This Software as a Service Agreement together with such additional terms which specifically apply to some of our services and features such as the data processing agreement “DPA” the Service Level Agreement “SLA” and the Acceptable Use Policy (the “AUP”, and collectively the “Agreement”) governs your engagement with Metro One Telecommunication, Ltd and its affiliated companies, including subsidiaries. (“Shelfy”,”us”, “we” or “our”), and your use of the Services and both terms are defined below.
This Agreement is legally binding and enforceable between Shelfy, and you, the person signing up for the Service by opening a Merchant Account (including by its authorized employees) will be the contracting party and store owner (“Store Owner”, “Merchant” or “you”). Merchant and Shelfy shall each be referred individually to as a “party” and collectively as the “parties”.
ACCEPTANCE OF THE TERMS: By signing up, clicking on “I Agree”, filling in your information, or by using our Services (as defined below) you acknowledge that you have read, understood, and agreed to this Agreement. You agree to be bound by this Agreement and to comply with all applicable laws and regulations regarding your use of the Services. IF YOU DO NOT AGREE TO ALL OR PART OF THIS AGREEMENT HEREIN PLEASE DO NOT, CREATE AN ACCOUNT, OR USE THE SERVICES IN ANY MANNER.
- Registration and Account
- In order to use the Services, you will register and create an account (“Merchant Account”). You hereby represent and warrant that you will provide accurate and complete information. In the event of untrue or inaccurate information, Shelfy may suspend or terminate the Merchant Account.
- The person who registered and created the Merchant Account will be the person who is authorized to use any correspondence we may provide to the Merchant in connection with the Service. If you are signing up for the Services on behalf of your employer, your employer shall be the Store Owner. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Agreement.
- During the registration process, you will be required to provide us with your permission to contact your web store’s e-Commerce platform (such as Shopify, WooCommerce, Big commerce, etc “e-Commerce Platform”) and receive information regarding your e-Commerce Platform account (such as your registration details, store security token and etc.) and your web store content through APIs to such e-Commerce Platform (such as products, prices, text, graphics and etc.).
- Further, during the process of registering, you will designate personal and exclusive user names and passwords to access the Merchant Account. You are solely and fully responsible for maintaining the confidentiality of the password and username of your Merchant Account and for all activities that occur under the Merchant Account. Unauthorized access or use of the Merchant Account or Services must be immediately reported to Shelfy. You may not assign or transfer your rights or delegate your duties under the Merchant Account, including your user name and password, without the prior written consent of Shelfy. You undertake to immediately notify Shelfy if you become aware of unauthorized use of your user name and password.
- You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open a Merchant Account.
- You are responsible for keeping your password secure. Shelfy cannot and will not be liable for any loss or damage from your failure to maintain the security of your Merchant Account and password.
- A breach or violation of any term in the Agreement, as determined in the sole discretion of Shelfy may result in an immediate termination of your Services.
- Scope of Service
- Subject to the terms herein, Shelfy may provide the Merchant with an online platform (“Platform”) which enables the Merchant: (1) to create, build and operate its own mobile store (“Mobile Store”); (2) to add the data to the Mobile Store from Ecommerce Platforms and optimize sales; (3) to display, offer and sell its products and goods (“Product”) to end-users; (4) to choose the applicable scope of services, subscriptions, plans and features to optimize and increase sales; (5) to optimize, monitor and receive insights on the Mobile Store activates and sales through the dashboard; and (6) to use additional features, tools and services that may be offered or provided through the Platform (collectively: “Services”).
- Subject to the terms herein, Shelfy hereby grant you with a limited, revocable, non-exclusive license to use the Services solely during the Term (as defined below) and solely for the purpose of the Services (“License”).
- Shelfy, at its sole discretion, is entitled to: (i) determine the features, settings or other tools which are available as part of the Service; and (ii) modify, correct, amend, update, enhance, improve, remove, replace or make any other changes to, or discontinue, or cease, temporarily or permanently, the Service, without liability to you.
- We may, at any time and at our sole discretion, suspend, disable access to or remove your Mobile Store and/or any Products – whether or not incorporated, published with or made a part of your Mobile Store at such time, without any liability to you or to any end-users, including for any data loss resulted therefrom.
