,
- you have explicitly offered the necessary information that you are required to legally give to each and every Data subject / consumer with respect to any and all Applicable Legislation prior to obtaining their Personal Data or validly marketing/selling goods and services to them (and prior to sending any End Customer Messages to them), which must include but is not limited to:
a) setting-up or amending your Privacy Policy and Terms of Sale as well as other required legal information (i.e. cookie policy, cookie pop-up, etc.), so that they include the required information with regards to your data processing and business activities in connection with the Shopamine Service or any End Customer Facing Stores and Websites as well as End Customer Messages (i.e. adding the additional processing information about your use of the Shopamine Service, adding the required online sales information for consumers, respecting the 14 day cooling off period, etc.),
b) setting-up or amending the relevant input fields for obtaining End Customer Data, so that they include a direct link to your Privacy Policy and adding links to relevant information and your Terms of Sale prior to processing the End Customer Data and finalizing any sale,
c) setting-up and concluding the necessary data processing agreements with regards to Article 28 of the GDPR or any other necessary agreements with regards to the relevant Applicable Legislation,
d) setting-up and putting in place all other necessary technical, organizational and security measures and other relevant legal measures that are required as per the relevant Applicable Legislation,
- you have consulted a legal professional regarding your implementation of the above-mentioned steps and local legal and Tax requirements that govern your intended use of the Service and conduct of any and all business activities through End Customer Facing Stores and Websites and dissemination of End Customer Messages, as well as any possible local or sector-specific risks involved,
- in the event that you are not in fact the Controller of Personal Data that you are using or wish to use in connection with the Shopamine Service, you expressly warrant and represent to the Provider, that you have the necessary legal grounds and have obtained the required Consent for the processing of the Personal Data of the Data Subjects in connection with your use of the Service from the actual Controller of said Personal Data.
b The Provider may from time to time list “best-practices”, guides, templates as well as other information, that might aid you in meeting your compliance obligations under these Terms and the Applicable Legislation in connection with the Shopamine Service and End Customer Facing Stores and Websites as well as End Customer Messages on the www.shopamine.com website. You hereby acknowledge and agree, that such materials are purely speculative and are in no way intended to be understood or used as legal or other material advice, and that the Provider makes no representation or warranty with regards to such materials and information, and that no attorney-client relationship is created should you choose to use or act on such materials and information. You hereby acknowledge and agree, that the Provider shall not be held liable by you or any third party with regards to your use of such materials or information.
4.3 Requirements and restrictions regarding End Customer Facing Stores and Websites and End Customer Messages
a You hereby acknowledge, agree and warrant under civil liability to the Provider, that any and all End Customer Facing Stores and Websites as well as any and all End Customer Messages that are sent through the Service to End Customers (e.g. as a form an advertisement or a form of marketing, promotion or solicitation, or that could be understood as such or could be understood as sent with the intent to induce the purchase of goods or services or to solicit a charitable contribution), shall meet the following requirements:
- that any End Customer Message is not being sent through or in connection with the Service to a recipient, who is below the legal age for receiving such forms of communication (e.g. 13 years old /15 years old /18 years old) as the case may be under the Applicable Legislation,
- that the End Customer Message shall not be sent at unlawful times as per the Applicable Legislation (e.g. 9 p.m. to 8 a.m. in the End Customers time zone if so required by the Applicable Legislation),
- that no End Customer Message shall be sent in the form, context or manner, so that it could be understood as “SPAM” (e.g. mass sending of End Customer Message even after the End Customer has opt-ed out, etc.) as per the Applicable Legislation (e.g. the Controlling the Assault of Non-Solicited Pornography and Marketing Act - “CAN-SPAM Act” in the United States of America),
- that prior to sending such End Customer Message via the Service, you have set-up and included a sufficient opt-out mechanism (e.g. an “unsubscribe” link), that complies with the Applicable Legislation (e.g. expressly providing how the End Customer may opt-out of receiving any further messages, including but not limited to including links to your web-based opt-out portal, your opt-out telephone number or by sending a text to the number from which the End Customer Message was sent with the word “UNSUBSCRIBE”, “OPT-OUT”, “CANCEL” etc.),
- that in addition to containing a sufficient opt-out mechanism, the End Customer Facing Stores and Websites and End Customer Messages also contains a notice that informs the recipient of the ability and means to avoid future solicited or unsolicited messages from you and that such notice complies with the Applicable Legislation (e.g. as per Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules), whereby the notice must also include, that any opt-out method not expressly provided in your opt-out provision is unreasonable,
