1. Introduction and Basic Definitions

We are Digismoothie s.r.o., a company having its registered office at Rohanske nabrezi 678/29, 186 00 Prague, Czech Republic, ID No.: 037 18 751, registered in the Commercial Register maintained by the Municipal Court in Prague under Insert C 336746 and duly incorporated under the laws of the Czech Republic (“Company” or “we”), who develops the software, applications and plugins for the Shopify Stores (the “App(s)”) as well as providing licenses to them via the Shopify App Store and any related services thereto.

These basic definitions will be used throughout these T&C in order to facilitate comprehension and the reading of these T&C:

• Agreement means the agreement entered into by and between us under which we undertake to provide you with the license to the Apps and related Services
• Client or you means you who enters into the Agreement with us
• Intercom Chat means our primary communication channel integrated into the Apps provided by Intercom service (https://www.intercom.com/)
• Fee means a fee paid for the Services
• Services means our services we undertake to provide you with under the Agreement, especially the services vis-à-vis the provision of the user license for the Apps and user support
• Shopify Company means Shopify Inc., whose registered office is at 150 Elgin Street 8th Floor Ottawa, ON K2P 1L4 Canada, and its related companies (subsidiary companies, etc.)
• Shopify App Store means the Shopify marketplace (app store) which allows users to install and operate their Shopify Stores available at: https://apps.shopify.com/, 
• Shopify Store means the online store (e-shop) maintained by Shopify on the Shopify.com platform for Clients
• Subscription Period means anywhere from a 30 to a 365-day billing period 
• T&C means these Terms and Conditions

By installing the App, you are thereby entering into the Agreement on the provision of Services with us, and further accept these T&C by installing the App and using the Services.

These T&C govern the mutual rights and obligations between us arising out of using the Apps and the provision of Services, while these T&C comprise an integral part of the Agreement.

You may use the Intercom Chat or following contact details of the Company for communicating with us:

• Mailing address: Rohanske nabrezi 678/29, 186 00 Prague, Czech Republic
• E-mail address: support@digismoothie.com

2. App Installation

You may install our App only if you are using the Shopify Store as its operator. The App may be installed only via the Shopify App Store if you are registered and logged in. If you are interested in becoming a Shopify user in terms of operating the Shopify Store, you can find more information here. Provided you grant us access to your Shopify Store, we thereby agree that we will be installing the Apps on your behalf.

The Shopify Company provides us with all your details and information we need to enter into an Agreement with you. We have the right to presume that all information and data that have been provided by you to the Shopify Company are accurate, complete and up-to-date.

We reserve the right to disable and prevent anyone from installing the App at any time and at our sole discretion, if, in our opinion, you have failed to comply with any of the provisions of these T&C.

While installing Apps, you may choose several options (tariffs) in terms of the Services. If you are unable to select a specific tariff, then one will automatically be selected for you based on your Shopify Store plan.

While installing the App, you will be informed about the applicable Fee for our Services which may vary in accordance with the chosen tariff. We may offer you a free trial that gives you access to our Services for a specified period either free-of-charge or at a reduced rate (“Trial”). Further, we are authorized to determine your Trial, and/or withdraw or modify a Trial at any time without prior notice and with no liability incurred. 

We reserve the right to modify, terminate or otherwise amend our Services offered, Apps and any promotional offerings at any time in accordance with these T&C.

3. Payments and billing 

The Fee will be paid using a payment gateway that is made available through the Shopify App Store in advance and on a monthly basis. The Fee will be paid to the Shopify account.

Your payment of the Fee will automatically renew at the end of the Subscription Period, unless you cancel your subscription (terminate the Agreement) before the end of the Subscription Period. The cancellation will become effective the day following the last day of the current Subscription Period. Please note we do not provide refunds or credits for any partially used Subscription Periods. 

Shopify shall issue an invoice for each payment after the Fee has been paid. This invoice will meet the requirements of any applicable tax and accounting regulations. You may find the invoice in your Shopify account according to the terms available at: https://help.shopify.com/en/manual/your-account/manage-billing/your-invoice/invoice-overview.

In case the Fee is not successfully paid, we may suspend your access to the App and our Services until the payment has been successfully processed. 

We may change the Fee and, if so, we will communicate any Fee changes to you in advance and, if applicable, how to accept those changes. Fee changes will become effective at the start of the next subscription period following the date of the Fee change. You agree to acceptance of the new Fee by continuing to use the Services after the price change has become effective. If you do not agree with the Fee change, you have the right to reject the change by unsubscribing from the Services prior to the price change going into effect.

4. Term and Termination of the Agreement

The Agreement is concluded for an indefinite period. 

The Agreement may be terminated by way of termination that is effectuated either by us or you.

Either of us may terminate the Agreement via e-mail or you may cancel the subscription to our Services by uninstalling the App, while the termination will become effective as of the end of the Subscription Period. 

We may terminate the Agreement effective immediately if:

• you breach the Agreement and/or the T&C; or
• you fail to pay the Fee by the due date.

5. Warranty Claims

You hereby acknowledge that the App may become inaccessible for a limited period of time due to necessary hardware and/or software maintenance of the server or in cases where the server is temporarily shut down.

