In the meantime, read this article to learn how CartHook post-purchase offers can help your store.
Last modified on December 28, 2022
UpOrder is now a part of Pantastic Networks!
RetailerX, Inc. (d/b/a Pantastic Networks) provides the UpOrder application (formerly Spently) (referred to hereinafter as “Company” or “We” or “Us” or “Our”. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “UpOrder Services”).
The UpOrder Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy at https://brands.pantastic.com/privacy-policy (the “Privacy Policy”)), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Platform or made available to you on or through the UpOrder Services (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and Us. If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE UPORDER SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE UPORDER SERVICES.
The Company may, in its sole discretion, elect to suspend or terminate access to, or use of the UpOrder Services to anyone who violates these Terms.
If you register for a free trial of the UpOrder Services, the applicable provisions of these Terms will govern that free trial.
The original language of these Terms is English. The Company may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
DEFINITIONS
Account
the primary means for accessing and using the UpOrder Services, subject to payment of a Fee designated in the selected Plan;
Authorization
the set of rights and privileges on the Web Site assigned to a User by a Client;
Client
a natural or legal person who has accepted these Terms with the Company;
Client Data
Files and any other digital data and information, which is subjected to the UpOrder Services or otherwise inserted to the System by the Client (including the specific Users, Store Information, Customers, Orders, transactions, Products, persons, associated with the Client);
Content
any data and information available through UpOrder Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Shopify Account
a Client’s account with the Shopify commerce platform (www.shopify.com);
Fee
a one-time or recurring payment for using the activated Account;
Files
documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular Shopify Account or Person;
Free Trial
temporary access for the purposes of trying out the Web Site and UpOrder Services in accordance with any selected Plan without paying a Fee;
Guidelines
additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the UpOrder Services;
Plan
various criteria related to the use and functionality of the UpOrder Services and on which the Fee is based;
Platform
the UpOrder applications: UpOrder Email Notifications: https://shopify.uporder.com/
Products
the goods or services that a Client is offering to persons;
Special Terms
any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms;
System
the integrated cloud computing solution for providing the UpOrder Services, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
UpOrder Materials
the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the UpOrder Services;
UpOrder Services
the Web Site, System, Content, Platform and all content, services and/or products available on or through the Platform;
User
a natural person granted with the Authorization to use the Account on behalf of a Client;
Web Site
the compilation of all web documents (including images, ruby and html files) made available via www.spently.com, www.uporder.com or its related sites, sub domains or domains with identical names under other top domains and owned by the Company.
AUTHORITY TO ENTER INTO THESE TERMS WITH COMPANY
The use of the UpOrder Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
the person has received the confirmation of the creation of the Account and necessary credentials from the Company in order to log in to his/her/its Account; or
for those UpOrder Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.
You may not, without the Company’s prior written consent, access the UpOrder Services (i) for production purposes, (ii) if you are a competitor of UpOrder, (iii) to monitor the availability, performance or functionality of the UpOrder Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
MODIFICATIONS TO TERMS
The Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes to this Web Site, on or through the Platform or the UpOrder Services. Please check these Terms periodically for changes. Your continued use of the Web Site, Platform or UpOrder Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Notwithstanding the foregoing, the resolution of any dispute that arises between you and the Company will be governed by the Terms in effect at the time such dispute arose.
4. OUR RESPONSIBILITIES
4.1. Provision of UpOrder Services. The Company will (a) make the UpOrder Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the UpOrder Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the UpOrder Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
5. USING THE UPORDER SERVICES
5.1 Establishing an Account. Certain features, functions, parts or elements of the UpOrder Services can be used or accessed only by holders of an Account. Accounts can be established through the download of the UpOrder application through the Shopify App Store or other processes approved by the Company.
Each Client may have only one Account. If several persons need to use an Account on behalf of Client, Client must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.
If Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. The Company is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, the Company may, in its discretion, request additional information or proof of the person’s credentials. If the Company is not certain if a User has been granted Authorization, the Company may, in its sole discretion, prevent such User from accessing the UpOrder Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
The Client and any User associated with an Account must provide the Company with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
5.2 Logging Into an Account. The Company may provide Client with a username and password (“Login Credentials”) to be used to log in to its Account unless the Client uses the single sign-on feature or another service to log in. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify the Company of any disclosure, loss or unauthorized use of any Login Credentials; of a User’s departure from the Client’s organization; of a change in a User’s role in the Client’s organization; of any termination of a User’s right for any reason.
5.3 Termination of Account. Client may terminate these Terms at any time as provided in Section 17.
5.4 Fees. The use of an Account is subject to a Fee. Upon sign-up for an Account, the Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
6. PAYMENT
Please note that we use Shopify as our third-party payment processor to process payments made to us. As such, we do not retain any personally identifiable financial information in connection with your payment, such as credit card numbers. Rather, all such information is provided directly by you to Shopify. Shopify’s use of your personal information is governed by their privacy notice. To view Shopify’s privacy policy, please click here.
7. CLIENT DATA
7.1 Uploading Client Data to Platform. If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through the UpOrder Services by the Company. However, so that We can operate the UpOrder Services effectively, You hereby grant Us, by submitting Your Client Data to the Platform, a perpetual and irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, enter into computer memory, and use and practice, in any way now known or in the future discovered, Your User Content as well as all modified and derivative works thereof in connection with UpOrder Services (“ User Content License”). To the extent permitted by applicable laws, You hereby covenant not to assert against Us any moral rights You may have in any of Your Client Data. You agree that We may use Your Client Data for marketing and promotions of Services. The rights You grant in the User Content License are for the purpose of operating, promoting, and improving Our Services, operating, promoting and improving other services we offer and to develop, operate and promote new, features, services and/or products. You must have the necessary rights to grant Us this User Content License for any Client Data that You provide to Us, both directly and indirectly. You can find more information about how We collect, use and store content in our Privacy Policy. The Client is responsible for ensuring that the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the terms of these Terms, the rights of the Company, other Clients or Users, persons or Organizations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; and the Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
7.2 No Guarantee of Accuracy. The Company does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the UpOrder Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the UpOrder Services, as well as for any actions taken by the Company or other Clients or Users as a result of such Client Data.