- that the contents of such End Customer Message or offers/advertisements/catalogs on End Customer Facing Stores and Websites that can be considered as an “online offer”, can be clearly understood as an advertisement or form of marketing, promotion or solicitation, or understood as being sent/displayed with the intent to induce the purchase of goods or services or to solicit a charitable contribution by the End Customer as an average consumer or as per the Applicable Legislation,
- that the End Customer Message offers/advertisements/catalogs on End Customer Facing Stores and Websites clearly indicate you as the sender/advertiser and include all relevant information which may include, but is not limited to, your full company name and registration number, your business address, the country you do business from, and other necessary information that should always be given to recipients or consumers in such situations per the Applicable Legislation,
- should the Applicable Legislation provide (e.g. with regards to End Customer Messages being sent to recipients in the United States of America), that a dispute resolution and/or jurisdiction provision must be added, you shall be obliged to expressly include in such provision, that the End Customer waives the right to any class action litigation and/or action and that the End Customer agrees to resolve all disputes in an amicable way (i.e. arbitration) for any Telephone Consumer Protection Act related claims, whereby you expressly warrant to the Provider and agree to include in such provisions, that the Provider shall only be a third party with regards to such class action, arbitration or action being filed against you or a third party.
b You hereby acknowledge, agree and warrant under civil liability to the Provider, that any and all End Customer Facing Stores and Websites as well as End Customer Messages that are uploaded/hosted/maintained/sent/shown through the Shopamine Service to End Customers, shall not in any way contain, mention, direct to, advocate, illustrate, condone, link, share, promote, market, advertise, solicit, store, allude to, include or result in:
a) these Terms being violated,
b) any Applicable Legislation or any other national or international laws, statutes, ordinances or regulations being violated (e.g. International Traffic in Arms Regulations, the Modern Slavery Act of 2015, import and export rules and directives, etc.),
c) facilitating or promoting the sale of products or services which the Applicable Legislation bars from promoting or selling,
d) facilitating or promoting unsolicited, unlawful or non-consent based contact with the End Customer,
e) messages or content which can be objectively identified as “SPAM”,
f) facilitating or promoting unregistered labor or the performance of unregistered services,
g) facilitating or promoting the violation, infringement or misappropriation of Intellectual Property Rights of the Provider or the intellectual property rights of any third party,
h) the violation of privacy rights,
i) false advertising and unfair competition,
j) racist content, promoting segregation, bigotry or discriminating on the basis of age, race, sex, religion, nationality, disability or sexual orientation,
k) messages or business practices that are intended to pray upon the weak, old, young, disabled or impaired,
l) hateful, libelous, threatening, harassing, defamatory contents, or content which promotes violence of any sort
m) the promotion of facilitation or financing of acts of terrorism or know terrorist groups,
n) obscene, pornographic or indecent, vulgar, violent, offensive content,
o) the hosting, dissemination or sharing of harmful data (e.g malware, viruses, Trojan horses, Root-kits, BackDoors, MYSQL Injections, spyware, worms, etc.) as well as malicious or harmful code,
p) facilitating or promoting fraudulent business models and messages or messages promoting illegal MultiLevelMarketing or other illegal schemes,
q) facilitating or promoting gambling,
r) facilitating or promoting tobacco products or alcohol,
s) facilitating or promoting content/practices/links/ that are intended to illegally interact or redirect traffic to crucial infrastructure providers, life-line services, police lines, safety lines, and other utility-related telephone numbers,
t) facilitating or promoting messages which are sent by bots in order to achieve the denial of service of a third party or the Provider,
u) facilitating or promoting messages and activities with the goal ofillegally obtaining, scraping, stealing, harvesting or otherwise collecting information,
v) facilitating or promoting messages and activities that intend to stalk, threaten, abuse, harass, blackmail, or cause physical or psychological damage,
w) facilitating or promoting messages and activities with the apparent or concealed intent of feigning the identity of the sender or with the intent of impersonating a public authority, natural or legal person
4.4 The Provider reserves the right to review the contents of the End Customer Facing Stores and Websites as well as End Customer Messages and has the right to remove any content that is in violation of these Terms. Should the Provider have reasonable grounds to believe that the User has not complied with any or all of the obligations listed in all of the clauses in section 4., or in situations where the Provider shall be directly or indirectly notified that this is the case by an End Customer, a public authority, or any third party, the Provider reserves the right to suspend the User from accessing and using the Shopamine Service as stated in section 12., and to seek just compensation from the User for any and all damages that the Provider or any third party seeking compensation from the Provider, has incurred.