- Your Mobile Store can only be associated with one Store Owner; however, each Store Owner may have multiple Mobile Stores.
- You acknowledge that you are responsible for the creation and operation of your Mobile Store.
- You acknowledge that Shelfy is not a marketplace and any contract of sale through your Mobile Store is directly between you and the buyer.
- You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Merchant Account (“Content”).
- In the event of a dispute regarding Merchant Account ownership, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government-issued photo ID, the last four digits of the credit card on file, your status as an employee of an entity, etc.
- We retain the right to determine, in our sole judgment, rightful Merchant Account ownership and to terminate your Merchant Account if we determine that you are not the rightful Store Owner of such Merchant Account. If we are unable to reasonably determine the rightful Store Owner, without prejudice to our other rights and remedies, we reserve the right to temporarily disable a Merchant Account until resolution has been determined between the disputing parties and to provide your contact details to the other disputing party in order to help you to try to resolve the dispute.
- Upon completion of registration for the Service, Shelfy may create a Google Developer and Apple Developer Account (“App store Accounts”) on your behalf, using your email address. These App store Accounts are needed to launch your application and make it available for customers to download. You acknowledge that these App store Accounts will be your default developer accounts and that it is your sole responsibility as the Merchant to activate and maintain these accounts and agree to be bound by such App store Accounts‘ terms and conditions and privacy policies.
- Restrictions of Use
- You are solely responsible for any and all statements and promises you make and for all assistance, warranty, and support regarding the Products, and shall provide true contact information on your Mobile Store for any questions, complaints, or claims; and
- You may not offer or sell any Products, or provide any information, Content or material regarding Products, which may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; which are prohibited for sale, distribution or use; or which otherwise fail to comply with any applicable laws, including with respect to consumer rights, intellectual property or privacy rights, product safety, trade regulations and sanctions, support, maintenance and export;
- You hereby undertake not to, and not to allow others to: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) take any action that imposes, or may impose at Shelfy’s sole discretion an unreasonable or disproportionately large load on the Services infrastructure; (iii) sell, license (or sub-license), lease, assign, transfer, pledge, or share rights under this Agreement with any third party except as permitted hereunder; (iv) disassemble, decompile, reverse engineer or attempt to discover the Services’ source code or underlying algorithms; (v) upload invalid data, viruses, worms, malicious code or other software agents through the Services; (vi) interfere with the proper working or security measures of the Services; (vii) bypass the measures Shelfy may use to prevent or restrict access to the Services; (ix) use the Services for any illegal or unauthorized purpose, or could give rise to civil liability or other lawsuit; (xi) modify the Services, or insert any code or product, or in any other way manipulate the Services in any way or create any derivative works of the Services; (xiii) use the Services in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (xiv) use the Services in a manner that violate any laws in your jurisdiction (including but not limited to copyright laws) and the laws applicable to you in the end users’ jurisdiction during your use .
- Furthermore, you undertake not to, and not to allow others to use, upload, transfer, post or make available through Services any Content that involves, facilitates, advocates or promotes one or more of the following: (i) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (iii) illegal gambling; (iv) illegal activities; (v) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of law; (vi) a conflict or violation of any law or any intellectual property or other rights of any person or entity (“Prohibited Materials”).
- Failure to comply with the provisions set forth above may result herein (at Shelfy’s sole discretion) in the termination or suspension of access to the Service (or any part or feature thereof) as well as immediate termination of this Agreement, without derogating from any other remedy Shelfy is entitled to under this Agreement or applicable law.
- Representations and Warranties
- You represent and warrant that: (i) you have full legal authority to be engaged by this Agreement; (ii) you own or have the legal rights in the Products displayed, offered and sold in connection with the Services and any Content used by you through the Services or uploaded, transferred, posted or made available through the Services. It is hereby agreed that you shall be fully and solely liable for any such Products and Content, and whether manufactured, produced, created or provided by you or by any third party or otherwise created by Shelfy on your behalf; (iii) Merchant’s Products and Content are and shall be at all time compliant with all applicable laws, rules, regulations, policies and industry standards. Among others, you will be responsible to clearly and conspicuously identify or label all Products and Content provided through the Services in accordance with all applicable laws and regulations; (iv) Merchant’s Products and Content do not infringe upon any Intellectual Property Right or privacy rights of any third party, do not include or rely on any Prohibited Materials.