If the App or our Services we provide you with are defective, you are entitled to make a warranty claim via the Intercom Chat or e-mail. The warranty claim must include details about you as the Customer, us as the Company, the particular Services and App provided, the nature of the defect, as well as a request for the warranty claim settlement. We endeavor to respond to your warranty claim within 30 days.

You are not entitled to be reimbursed for any costs incurred in connection with a warranty claim.

The grounds for the warranty claim cannot be predicated on the fact that the App or related Services do not correspond to your subjective expectations or if the defect arose from the App being used incorrectly or improperly.

6. License and Intellectual Property Rights

Intellectual property rights associated with the App and its contents are the sole property of the Company or its affiliates. We reserve all rights to our intellectual property rights which are contained in, published on and/or provided through the App. We are the exclusive and unlimited holder of all economic and, to the maximum extent possible and as permitted by the respective laws, moral rights to the Apps. The App is protected by copyright. 

The App is neither transferred, assigned, sold nor leased to you, while we retain ownership of all copies of the App and applications even after they have been installed on your Shopify Store.

You may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the intellectual rights to the App in any way whatsoever without our prior written permission.

All our trademarks, business names, logos, domain names, and any other features of the Company brand comprise our sole property as the Company. We do not grant you any rights to use any of its brands whether it be for commercial or non-commercial use.

We grant you a limited, non-exclusive, revocable right to use the App to the extent of access to using the Services (“License”), while the License shall remain in force and effect until termination of the Agreement, subscription and the provision of Services.

7. Limitation of Liability; Indemnification

We shall not be held liable towards any user of the App or Services for any loss or damage, whether in contract, tort (incl. negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:

• the use of, or inability to use the App;
• the use of or reliance on any content displayed on the App;
• the malfunction and non-accessibility of the App caused by force majeure, e.g., actions of a third party, hacker attacks, software or hardware failure; or
• any claims asserted by your clients and/or customers.

Please note that, in particular, we will not be held liable for any of the following:

• loss of profits, sales, business, or revenues;
• business interruptions;
• loss of anticipated savings;
• loss of business opportunities, goodwill or reputation; or
• any indirect or consequential losses or damages. 

We shall not be held liable for any loss or damage arising from any agreement entered into by you and any third party in connection with the provision of Services. 

We shall not be held liable for any loss or damage caused by any attacks in the form of hacking, viruses, a distributed denial-of-service, or any other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material in connection with using our site or as a result of your downloading any content on it, or on any website linked thereto.

We shall not be held liable for any content of any other website that a visitor may gain access to from our App (e.g., banner advertisements, etc.). If you click on any link that would take you away from the App, then you proceed entirely at your own risk.

You agree to indemnify and hold us harmless from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, either due to or arising out of you having breached these T&C.

8. Final Provisions

These T&C are written in English and governed by the laws of the Czech Republic. These T&C shall prevail over the provisions of the legislation from which they may depart from. Any disputes that arise between us shall be heard and resolved by the Czech courts in the jurisdiction based on the registered office of the Company.

We are entitled to modify these T&C. Any amendments made to these T&C will be published on our website and you will be informed thereof via the Intercom Chat as well. If you do not agree with the new version of the T&C, you are entitled to terminate the Agreement by uninstalling the App; however, should you not exercise this right, it shall be construed that you have agreed with the newly published version of the T&C.

If any provision of these T&C is or becomes invalid or ineffective, it will be replaced by a provision that comes as close as possible to the meaning of the invalid provision. The invalidity or ineffectiveness of one provision will not affect the validity of the remaining provisions.

Information about the processing of personal data is available under the Privacy Policy, which you can find here.

In Prague on June 1, 2021.

Data Processing Agreement

For the Payster and Loyal applications (the “Agreement”).

1. Introduction

We are Digismoothie s.r.o., a company having its registered office at Rohanske nabrezi 678/29, 186 00 Prague, Czech Republic, ID No.: 037 18 751, registered in the Commercial Register maintained by the Municipal Court in Prague under Insert C 336746 and duly incorporated under the laws of the Czech Republic (the “Processor” or “we”), who develops the software, applications and plugins for the Shopify Stores (the “App(s)”) as and provides licenses to them via the Shopify App Store and any related services thereto.You (“you” or the Controller”) and our Company entered into the service agreement under which we undertake to provide you with the license to the Apps and related services (the “Service Agreement”). Therefore, we cooperate on the basis of the Service Agreement under which we provide you with our services containing of the Payster application (the “Service”). Within such cooperation personal data are or may be transferred, when purpose of processing thereof and funds for such processing are determined and provided by your and we further processes the personal data for you within this Agreement. This Agreement is incorporated into, and is subject to terms and on conditions of the Service Agreement.

This Agreement is entered into under Article 28 of the Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the “Regulation”).  We process the personal data in accordance with the California Consumer Privacy Act of 2018.

This Agreement defines rights and obligations of the Parties during such a personal data processing. Where the data processing is not subject to the Regulation, this Agreement shall not apply.