4.5 You and your Personnel warrant, that you shall:
a use the Shopamine Service in accordance with these Terms solely for:
i your own lawful business purposes; and
ii other lawful purposes which do not breach these Terms, any Applicable Legislation and any and all obligations from the clauses in section 4., as well as
b not resell or make available the ShopamineService to any third party, or otherwise commercially exploit the Shopamine Service.
4.6 When accessing the ShopamineService, you and your Personnel shall:
a not impersonate another person or misrepresent authorisation to act on behalf of others or us;
b correctly identify yourself as the provider/seller of any and all goods/services in relation to your End Customer Facing Stores and Websites and as the sender/originator of all End Customer Messages;
c not attempt to undermine the security or integrity of the Underlying Systems;
d not use, or misuse, the ShopamineService in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the ShopamineService;
e not attempt to view, access or copy any material or data other than:
i that which you are authorized to access; and
ii to the extent necessary for you to use the Shopamine Service in accordance with these Terms; and
f neither use the Shopamine Service in a manner, nor transmit, input or store any Data, intellectual property or Personal Data, that breaches any third party right (including the Intellectual Property Rights of the Provider and privacy rights of End Customers) or is Objectionable, incorrect or misleading.
4.7 Without limiting the clauses from section 4., no individual other than a Permitted User may access or use the Service. You may authorize any member of your Personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 4.1, 4.2, 4.3, 4.4 and 4.5 as well as any other reasonable condition notified by us to you.
4.8 A breach of any of these Terms by your Personnel or any Permitted User is deemed to be a breach of these Terms by you.
4.9 You are responsible for procuring all licenses, authorisations and Consents required for you and your Personnel to use the Shopamine Service, including to use, store and input Data into, and process and distribute Data through, the Shopamine Service.
4.10 Account security and the prohibited sharing of User accounts
4.11 The User shall protect the User account username and password with the care of a good businessman and in such a way as to prevent the username and password from coming into the possession of unauthorized third parties.
4.12 The User may not transfer the User account username and password to an unauthorized third party without the express and prior written permission of the Provider.
4.13 All damages, and all risks directly or indirectly related to the misuse, loss or alienation of the User account username and password or any part thereof, shall be borne by the User.
4.14 For any misuse, loss or alienation of the User account username and password or part thereof that may be attributable to the User's wilful or negligent conduct, which causes damage to the Provider or, where a result of such conduct, damage is incurred by a third party who may consequently bring a claim against the Provider, the User shall be liable to the Provider for damages in accordance with the rules of civil law.
5 PROVISION OF THE SHOPAMINE SERVICE, AVAILABILITY OF THE SERVICE, DOWNTIME AND OFFERING TECHNICAL AS WELL AS ON-DEMAND SUPPORT
5.1 We shall use reasonable efforts to provide the Shopamine Service:
a in accordance with these Terms, the Shopamine Data Processing Agreement and the laws of the Republic of Slovenia;
b by exercising reasonable care, skill and diligence; and
c using suitably skilled, experienced and qualified Personnel.
5.2 Our provision of the Shopamine Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person or company, regardless of whether such company might be a direct or indirect competitor to you.