- Merchant further represents and warrants that it will comply with all applicable laws, rules and regulations in its use of the Service and its performance of obligations under the Agreement.
- Any use of Content by the Merchant or otherwise Content made available through the Services, and even if such cases where Content was obtained through third party sources or a database offered by Shelfy, shall be in compliance with applicable laws, and specifically shall not breach any third party’s intellectual property rights or copyrights. The Merchant acknowledge that use of certain Content may require an applicable license to be obtained by the Merchant and it is Merchant’s sole responsibility to determine which license is needed, and to comply with any third party’s terms or requirements for the use of such Content. It is hereby clarified that the use of Content through the Services might be considered as commercial use and accordingly, will require an applicable license. The above shall not be considered as legal or professional advice on behalf of Shelfy.
- Merchant further represents and warrants that any Product displayed, offered or sold through the Services or otherwise made available through the Services, and even if such Product was purchased or obtained from a third party, shall be in compliance with applicable laws, and specifically shall not breach any third party’s property rights (including intellectual property rights or copyrights).
- Merchant acknowledges that this engagement is nonexclusive and nothing in this Agreement will in any way restrict Shelfy’s right to engage others to render the same or similar services
- Shelfy represents and warrants that: (i) it has full legal authority to be engaged by this Agreement; (ii) it owns or has the legal rights in the Services; and (iii) it will provide the Services in a timely and professional manner.
- Recurring Fees
- You will pay the Fees applicable to the subscription you choose (“Subscription Fees”) (and any fees relating to additional features or services you may choose to purchase or use (“Additional Fees”). Together, the Subscription Fees and the Additional Fees are referred to as the “Fees”.
- The Fees may be paid directly to us or indirectly through the e-Commerce Platform.
- All amounts payable under this Agreement are exclusive of all taxes including, among others, sales, value-added, and any other taxes, charges, levies, and duties.
- Without derogating from the foregoing, Shelfy reserves the right to change prices of the Services, from time to time, subject to a 30-day prior written notice, as applicable to your subscription (i.e., 30 days prior to the automatic renewal).
- If the Merchant is late on payment for the Services, Shelfy may suspend the Services or terminate the Agreement for breach pursuant to Section 6 below.
- Merchants are responsible for all applicable Taxes that arise from or as a result of any sale on your Mobile Store In the event that the Fees will be paid directly to us:
- You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. Shelfy will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and Shelfy will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
- Usage Fees are paid in advance and will be billed in 30-day intervals (each such date, a “Billing Date”). You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Store Owner via the email provided. As well, an invoice will appear on the Merchant Account page of your Mobile Store’s administration console or be available on your e-Commerce Platform provider’s invoice.
- If we are not able to process payment of Fees using an Authorized Payment Method, we will make a second attempt to process payment using any Authorized Payment Method 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Merchant Account and the Services. Your Merchant Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Merchant Account or your Mobile Storefront during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, Shelfy reserves the right to terminate your Account.
- Subscription Auto-Renewals
- In order to ensure that you do not experience any interruption or loss of services, certain Services include an automatic renewal option by default, such Services will automatically renew upon the end of the applicable subscription period, for a renewal period equal in time to the original subscription period (excluding extended periods) and, unless otherwise notified to you, at the same price (subject to applicable taxes changes and excluding any discount or other promotional offer provided for the first period) (“Renewing Services”). For example, if the original subscription period for a Service is one year, each of its renewal periods (where applicable) will be for one year. If your Renewing Service is subject to a yearly or multiple-year subscription period, we will endeavor to provide you notice prior to the renewal of such Service at least thirty (30) days in advance of the renewal date.
- By entering into this Agreement and by purchasing a Renewing Service, you acknowledge and agree that the Renewing Service shall automatically renew in accordance with the above terms.
- Free Trials
- Following the registration, you might be entitled to receive a free trial of certain Services (“Free Trial”). The Free Trial lasts one month or as otherwise specified when you register to the Free Trial Services and is intended as a way to allow users to try our Services. Please note that a Merchant Account can only benefit from one Free Trial period, regardless of the number of Services you have purchased or subscribed to.
