Thank you for choosing Sweet Upsell for Shopify. Sweet Upsell is a company focused on developing Shopify eCommerce applications. Sweet Upsell’s applications bring together marketing, eCommerce and the Shopify platform to help Shopify store owners grow their business. These Terms of Service (“Terms” or “Agreement”) apply to the applications and services (the “Apps”) provided by Sweet Upsell, owned and operated by Ecom Ladder and Phenomenal Enterprises Limited, Australian and New Zealand Limited liability companies. (“Sweet Upsell”). The terms and services of this Agreement and any guidelines, rules and policies incorporated herein form a legal and binding contract between you and Sweet Upsell.
BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS AND SERVICES OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE APPS OR RECEIVE SUCH SERVICES.
1. ACCEPTANCE, APPS AND RIGHTS OF ACCESS
2. This is an Agreement for access to and use of the Apps, and you are not granted a license to any software by this Agreement. You are only granted the right to use the Apps solely for the purposes described by Sweet Upsell. Our Apps require registration, particularly before accessing certain areas or functionality. When you do register with us, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”) and to maintain and promptly update the Registration Data to keep it accurate, current and complete.
3. Subject to your agreement and continuing compliance with these Terms, including, without limitation, meeting the applicable payment obligations, we grant you a personal, nonexclusive, nontransferable, non-sublicenseable, revocable, limited right to access and use our Apps solely for your own internal business purpose for one applicable Shopify Store per App. You agree not to use the Apps for any other purpose or more than one Shopify Store unless we have provided you with prior written authorization. We reserve any and all other rights in the Apps. Please contact us at email@example.com if you are interested in licensing the rights to our Apps for multiple Shopify Stores.
4. We reserve the right to modify or discontinue the Apps (or any part thereof) with or without notice at any time. You agree that we shall not be liable to you or any third party for any modification, suspension or discontinuance of the Apps, except as otherwise specified in any separate rules governing certain events or contents
5. The Apps are intended for the use of adults 18 years or older. You acknowledge and agree that you are not permitted to use the Apps, and you shall not use our website, if you are under the age of 18.
6. The Apps may contain data from one or more third party sources; to the extent that any such source is used, you will comply with all such third party license and data use requirements.
7. Certain application programming interfaces (“API”) may contain code, commonly referred to as open source software, which is distributed under any of the many known variations of open source license terms, including terms which allow the free distribution and modification of the relevant software’s source code and/or which require all distributors to make such source code freely available upon request, including any contributions or modifications made by such distributor (collectively, “Open Source Software”). To the extent that any API contains any Open Source Software, that element only is licensed to you pursuant to the relevant license terms of the applicable third party licensor and not pursuant to the licenses contained in this Agreement, and you accept and agree to be bound by such terms.
2. COMMENCEMENT DATE, FEES AND PAYMENT
1. You may purchase the right to access our Apps on a month-to-month or annual basis (“Subscription”) at the prices provided on our pricing page located at www.sweetupsell.com/pricing (“Fee”).
2. Payments will be billed to you in U.S. dollars, paid by you in U.S. currency and the date your account is debited or charged will be the “Commencement Date” of this Agreement.
3. Payment will be made by one of the following forms: a valid credit card, debit card, checking, savings or another payment option provided by us. You authorize us or our merchant account provider the right to charge such credit card or perform such debits from your account.
4. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse your use of the Apps. If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain
5. We will automatically renew your monthly or annual Subscription at the then-current rates, unless the Subscription is cancelled or terminated under this Agreement. a
6. Fees are paid in advance and will be billed on the first of the month for month-to-month Subscriptions and on the anniversary of the Commencement Date for annual Subscriptions (each such date, a “Billing Date”). You will be charged on each Billing Date for all outstanding Fees that have not previously been charged.
7. In the event that we are not able to recover the Subscription Fees on the Billing Date, we shall be entitled to terminate this Agreement and cease provision of the Apps. Charges not paid within 30 days after the applicable Billing Date will result in a charge of interest in the amount of 1.5% per month (or the highest rate of interest allowed by applicable law) on outstanding Fees, which interest shall be compounded on a monthly basis until the entire balance is paid in full.
8. All Fees are exclusive of applicable federal, state, local or other governmental sales, goods and services, or other taxes, fees or charges now in force or enacted in the future
9. Payment obligations are non-cancellable and Fees are non-refundable, except you may cancel your Subscription within 30 days from the Commencement Date by contacting us at firstname.lastname@example.org and requesting a refund and cancelling your use of our Apps.
3. PRIVACY AND SECURITY
2. When registering for any of the Apps, you may be required to select a Username and Password that will be used to access your account. You are responsible for any use of your Password, whether by you or others. You agree to (i) keep your Password confidential and not share it with anyone else; and (ii) immediately notify us of any unauthorized use of your Password or account or any other breach of security. Sweet Upsell will not be liable for any loss or damage arising from your failure to comply with this Section
3. You authorize us to act on instructions received through use of your Password, and that we may, but are not obligated to, deny access or block any transaction made through use of your Password without prior notice.