5.3 The Provider allows the User to use already created generic templates free of charge. If the User does not wish to use these, he may use his own design at his own expense. The User also has free access to documentation for the connection of supporting or parallel services (e.g. the connection of the Shopamine Service to an inventory management system or to an accounting system). Any new functionality will normally be made available to all Users on the basis of the chosen Service Plan. The Provider may, at any time, without prior notice and without any compensation to the User, freely choose to make vailable to other Users any functionality that had been developed on the request of a particular User, whereby the User hereby acknowledges that he may not object to this. The Provider may, at any time, without prior notice and without any compensation to the User, discontinue any Shopamine Service functionality that is available to the User free of charge or as part of the User's Service Plan.
5.4 Availability of the service and Downtime
We shall use reasonable efforts to ensure the Shopamine Service is available on a 24/7 hour basis and during 9:00 and 16:00 CET in terms of offering User support. However, it is possible that on occasion the Service may be unavailable in cases of Downtime. We shall use reasonable efforts to publish on www.shopamine.com advance details of any service unavailability that may be foreseeable. The Provider may not be held liable for any damages or other costs that may have been incurred by the User, User Affiliate, End Customer or any third party in relation to any and all Downtime that might have occurred during the term of this Agreement.
5.5 Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make that feature available to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
5.6 The User is responsible for the content and security of his End Customer Facing Storesand Websites as well as End Customer Messages. If the User uses any permitted scripts and programs with the Shopamine Service that are not owned by the Provider, the User is also fully responsible for their proper functioning and regular updating. The Provider does not provide support for the use of such external services.
5.7 Barring the User from using the Shopamine Service should a security risk or other irregular situations arise
The Provider shall automatically and as soon as possible, within a maximum period of 24 hours, temporarily bar the User from using Shopamine Service, in the following cases:
a if 10 consecutive attempts to log into the User account have been unsuccessfully made, using an incorrect password to enter the administration interface;
b if the password to enter the administration interface has been reported as being misused, forgotten, lost, stolen or accessed without authorisation;
c where there are grounds for suspecting that the Shopamine Service has been misused or accessed without authorisation (in this case the suspension can continue past the 24 hour limit from the first paragraph of this point and up until necessary steps are take to ensure the security and integrity of the Shopamine Service as well as the rights and obligations of the entities and individuals involved in the incident).
After the suspension has ended, the Provider may issue a new password to the User so that he may continue using the Shopamine Service via the administration interface.
The Provider may not be held liable for any damages or other costs that may have been incurred by the User, User Affiliate or any third party in relation to any and all Shopamine Service suspensions that had been carried out in good faith and just grounds.
5.8 Offering Support
The Provider shall offer the following regular technical support and on-demand support services in relation to the Shopamine Service:
a regular technical support on the basis of notifications sent to support@shopamine.com. The Provider shall only consider support requests sent to support@shopamine.com from the User's official contact email address.
b the Provider shall offer regular technical support on weekdays between 9:00 and 16:00 CET, whereby support requests shall be processed in the order in which they had been received. The Provider shall endeavor to resolve requests within a reasonable time, but is not obliged to resolve a request in its entirety, but rather only to the extent necessary to enable the continued use of the Shopamine Service.
c the Provider reserves the right to carry out regular and extraordinary technical maintenance on the Shopamine Service.
d the Provider shall only notify the User of regular and extraordinary technical maintenance referred to in the preceding points if the planned interruption of operation shall last for a longer duration. The notification referred to in the preceding sentence shall be made via the www.shopamine.com website or via the contact e-mail addresses of the User or the User account dashboard within the administration interface of the Shopamine Service, at least one day before the planned regular intervention or, in the case of an emergency intervention, as soon as possible.
e the Provider may also offer on-demand support services to the User, which are described in greater detail on www.shopamine.com. The Provider is obliged to perform the on-demand support services in a professional and diligent manner, with the care of a good businessman and a good professional, and in the most rational manner. Such on-demand support services shall be provided on the basis of a written order from, that the relevant User shall send by email to support@shopamine.com. On the basis of such order, the Provider shall issue a written quote to the User for the performance of on-demand support services, specifying the additional services and their price. If the quote is accepted by the User, the Provider and the User shall enter into a separate agreement for the provision of such on-demand support services.