- When you sign up for a Free Trial, we may require you to provide your payment details to start the Free Trial. By providing such details you agree that we may automatically begin charging you for the Services on the first day following the end of the Free Trial on a recurring periodic basis in accordance with the subscription period you have selected when you sign up for a Free Trial. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE SERVICES BEFORE THE END OF THE FREE TRIAL, AS DETAILED IN SECTION 8.
- In the event that you wish to use the Services again, you should sign up again. In this case, the price of the Services will apply.
- Beta Services
- From time to time, Shelfy may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services are not part of the Services, and Beta Services may be subject to additional terms and conditions, which Shelfy will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Shelfy Confidential Information and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without Shelfy’s prior written consent. Shelfy makes no representations or warranties that the Beta Services will function. Shelfy may discontinue the Beta Services at any time at its sole discretion. Shelfy will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Shelfy may change or not release a final or commercial version of a Beta Service at our sole discretion.
- Cancel a Subscription
- In order to cancel a subscription, please send us an email at email@example.com., at least 5 business days before your next payment date. The subscription charges will stop after the last billing period.
- Merchant acknowledges that subscription Fees are non-refundable whether or not the Services and the Platform are actively used by the Merchant.
- Support Services
- Our Services may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We reserve the right to discontinue some or all of our Services at our sole discretion, including certain features and the support for certain devices and platforms. Events beyond our control may affect our Services, such as events in nature and other force majeure events.
- We will provide support services to the Merchant during the term of this Agreement in accordance with the Service Level Agreement (SLA), which is available here. Support inquiries shall be directed to: firstname.lastname@example.org.
- Term and Termination
- The term of this Agreement will commence on the date of your completed registration for use of a Service and continue until terminated by us or by you, as provided below (the “Term”).
- You may cancel your Merchant Account and terminate the Agreement at any time by contacting our support at: email@example.com. and then following the specific instructions indicated to you in Shelfy’s response.
- Without limiting any other remedies, we may suspend or terminate your Merchant Account or the Agreement for any reason, without notice, and at any time (unless otherwise required by law). Termination of the Agreement will be without prejudice to any rights or obligations which arose prior to the date of termination.
- Upon termination of the Services by either party for any reason:
- Shelfy will cease providing you with the Services and you will no longer be able to access your Merchant Account;
- you will not be entitled to any refunds of any Fees, pro-rata or otherwise;
- any outstanding balance owed to Shelfy for your use of the Services through the effective date of such termination will immediately become due and payable in full;
- all rights and licenses granted under this Agreement shall immediately terminate and you shall cease use of the Services.
- your Mobile Store will be taken offline.
- If there are any outstanding Fees owed by you at the date of termination of the Service, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
- Third party Integrators
- Shelfy may from time to time recommend, provide you with access to, or enable third-party software, Apps, products, services, or website links (collectively, “Integrations”) for your consideration or use. Such Integrations are made available only as a convenience, and your purchase, access, or use of any such Integration is solely between you and the applicable third-party Integrations provider (“Integrator”). In addition to this Agreement, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, such Integrators.
- Any use by you of Integrations is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Integrations before using them. In some instances, Shelfy may receive a revenue share from Integrators that Shelfy recommends to you or that you otherwise engage through your use of the Services. We do not provide any warranties or make representations to you with respect to such Integrator, Integrations, and any other service provided by the Integrator. You acknowledge that Shelfy has no control over any such Integration and shall not be responsible or liable to you or to anyone else for the use of any such Integration. The availability of such integrations or enabling of such Integrations with our Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Shelfy. Shelfy does not guarantee the availability of such Integrations and you acknowledge that Shelfy may disable access to any such Integration at any time in its sole discretion and without notice to you. Shelfy is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any such Integration. Shelfy strongly recommends that you seek specialist advice before using or relying on such Integrations, to ensure they will meet your needs. If you install or enable an Integration for use with our Services, you grant us permission to allow the applicable Integrator to access your data and other content and to take any other actions as required for the interoperation of the Integration with our Services, and any exchange of data or other content or other interaction between you and the Integrator is solely between you and such Integrator. Shelfy is not responsible for any disclosure, modification, or deletion of your data or other content, or for any corresponding losses or damages, you may suffer, as a result of access by such Integrator to your data or other content.