4. USER CONDUCT, OBLIGATIONS AND REPRESENTATIONS
1. By using the Apps, it is your responsibility to know, understand and abide by our rules of conduct. These rules are not meant to be exhaustive, and we reserve the right to determine what types of conduct we consider to be inappropriate use of our Apps and to take such measures as we see fit. We reserve the right to add to or amend this list of rules at any time.
2. You agree that you will not use the Apps to or make available content that: (i) harasses, abuses, defames, or threatens others; (ii) contains profanity or obscene or otherwise objectionable content; (iii) contains any other party’s intellectual property unless you have the right to do so; (iv) violate the privacy, publicity or other personal rights of others; (v) contains software viruses or any other computer code, files or programs that can interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) interfere with the Apps or servers or networks connected to the Apps, or disobey any requirements of networks connected to the Apps; (vii) violate any applicable local, state, national or international law or regulation; (viii) make available, distribute, re-upload or share any video, photos, downloads or other content provided by Sweet Upsell or through the Apps to any other website, streaming technology, peer-to-peer software, or similarly unauthorized distribution channel unless expressly authorized to do so by Sweet Upsell; (ix) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising, or in any way making up, any part of the Apps; (x) access any content not intended for your use or log onto a server or account that you are not authorized to access; or (xi) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
3. Violation of the rules of conduct may result in the immediate removal of your content from the Apps and/or the termination of your account(s).
4. You understand that all postings and content submitted to any of the Apps by users (“User Materials”), whether privately transmitted or made publicly available, are the sole responsibility of the person from which such User Materials originated. You are entirely responsible for all User Materials that you make available via the Apps.
5. You acknowledge that we may or may not pre-screen User Materials, but that we and our designees have the right (but not the obligation) in our sole discretion to remove any User Materials. You understand that by using the Apps, you may be exposed to User Materials that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Materials. You further acknowledge and agree that you will not rely on any content available on or through the Apps
6. With respect to User Materials you directly submit or make available on the Apps, you grant Sweet Upsell an irrevocable, fully sub- licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Materials (in whole or in part) and to incorporate such User Materials into other works in any format or medium now known or later developed.
7. The Apps are protected by copyright, trade secret, and other intellectual property laws as further described below. You agree not to use, nor permit any third party to use, the Apps or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not: (i) provide access to or give any part of the Apps to any third party; (ii) reproduce, modify, copy, deconstruct, sell, trade or resell the Apps; (iii) make the Apps available on any file-sharing or application hosting service; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Apps (or any source code relating thereto); (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Apps (or any source code relating thereto); (vi) remove, obscure, or alter any proprietary rights notices affixed to or contained within the Apps; (vii) assign, sell, rent, lease, sublicense, lend, transfer, resell, or distribute any part of the Apps (or any source code relating thereto) to any third party or use the services on behalf of any third party unless otherwise agreed to in writing by us in our sole discretion; (viii) access all or any part of the apps in order to build a product or service which competes with the Apps including, without limitation, the software; create Internet links to or frame or mirror any Apps or any App content; or (ix) display or reference any part of the App, software or any Sweet Upsell name, trademark or logo, without our prior written consent in each instance.
5. SUPPORT SERVICES
1. Support is included in your Subscription Fee. Phone support is available [8AM to 8PM Eastern Time, Monday through Friday, excluding US national holidays.] We accept webform support questions 24 Hours per Day x 7 Days per Week at email@example.comWebform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
2. We try to make the Apps available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
1. You agree to defend, indemnify and hold harmless Sweet Upsell, its parent company, affiliates, subsidiaries, employees, contractors, content providers, and assignees and their respective officers, directors, employees and agents from and against any and all liabilities, claims, actions, demands, damages, costs, losses and expenses (including reasonable attorney’s fees) made by any third party due to or arising out of your use of the Apps, any transaction resulting from use of the Apps, your connection to the Apps, your violation of these Terms, your submission, posting, or transmission of User Materials to the Apps, and/or your violation of any rights of another.
7. TERM AND TERMINATION
1. This Agreement shall commence on the Commencement Date and shall continue per the Subscription term until terminated by either party giving at least 10 days’ prior written notice of termination
2. Either party may with immediate effect terminate this Agreement by written notice to the other party (i) if the other party breaches any provision of this Agreement (including non-payment of Fees) and such breach is not cured within ten (10) days after written notice thereof; or (ii) if the other party commits any breach that is unable to be cured or repeats any breach as has previously been the subject of a notice under paragraph (i) above.
3. You agree that we may, in our sole discretion and without notice, immediately terminate your access to the Apps. Termination of your account(s) may include (i) removal of access to all offerings within the Apps, (ii) at our sole discretion, the deletion of all of your account information related to the Apps, User Materials, and other content associated with your account(s) related to the Apps (or any part thereof), and (iii) barring your further use of the Apps.