5.9 Additional development or upgrade requests
In agreement with the User and for a fee, the Provider may also provide development and upgrade services in relation to the existing or newly envisaged functionalities of the Shopamine Service, whereby;
- such additional development or requested adjustments/upgrades to the Shopamine Service shall be provided on the basis of a written order from the User, that the relevant User shall send by email to support@shopamine.com. On the basis of such order, the Provider shall issue a written quote to the User for the performance of such additional development or requested adjustments/upgrades to the Shopamine Service, specifying the additional services and their price. If the quote is accepted by the User, the Provider and the User shall enter into a separate agreement for the provision of such additional developmental services,
- the User expressly acknowledges and agrees with the fact, that any newly developed or upgraded functionalities referred to in this section shall remain the exclusive property of the Provider, whereby the Provider may freely offer them to other users or permanently integrate them into the Shopamine Service for all future use by anyone, without being liable in any sense to the User in terms of damage, remuneration, compensation or other claims.
5.10 Exceeding allotted storage space
5.11 The User undertakes not to overload the Provider's servers and to respect the space limit ("Gb") and the traffic limit ("bandwidth kbps", "API requests", "https requests") that had been allocated by the Provider to the User in accordance with his Service Plan and use of the Shopamine Service.
5.12 In the event of excessive use of space and/or traffic, the Provider may limit such use or charge the User for additional space and/or traffic in accordance with the Provider's Service Plan price list.
5.13 Before taking any of the measures referred to in the preceding paragraph, the Provider shall warn the User in writing that he has exceeded his space and/or traffic allocation and inform him of the additional fees that shall be levied if he wishes to continue to use the Shopamine Service in an uninterrupted way under his User account. If the User does not agree to be charged additional fees for exceeding the space and/or traffic for a particular billing period, the Provider shall, without further notice to the User, cap the limits on the Provider's server, which may cause the use of the Shopamine Service by the User or User Affiliates to be slowed down and/or to operate intermittently or to be potentially in a state of Downtime. The User shall be solely and entirely responsible for such slowed and/or intermittent performance and/or Downtime.
5.14 In connection with the costs incurred by the Provider in the event of such situations, which the individual User or User Affiliate has not paid within the agreed time limit despite the Provider's request, the Provider may claim damages and default interest for late payment.
6 DATA
6.1 You acknowledge that:
a we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b to the extent that this is necessary, we may authorize a member or members of our Personnel to access the Data for this purpose.
6.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in the clauses from section 4.
6.3 You acknowledge and agree that:
a we may:
i use Data (excluding any Personal information) and information about your use of the Shopamine Service to generate anonymised and aggregated statistical and analytical data (hereinafter: Analytical Data); and
ii use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
iii other aspects of Data usage, sharing and processing that involve Personal Data, are regulated by the Shopamine Data Processing Agreement;
b you agree, that the title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.4 While we will take standard industry measures to back up all Data stored using the Shopamine Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Shopamine Service, as further specified in the Shopamine Data Processing Agreement.
6.5 You agree that we may store Data (excluding any Personal information) in secure servers and may access that Data (excluding any Personal information) in the Republic of Slovenia for the purposes of maintenance and service upgrades from time to time, as further specified in the Shopamine Data Processing Agreement.
6.6 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our attorneys) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights of the Provider or intellectual property rights and privacy rights of third parties) or that the Data is Objectionable, incorrect or misleading.
7 PAYMENT TERMS, SERVICE FEES AND INVOICING
7.1 Free Trials and Service Fees
7.1.1 The Shopamine Service may be free to use in the 14 day Free Trial period. After the expiry of the 14 day Free Trial period, the Provider shall charge the User a monthly or yearly Service Fee in the form of Service Fee + VAT for the continued use of the Shopamine Service (as per the chosen Service Plan).
7.1.2 The User acknowledges and agrees with the fact that;
- the aforementioned charge shall also be applicable in cases when the User has not yet published his End Customer Facing Stores and Website;
- the Service Fee is set in the Service Plan that had been chosen by the User when registering his User account or determined by the Provider at the time of automatic or manual activation of the User's User account in agreement with the User,
- the Service Fee is calculated in advance for a period of one month (or one year, depending on your Service plan) and is then calculated for all subsequent months until the User cancels the use of the Shopamine Service by terminating his User account as specified in section 12 of this Agreement.