- You agree to indemnify and hold us and our respective affiliates, officers, directors, shareholders, or representatives harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of the Integrations and any other service provided by an Integrator or your relationship with such Integrator.
- Intellectual Property Rights
- The Intellectual Property Rights and all other rights, title and interest of any nature in and to the Services or any related documentation made available by or on behalf of Shelfy hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, and excluding the Content) are and shall remain the exclusive property of Shelfy and its licensors (as applicable). For the purpose of this Agreement “Intellectual Property Rights” shall mean all intellectual property rights of every kind and description, including without limitation: (i) rights in or to trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, (ii) patents and patent applications, (iii) rights in or to copyrights, whether or not registered, (iv) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, (v) rights in software and computer code (whether in source code, object code or any other form) and (vi) all applications and registrations of any of the foregoing.
- If Shelfy receives any feedback (e.g., questions, comments, suggestions etc.) regarding any of the Services (the “Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Shelfy and to the extent required by applicable law then you hereby irrevocably transfer and assign to Shelfy all Intellectual Property Rights it has in such Feedback and waive any and all moral rights that you may have in respect thereto.
- To the extent applicable, you grant Shelfy the right during the Term to use the Content in accordance with the terms hereof, and you grant Shelfy the right to use Merchant’s name and logo when referring to Shelfy’s Merchants in all Shelfy marketing materials.
- Nothing in this Agreement shall be construed as transferring any right, title or interest to you or any third party, unless explicitly stated hereunder. Shelfy and its licensors reserve any and all rights not expressly granted in this Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of this Agreement for whatever reason.
You shall indemnify, defend and hold harmless, Shelfy and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Parties”) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees (“Liabilities”) incurred by Indemnified Parties as a result of or arising out of a third party claim arising from: (i) your breach of this Agreement, including, among others, any representations or warranties made by you hereunder; (ii) your breach of any of your confidentiality or data protection obligations under this Agreement, including, among others, the Data Processing Agreement attached hereto as Exhibit A; (iii) your gross negligence, willful misconduct or fraud, or your employees, agents, or subcontractors; and (iv) your breach or violation of any law or the rights of a third party; by you.
- Limitation of Liability and Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, CONTENT (IF APPLICABLE AND PROVIDED BY SHELFY) AND ANY RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. SHELFY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND MAKES NO REPRESENTATION NOR DOES IT EXTEND ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SERVICES AND CONTENT, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SHELFY ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES; AND (IV) ANY LOSS OF DATA OR CONTENT. IN NO EVENT SHALL SHELFY BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF THE SERVICES, EVEN IF SHELFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SHELFY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO SHELFY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING SUCH LIABILITY.
In the context of the relationship under this Agreement, either party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (i) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information: (ii) was received by Receiving Party from any third party without restrictions; (iii) is publicly and generally available, free of confidentiality restrictions; or (iv) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees and contractors with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. The non-disclosure and non-use obligations set forth in this Section 10 shall survive the termination or expiration of this Agreement for a period of 5 years.
- Privacy, Data Protection & End User Disclosure and Consent
- When using the Services, you may grant access to data collection from end users as needed for the purpose of the Services. Hence, to the extent applicable to the parties, the parties shall comply with the terms and condition of the Data Processing Agreement attached hereto as Exhibit A.
Shelfy reserves the right to modify, correct, or amend this Agreement at any time. The most current version of this Agreement will always be posted and any changes will be indicated under the “Last Updated” date above. It is your responsibility to ensure that you are familiar with the most current version of this Agreement. Your continued use of the Services following an updated version of this Agreement was posted, shall constitute your express agreement to be bound by the updated terms. In the event that, subject to Shelfy’s sole discretion, substantial changes were made, Shelfy may send or otherwise post an applicable notification.
- Governing Law and Jurisdiction. This Agreement and any claim, controversy, or dispute arising under, related to, or otherwise in connection with this Agreement shall be interpreted, construed, and enforced in accordance with the laws of Israel, applied without giving effect to any conflicts of law principles. The Parties agree that any lawsuit that may be brought with respect to this Agreement shall be brought and tried exclusively in the competent courts located within Tel Aviv, Israel.
- Relationship of the Parties. Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.