4. Upon termination of this Agreement:
1. You shall promptly pay us through the end of the applicable calendar month within which the Apps were provided following the effective date of termination;
2. You shall immediately discontinue use of the Apps and uninstall and discontinue use of any software affected by such termination and promptly certify to us that you have discontinued use of and returned or destroyed all copies of the affected software then in your possession, including all documentation related thereto; and
3. those provisions of this Agreement that by their terms are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect.
5. We try to make the Apps available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
1. The Apps may provide links to third party websites (“sites”) or resources. Because Sweet Upsell has no control over such sites and resources, you acknowledge and agree that Sweet Upsell is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Sweet Upsell shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
9. PROPRIETARY RIGHTS AND IP
1. All title, ownership and intellectual property rights in and to the materials contained in the Apps are owned by Sweet Upsell or its licensors. Unless noted otherwise, all content, software, and other materials made available or through the website are protected by copyright, trademark and other applicable intellectual property law and may not be used except as permitted in these Terms.
2. Nothing contained on or in any of our Apps, including our website, should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed without our written permission or any such third party that may own the trademarks. Your misuse of our trademarks displayed on the Apps, or any other content on the Apps, except as provided in these Terms, is strictly prohibited. You acknowledge and agree that we will enforce our intellectual property rights to the fullest extent permitted by law.
3. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others.
1. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with notice containing the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the App; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
2. Notice of claims of copyright or other intellectual property infringement can be reached in the following ways: via email firstname.lastname@example.org or written notice mailed to: 982 Main St. Suite 4-315, Fishkill, NY 12524.
10. DISCLAIMER OF WARRANTIES
1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPS IS AT YOUR SOLE RISK. THE APPS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SWEET UPSELL EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. SWEET UPSELL ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE APPS IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SWEET UPSELL OR THROUGH OR FROM THE APPS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION ON LIABILITY
1. YOU UNDERSTAND AND AGREE THAT SWEET UPSELL SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SWEET UPSELL HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE APPS; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APPS; OR (IV) ANY OTHER MATTER RELATING TO THE APPS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. WE AND OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE APPS TO YOU.
12. EXCLUSIONS AND LIMITATIONS
1. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWEET UPSELL’S TOTAL CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU ACTUALLY RECEIVED BY SWEET UPSELL FOR THE 3 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
13. GENERAL INFORMATION
1. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
2. Notice. Sweet Upsell will provide you with notices, including those regarding changes to the Terms, by e-mail, regular mail, or postings on the Apps or our website
3. Choice of Law and Dispute Resolution.
1. These Terms are governed by laws of the State of New York, without regard to its conflict of laws principles. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts within New York, New York, for any claims arising out of or relating to your use of the website or these Apps. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms or your use of the Apps offered by Sweet Upsell (“Dispute”), any dispute relating in any way to your use of or access to any of the Apps shall be submitted to confidential arbitration in New York, except that, to the extent you have in any manner violated or threatened to violate Sweet Upsell’s intellectual property rights, Sweet Upsell may seek injunctive or other appropriate relief in any state or federal court in the state of New York, and you consent to exclusive jurisdiction and venue in such courts.
2. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no dispute under this Agreement shall be joined to a dispute involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
4. Attorney Fees. If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover reasonable attorney fees and any damages or other relief we may be awarded.
5. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Apps or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
7. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
8. Publicity. You grant us the right to add your name and company logo to our customer list and website.
9. Force Majeure. Neither party will be liable to the other party for its in ability or failure to perform, or delay in performing, any obligations under this Agreement caused by a Force Majeure Event. The party affected by the Force Majeure Event will notify the other party once its performance of its obligations under this Agreement is no longer prevented due to the Force Majeure Event. Notwithstanding anything to the contrary herein, a Force Majeure Event shall not include the failure to make timely payments when due. A “Force Majeure Event“ includes any act, event, non-happening, omission or accident beyond reasonable control and includes, without limitation, the following: the acts, decrees, legislation, orders, regulations or restrictions of any government strikes, lock-outs, riot, invasion, terrorist attack, war, fire, explosion, storm, flood, earthquake, or other natural disaster.
10. Waiver. Any omission to exercise, or delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of that, or any other, right or remedy. The waiver by any party to this Agreement of any of its rights or remedies arising under this Agreement or by law shall not constitute a continuing waiver of that right or remedy or a waiver of any other right or remedy.
11. Severability. If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired. If any provision of this Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
12. Independent Contractors; No Partnership. Nothing in this Agreement is intended to or shall be construed as establishing or implying any partnership, joint venture or agency of any kind between the parties other than that of independent contractors, and nothing in this Agreement shall be deemed to constitute any party as the agent of any other party. No party shall have any authority to act in the name of, or on behalf of, or otherwise to commit or bind any other party in any way whatsoever (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13. Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior written consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14. Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
15. Entire Agreement. These Terms constitute the entire agreement between you and Sweet Upsell with respect to your use of the Apps.