- the Service Fee consists of a basic fixed monthly or yearly amount from the chosen Service Plan and any potentially include charges for additionally chosen add-ons. In certain cases a variable amount may also be added to the Service Fee on the basis of prior written communication and augmentation of the Shopamine Service, which shall be communicated between the Provider and the User.
7.1.3 The fixed monthly or yearly amount of the Service Fee may vary depending on the country in which the Shopamine Service had been advertised and the billing of add-ons is dependant on the type and amount of add-ons that had been selected by the User or assigned to the User by the Provider on the basis of prior written communication. The calculation of the monthly (or yearly) Service Fee is determined in accordance with the official Service Plan price list which had been available on www.shopamine.com/pricing at the time when the User account had been set up.
7.1.4 The fixed part of the Service Fee is always charged for the future usage period. In the event that the Provider and the User agree on a variable part of the Service Fee, the latter shall be charged in the current month for the previous month or for the entire year (in case of yearly plans).
7.2 The Provider may also conclude an individual agreement with the User regarding the amount of the Service Fee and its calculation, which does not need to be respective of the Service Plan price list which had been available on www.shopamine.com/pricing at the time when the User account had been set up.
7.3 All applicable Service Fees and pricing options for individual Service Plans are listed on the pricing page on www.shopamine.com/pricing website. Any and all discounts, promotions or special offers shall also be clearly displayed and listed on www.shopamine.com/pricing or in other official communications at the time of their validity.
7.4 Service Fees and VAT
7.4.1 All prices listed on www.shopamine.com/pricing are listed without VAT.
7.4.2 We shall automatically add the value of the applicable VAT to our Service Fees if applicable VAT charges may be added to the Service fee as per the requirements of your country, so that the Service Fees you pay are the final payment you are required to make for using the Shopamine Service, whereby this does not apply to business within the European Union which do NOT provide us with their verified VAT registration number when registering their User account.
7.4.1. You hereby acknowledge and agree, that you are solely responsible for any and all Tax related issues with regards to your payment of Service Fees to us.
7.5 Invoicing and Payment of Service Fees
7.5.1 The User shall settle the Service Fee within 15 days from the date of the invoice by transferring the funds to the bank account of the Provider, as stated in the relevant invoice.
7.5.2 For the purpose of correct billing of the Service Fee, the User hereby expressly authorizes the Provider to monitor and aggregate the traffic, the disk space used on the servers and the number of API calls made in connection with End Customer Facing Stores and Websites as well as End Customer Messages and any applicable integrations with the Shopamine Service.
7.5.3 In the event of a default in payment, the Provider may claim from the User any due Service Fees and applicable statutory default interest as defined in applicable Slovenian legislation. The Provider may also terminate this Agreement in this case.
7.5.4 If you terminate this Agreement, you hereby acknowledge and agree, that you shall be required to pay to the Provider all applicable Service Fees as per your chosen Service Plan that have fallen due up to the point of termination.
7.5.5 If you terminate this Agreement no Service Fees that have been invoiced by and paid to the Provider shall be returned to the User.
7.5.6 If you do not agree with the abovementioned payment terms, you are required to cease all Free Trial (or other) use of the Shopamine Service and delete your User account prior to any invoice being issued by the Provider (i.e. within the 14 day Free Trial period) in relation to your use of the Shopamine Service.
7.6 Increase of Fees and your right to terminate this Agreement
7.6.1 We may increase the Service Fees or any other fees by giving you at least 5 days’ notice via your accounts official registered email address.
7.6.2 If you do not wish to pay the increased Service Fees or other increased fees, you may terminate this Agreement and your right to access and use the Service as described below in section 12.
7.6.3 If you terminate this Agreement on the basis of increased Service Fees, you hereby acknowledge and agree, that you shall be required to pay to the Provider all applicable Service Fees as per your chosen Service Plan that have fallen due up to the point of termination (i.e. up to the point of the increase).
7.6.4 If you terminate this Agreement on the basis of increased Service Fees, no Service Fees that have been invoiced by and paid to the Provider shall be returned to the User.