2. Personal Data Processing

We are entitled to process for you the following personal data of your customers (the “Customer”):

• Name and surname;
• Address;
• E-mail address;
• Phone number;
• Invoice details;
• Phone number;
• other information necessarily processed to provide and deliver Service.

(the “Personal Data”).

We undertake to process the Personal Data only for the purpose of providing the Service, for the period of provision of the Service and only under your instructions. We take into an account that in the case of breach of this provision we shall be considered as a controller of the Personal Data.

You as the Controller make the Personal Data accessible to us via the Payster app, or the Loyal app.

3. Rights and Obligations of the Parties

We undertake to take technical, organizational and other measures that shall prevent unauthorized or accidental access to the Personal Data, their change, destruction, loss or other unauthorized treatment of the Personal Data. In particular we undertake:

• to use secured access to PC, where accesses to PC are known only to us;
• to use secured access to database of the Personal Data, we shall be obliged to enter the accesses in such manner so that they were not displayed, stored and made available for any third party;
• to use the processing software and services that comply with standard requirements for data security and standards set by the European Union and the laws of the State of California;
• not to make copies of the database without prior consent of you as the Controller, except from any necessary technology back-ups;
• use suitable methods of security, e.g. encryption or other convenient and necessary means always depending on particular act and data;
• not to allow access to the Personal Data for the third parties, unless such access is approved in writing by you as the Controller or unless it arises hereunder;
• to maintain confidentiality regarding the Personal Data;
• to process the Personal Data only in such form, in which they were transferred to us;
• to process the Personal Data only for the purpose defined hereby and solely to the extent necessary for fulfillment of such purpose;
• not to merge Personal Data obtained for different purposes;
• to keep the Personal Data only for the period set by you.

We assure you that the employees and other persons authorized to process the Personal Data processed them only in the scope and for the purpose under this Agreement and under the applicable legal regulations.

We both undertake to observe, when processing the Personal Data on the basis hereof, duties set by the applicable legal regulations relating to such activities.

We undertake upon your call to repair, update, delete or transfer the Personal Data under your instruction without undue delay after such call.

In the case that objection of a data subject under Article 21 paragraph 1 of the Regulation meant for us is found a legitimate, we undertake to remove the detrimental situation immediately after your written call. E-mail communication between us shall be also considered as written form.

When fulfilling the obligations hereunder we are obliged to proceed with professional care, observe your instructions and act in accordance with your interests.  

You agree that we shall be entitled to charge another processor with processing of the Personal Data without your additional permission (the “Sub-processor”). We shall inform you on all Sub-processors that we intend to charge with processing of the Personal Data and thus we provide you with opportunity to express your objections to admission of such Sub-processors. If you do not express your objections to the Sub-processors within three business days, we are entitled to charge such Sub-processor with processing of the Personal Data. If we involve the Sub-processor so that it carried out certain processing activities, the same duties for protection of the Personal Data must be imposed on the Sub-processor by an agreement, as are stated in this Agreement and in the Regulation and other general binding legal regulations if applicable.

The Processor at the present time charges with processing these following Sub-processors:

• Mailgun Technologies, Inc. which provides us with email delivery service;

We undertake to provide you with any and all information necessary for proving that the duties stipulated by this Agreement or by the Regulation and other general binding legal regulations relating to the personal data were fulfilled and allow you or third party bound towards you by duty of confidentiality, to carry out audit in a reasonable scope. Audit must be notified well in advance, at least 30 days before the audit and it must not intervene unreasonably in our activities. We both bear our own costs related to such audit.

4. Term of the Agreement

This Agreement shall be effective for the period of effectiveness of the Service Agreement.

In the case of any termination of the Agreement or termination of the Personal Data processing, we are obliged to return or liquidate immediately the Personal Data provided to us on the basis hereof. That means we remove any Personal Data within 48 hours after you uninstall the App.

5. Confidentiality

We undertake to maintain confidentiality concerning the processed Personal Data or safety measures taken to secure personal data protection, in particular we must not publish them, spread them or transfer to other persons except for the persons in employment or similar relation with us or other authorized persons charged with the Personal Data processing.  

We are obliged to ensure that also our employees and other authorized persons observe the duty of confidentiality.  

6. Liability

If we breach our obligations under this Agreement or the Regulation, we shall be liable for damage arisen in the consequence of such breach in the scope which regards the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them.  

Each party’s liability taken together in the aggregate arising out of or related to this Agreement shall be subject to the exclusions and limitations of liability set forth in the Service Agreement.

7. Final Provisions

Invalidity of any of provisions hereof shall not affect validity of other provisions hereof.

We both undertake to provide each other with all the necessary assistance and data to secure effective implementation hereof, in particular in the case of dealing with the respective public office for personal data protection or other public authorities.

If any provision of this Agreement is or becomes invalid or ineffective, it will be replaced by a provision that comes as close as possible to the meaning of the invalid provision. The invalidity or ineffectiveness of one provision will not affect the validity of the remaining provisions.

This Agreement is written in English and governed by the laws of the Czech Republic. This Agreement shall prevail over the provisions of the legislation from which they may depart from. Any disputes that arise between us shall be heard and resolved by the Czech courts in the jurisdiction based on our registered office.