- Assignment. This Agreement may not be assigned or transferred by you without the prior written consent of Shelfy.
- Force Majeure. Neither party shall be liable for any delay or failure to perform if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond the non-performing Party’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God, and/or inclement weather, which the non-performing party is unable to prevent by the exercise of reasonable due diligence, and provided that the non-performing party uses its best efforts to overcome any such circumstances.
- Entire Agreement. This Agreement, including all exhibits, contains the entire agreement of the parties, and supersedes any prior oral or written agreements or understanding between the parties.
- Severability. Should any one or more of the provisions of this Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- Waiver. A delay or omission by either party to exercise any right under this Agreement shall not be construed to be a waiver of such right. A waiver by either party of any of the performance provisions of this Agreement shall not be construed to be a waiver of any succeeding performance or breach.
Exhibit A – Data Processing Addendum
This Data Processing Addendum (“DPA”) only applies to the extent that: (i) The EU Data Protection Law applies to the Processing of Personal Data (as such terms are defined below) under the Agreement including in the event that: (a) the Processing is in the context of the activities of an establishment of either party in the European Economic Area (“EEA”); or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA by or on behalf of a party; or (ii) the Personal Data relates to California Consumers, as defined below. Furthermore, this DPA shall only apply to the Processing of Personal Data and shall not apply to information a party may collect or provide to the other party which does not constitute or contain Personal Data, such as anonymized, aggregated or statistic data. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.
- “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. Seq.
- “Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
- “Controller“, “Processor“, “Data Subject“, “Personal Data“, “Processing” (and “Process“), “Personal Data Breach” and “Special Categories of Personal Data” shall all have the meanings given to them in EU Data Protection Law. The terms “Business”, “Business Purpose”, “Consumer”, “California Consumer”, “Service Provider” and “Sell” shall have the same meaning as ascribed to them in the CCPA. “Data Subject” shall also mean and refer to “Consumer”, as such terms defined in the CCPA. “Personal Data” shall also mean and refer to “Personal Information”, as such terms defined in the CCPA.
- “EU Data Protection Law” means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); and (iv) any legislation replacing or updating any of the foregoing.
- “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other party’s Personal Data will comprise a Security Incident.
- “Users Data” means any and all end users’ Personal Data Processed through the Services by Shelfy on behalf of Merchant.
- RELATIONSHIP OF THE PARTIES
- REPRESENTATIONS AND WARRANTIES
The Merchant represents and warrants that: (a) its Processing instructions shall comply with applicable Data Protection Law, and the Merchant acknowledges that, taking into account the nature of the Processing, Shelfy is not in a position to determine whether the Merchant’s instructions infringe applicable Data Protection Law; and (b) it will comply with EU Data Protection Law, specifically with regards to the lawful basis principal for Processing Personal Data, as well as the CCPA provisions. Shelfy represents and warrants that it shall process Personal Data, as set forth under Article 28(3) of the GDPR, on behalf of the Merchant, solely for the purpose of providing the Service, and for the pursuit of a Business Purpose as set forth under the CCPA, all in accordance with Merchant’s written instructions including the Agreement and this DPA. Notwithstanding the above, in the event Shelfy is required under applicable laws to Process Users Data other than as instructed by Merchant, Shelfy shall make its best efforts to inform the Merchant of such requirement prior to Processing such Company Data, unless prohibited under applicable law.
- PROCESSING OF PERSONAL DATA AND COMPLIANCE WITH DATA PROTECTION LAW
- The Merchant represents and warrants that Special Categories of data shall not be Processed or shared in connection with the performance of Shelfy obligations under the Agreement, unless agreed in writing by Shelfy and shared in accordance with applicable Data Protection Law.
- Unless otherwise agreed to in writing by the Parties, the Merchant shall not share any Personal Data with Shelfy that contains Personal Data relating to children under 16 years old.
- As between the Parties, the Merchant undertakes, accepts and agrees that Shelfy and the Data Subject do not have a direct relationship. The Merchant shall ensure that it obtains a proper affirmative act of consent from Data Subjects in the event required in accordance with applicable Data Protection Law and other relevant notices and privacy requirements in order to Process Personal Data as set out herein and for the transfer of Personal Data, where applicable.