7.6.5 If you do not terminate these Agreement on the basis of increased Service Fees and your right to access and use the Shopamine Service in accordance with this section, you are deemed to have accepted the increased Service Fees.
8 INTELLECTUAL PROPERTY
8.1 Subject to clause 8.2, title to, and all Intellectual Property Rights in the Shopamine Service, www.shopamine.com and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership or the validity of those Intellectual Property Rights.
8.2 Title to, and all intellectual property rights in the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the provision of the Shopamine Service and exercise of our rights and performance of our obligations in accordance with these Terms.
8.3 You hereby acknowledge and agree, that to the extent defined herein, you grant us a royalty-free, transferable, revocable (whereby revocation shall be tied to your termination of this Agreement as per the applicable terms) and perpetual license to use for our own business and marketing purposes your domain name, brand name, company name and logo, so that we may generate a sub-page or footer on or in connection with your End Customer Facing Stores and Websites, where the Provider may publicly display, that website in question had been made with the use of the Shopamine Service. We may also use the above stated license in order to publicly display your domain name, brand name, company name and logo on our websites, social media channels and other offline and online marketing materials, where we describe and market the Shopamine Service.
8.4 If you provide us with ideas, comments or suggestions relating to the Shopamine Service or Underlying Systems (hereinafter: Feedback):
a all intellectual property rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the Feedback for any purpose.
8.5 You acknowledge that the Shopamine Service may link to third party websites or feeds that are connected or relevant to the Shopamine Service. Any link from the Shopamine Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
8.6 You acknowledge that the Provider is allowed to mark End Customer Facing Stores and Websites with the Shopamine service mark (application number: 201271297) (or the text "Shopamine Online Store", "Online store by Shopamine", etc.), which may also include a hyperlink to www.shopamine.com. The removal of such mark or link may be individually agreed between the User and the Provider, unless the User is using one of the free design templates that come with the Shopamine Service.
9 CONFIDENTIALITY
9.1 Each Party must, unless it has the prior written consent of the other Party:
a keep confidential at all times the Confidential Information of the other Party;
b effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorized access or use; and
c disclose the other party’s Confidential Information to its Personnel or professional advisors on a need to know basis only and, in that case, ensure that any Personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of, and complies with, clauses 9.1a and 9.1b.
9.2 The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
a for the purpose of performing a Party’s obligations, or exercising a Party’s rights, under these Terms;
b required by law (including under the rules of any stock exchange);
c which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d which was rightfully received by a Party from a third party without restriction and without breach of any obligation of confidentiality; or
e by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
10 WARRANTIES
10.1 Each Party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
10.2 To the maximum extent permitted by law:
a our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to EUR 1.000; and
b we make no representation concerning the quality of the Service and do not promise that the Service shall:
i meet your requirements or be suitable for a particular purpose including that the use of the Shopamine Service shall fulfill or meet any statutory role or responsibility you may have under the Applicable Legislation
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 You agree and represent that you are acquiring access to the Shopamine Service and accepting these Terms for the purpose of trade. The parties agree that:
a to the maximum extent permissible by law, any and all applicable consumer protection legislation does not apply to the supply of the Shopamine Service or these Terms; and
b it is fair and reasonable that the parties are bound by this clause 10.3.
10.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
a supplying the Shopamine Service again; and/or
b paying the costs of having the Shopamine Service supplied again.
11 LIABILITY
11.1 Our maximum aggregate liability under or in connection with these Terms or relating to the Service Fees and provision of the Shopamine Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Service Fees paid by you relating to the Service Fees in the previous Year (which in the first Year is deemed to be the total Service Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 11.1 includes the cap set out in clause 10.2a.
11.2 Neither Party is liable to the other under or in connection with these Terms or the Service Fees for any:
a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b consequential, indirect, incidental or special damage or loss of any kind.
11.3 Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
a personal injury or death;
b fraud or wilful misconduct; or
c a breach of clause 9.
11.4 Clause 11.2 does not apply to limit your liability:
a to pay the Service Fees and other potential fees;
b to fulfill all of your obligations under section 4.
c under the indemnity in clause 6.6; or
d for those matters stated in clause 11.3a to 11.3c.
11.5 Neither Party shall be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other Party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other Party or its Personnel.
11.6 Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with these Terms or the Shopamine Service.
11.7 Full versions and Beta versions
The Provider may be liable for normal operation of the Shopamine Service only for individual FULL versions of the Shopamine Service, and may not be held liable in any way for any BETA versions or Trial Period versions of the Shopamine Service. The Provider shall state on www.shopamine.com whether a particular version of functionality/add-on is available to Users as a FULL version or a BETA version.
If a particular version of the Shopamine Service is available to Users, such Users may use it solely at their own risk and should never rely on:
a the full functioning of each individual feature and/or multiple interoperable features;
b the stability of the operation of such Shopamine Service;
c having a normal or expected experience that does not include potentially critical software and system errors as well as bugs.
12 TERM, TERMINATION AND SUSPENSION
12.1 Unless terminated under this clause 12, these Terms and your right to access and use the Shopamine Service starts on the Start Date and continues until:
a you choose to delete your User account via the User administration interface or by submitting such request to support@shopamine.com, or
b it is terminated at any time by the Provider as a result of any material breach of these Terms,
c either you or the Provider become insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason, whereby such Party shall be required to inform the other Party with a notice.
12.2 You may also terminate this Agreement and your right to access and use the Shopamine Service in accordance with clause 7.6 (Increase of Fees and your right to terminate this Agreement).
12.3 Termination of this Agreement does not affect either Party’s rights and obligations that accrued before that termination.
12.4 On termination of this Agreement, you must pay all Service Fees for the provision of the Service prior to the termination.
12.5 No compensation is payable by us to you as a result of termination of this Agreement for whatever reason, and you shall not be entitled to a refund of any Service Fees that you have already paid or any funds that have been left in your account.
12.6 Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination of this Agreement but subject to clause 12.8, a Party must promptly return to the other Party or destroy all Confidential Information of the other Party that is in the first Party’s possession or control, as well as any Personal Data as per the Shopamine Data Processing Agreement.
12.7 At any time prior to one month after the date of termination, you may request:
a a copy of any Data stored using the Shopamine Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
b deletion of the Data stored using the Shopamine Service, in which case we must use reasonable efforts to promptly delete that Data.
For the avoidance of doubt, we are not required to comply with clause 12.8a to the extent that you have previously requested deletion of the Data.
12.8 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Shopamine Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
a undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
b used, or attempted to use, the Shopamine Service:
i for improper purposes; or
ii in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Shopamine Service;
c transmitted, inputted or stored any Data or used the Shopamine Service in a way, that breaches or may breach these Terms and specifically the clauses in section 4., or any third party right (including intellectual property rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
d otherwise materially breached these Terms.
12.9 Upon any termination or deletion of your User account, you hereby acknowledge and agree to destroy any and downloaded materials that relate to the Service or the Intellectual property of the Provider that are in your possession or in the possession of your Personnel or User Affiliates whether in electronic or printed format.
13 GENERAL
13.1 Neither Party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
13.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
13.4 Subject to providing the Shopamine Service and the Agreement you have entered into, you hereby acknowledge and agree, that we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
13.5 If we need to contact you, we may do so by email or by posting a notice on the www.shopamine.com website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing support@shopamine.com.
13.6 These Terms, and any dispute relating to these Terms, the Shopamine Data Processing Agreement or the Shopamine Service, are governed by and must be interpreted in accordance with the laws of the Republic of Slovenia. Each party submits to the exclusive jurisdiction of the Courts of the Republic of Slovenia in relation to any dispute connected with these Terms or the Shopamine Service.
13.7 Sections which, by their nature, are intended to survive termination of these Terms, including clauses in section 6, 8, 9, 11, and point 12.5 to and including points 12.9 and 13.6, continue in force.
13.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
13.9 Subject to clauses 2.1 and 7.6, any variation to these Terms may only be done by the Provider and does not require the signing of both parties.
13.10 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
13.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
Version: 1.0.
Published: 28. 11. 2022
Last update: 28. 11. 2022
Appoteka d.o.o.