- RIGHTS OF DATA SUBJECT AND PARTIES COOPERATION OBLIGATIONS
It is agreed that where Shelfy receives a request from a Data Subject or an applicable authority in respect of Personal Data Processed by Shelfy, where relevant, Shelfy will direct the Data Subject or the applicable authority to the Merchant in order to enable the Merchant to respond directly to the Data Subject’s or the applicable authority’s request, unless otherwise required under applicable laws. Both parties shall provide each other with commercially reasonable cooperation and assistance in relation to the handling of a Data Subject’s or applicable authority’s request, to the extent permitted under Data Protection Law.
- NO SALE OF PERSONAL INFORMATION
It is hereby agreed that any share of Personal Data between the parties is made solely for fulfilling a Business Purpose and Shelfy does not receive or process any Personal Data in in consideration for the services. Thus, such Processing of Personal Data shall not be considered as a Sell.
The Merchant acknowledges that Shelfy may transfer Personal Data to and otherwise interact with third party data processors (“Sub-Processor”). The Merchant hereby, authorizes Shelfy to engage and appoint such Sub-Processors to Process Personal Data, as well as permits each Sub-Processor to appoint a Sub-Processor on its behalf. Shelfy may, continue to use those Sub-Processors already engaged by Shelfy and Shelfy may, engage an additional or replace an existing Sub-Processor to process Personal Data provided that it notifies the Merchant of its intention to do so. Shelfy shall, where it engages any Sub-Processor, impose, through a legally binding contract between Shelfy and the Sub-Processor, data protection obligations no less onerous than those set out in this DPA on the Sub-Processor. Shelfy shall ensure that such contract will require the Sub-Processor to provide sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of Data Protection Laws.
- TECHNICAL AND ORGANIZATIONAL MEASURES
Shelfy hereby confirms that it has implemented and will maintain appropriate physical, technical and organizational measures to protect the Users Data as required under Data Protection Laws to ensure lawful processing of Users Data and safeguard Users Data from unauthorized, unlawful or accidental processing, access, disclosure, loss, alteration or destruction.
- SECURITY INCIDENT
Shelfy will notify the Merchant upon becoming aware of any confirmed Security Incident involving the Users Data in Shelfy’s possession or control. Shelfy’s notification regarding or response to a Security Incident under this Section 9 shall not be construed as an acknowledgment by Shelfy of any fault or liability with respect to the Security Incident. Shelfy will, in connection with any Security Incident affecting the Users Data: (i) take such steps as are necessary to contain, remediate, minimize any effects of and investigate any Security Incident and to identify its cause; (ii) co-operate with the Merchant and provide the Merchant with such assistance and information as it may reasonably require in connection with the containment, investigation, remediation or mitigation of the Security Incident; and (iii) notify the Merchant in writing of any request, inspection, audit or investigation by a supervisory authority or other authority.
- AUDIT RIGHTS
To the extent required under applicable law, Shelfy shall make available, solely upon prior written notice and no more than once per year, to a reputable auditor nominated by the Merchant, information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor solely in relation to the Processing of the Users Data (“Audit”) in accordance with the terms and conditions hereunder. The auditor shall be subject to the terms of this DPA and standard confidentiality obligations (including towards third parties). Shelfy may object to an auditor appointed by the Merchant in the event Shelfy reasonably believes the auditor is not suitably qualified or independent, is a competitor of Shelfy or otherwise unsuitable (“Objection Notice”). The Merchant will appoint a different auditor or conduct the Audit itself upon its receipt of an Objection Notice from Shelfy. Merchant shall bear all expenses related to the Audit and shall (and ensure that each of its auditors shall) over the course of such Audit, avoid causing any damage, injury or disruption to Shelfy’s premises, equipment, personnel and business while its personnel are on those premises in the course of such Audit. Any and all conclusions of such Audit shall be confidential and reported back to Shelfy immediately.
- DATA TRANSFER
Where EU Data Protection Law applies, neither party shall transfer Personal Data to a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data.
In the event of a conflict between the terms and conditions of this DPA and the Agreement, this DPA shall prevail. Except as set forth herein all of the terms and conditions of the Agreement shall remain in full force and effect.
- TERM & TERMINATION
This DPA shall be effective as of the Effective Date and shall remain in force until the Agreement terminates.