7.3 Unlawful Client Data. The Company is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of the Company or if there is reason to believe that certain Client Data is unlawful, the Company has the right to notify the Client of such unlawful Client Data; deny its publication on the Web Site or its insertion to the System; demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law; or temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it. If Company is presented convincing evidence that the Client Data is not unlawful, the Company may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted. In addition, in the event the Company believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, the Company may (but has no obligation), to remove such Client Data at any time with or without notice.
7.4 Compelled Disclosure. The Company may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, the Company will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If the Company is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which the Company is a party, and Client is not contesting the disclosure, Client will reimburse the Company for its reasonable cost of compiling and providing secure access to that confidential information.
8. SERVICES
8.1 Use of the UpOrder Services. Subject to these Terms (including, if applicable, as modified by any separate written agreement between the Company and the Client, and the payment of the applicable service Fee, Client may use the Service as presented in the Shopify application store and as described on the Web Site.
8.2 Modifications to Service. Unless otherwise agreed in writing with you, the Company reserves the right to modify the UpOrder Services or any part or element thereof from time to time without prior notice, including, without limitation, rebranding the UpOrder Services at its sole discretion; ceasing providing or discontinuing the development any particular UpOrder Service or part or element of the Platform temporarily or permanently; taking such action as is necessary to preserve the Company’s rights upon any use of the UpOrder Services that may be reasonably interpreted as violation of the Company’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Client may be notified of such modifications via email or through any other method of communication routinely used by the Company. Modifications, including change in applicable rates for the UpOrder Services, will become effective immediately upon notification.
If the Client does not accept the modification, the Client shall notify the Company before the effective date of the modification, your sole remedy is to cease the use of the UpOrder Services. The Client’s continued use of the UpOrder Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. The Company shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the UpOrder Services, or any part or element thereof.
9. [RESERVED]
10. RESTRICTIONS
10.1 Prohibited Activities. Client and its authorized Users may use the UpOrder Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may use the UpOrder Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions; copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the UpOrder Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that the the Company is not permitted by that applicable law to exclude or limit the foregoing rights; or use the UpOrder Services or any part or element thereof unless it has agreed to these Terms.
10.2 Certain Uses Require Company Consent. The Client or any User may not, without the Company’s prior express written consent sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the UpOrder Services available in whole or in part to any third persons, unless such third person is another authorized User of the same Client; use the UpOrder Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created; use the UpOrder Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by the Company;
11. PRIVACY
The Company takes the privacy of its Clients and Users very seriously. The Company’s Privacy Policy at www.spently.com/legal/privacy-policy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs the Company’s collection, use, and disclosure of Client’s or User’s personal information.
12.1 UpOrder’s Intellectual Property Rights in the UpOrder Services. The UpOrder Services, UpOrder Materials, UpOrder trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by the Company and its third party vendors and hosting partners. UpOrder Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. The Company, its affiliates and licensors retains all right, title and interest in such UpOrder Services, UpOrder Materials, UpOrder trade names and trademarks, and any parts or elements. Your use of the UpOrder Services and UpOrder Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the UpOrder Materials is strictly prohibited unless you have received the express prior written permission from the Company or the otherwise applicable rights holder. The Company reserves all rights to the UpOrder Services, UpOrder Materials and UpOrder trade names and trademarks not expressly granted in the Terms.
12.2 Content Owned by UpOrder. Subject to these Terms and the payment of the applicable service Fee, the Company grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the UpOrder Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the UpOrder Services or as otherwise permitted by applicable law.
12.3 Client Data. The Company may use Client Data in an anonymized format for the purpose of operating, promoting or improving the UpOrder Services, operating, promoting or improving other services offered by the Company and to develop, operate and promote new features, services and/or products. Through the use of the UpOrder Services, some Shoppers may indirectly use the UpOrder Service. Therefore, the Company may indirectly receive information and data from Shoppers’ interactions with Client. We will use such data for business purposes, feedback implementation and recording transactions. We may use certain transaction information and other such data in order to improve the UpOrder Services, improve other products and services offered by us, develop new features, services and/or products. Client expressly grants the Company the right to use and analyze aggregate system activity data associated with use of the UpOrder Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the UpOrder Services operate, and to create new features and functionality in connection with the UpOrder Services in the sole discretion of the Company. In all cases, the use of the data referenced in this paragraph shall be consistent with the Privacy Policy.
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the UpOrder Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize the the Company to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the UpOrder Services and these Terms, and to grant the rights and license set forth herein, and (ii) Client Data, the Company’s or any UpOrder Licensee’s use of such Client Data pursuant to these Terms, and the Company’s or any UpOrder Licensee’s exercise of the license rights set forth herein, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by the Company to any third party for the performance of any UpOrder Services Client has chosen to be performed by the Company or for the exercise of any rights granted in these Terms, unless Client and the Company otherwise agree.
12.4 Feedback. If Client or a User provides the Company with any comments, bug reports, feedback, or modifications for the UpOrder Services (“Feedback”), the Company shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the UpOrder Services. Client or User (as applicable) hereby grants the Company a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose.
13. THIRD-PARTY SITES, PRODUCTS AND SERVICES
The UpOrder Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, the Company does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, the Company makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by UpOrder. By using any community marked code or libraries in your software development, you acknowledge and agree that UpOrder is not in any way responsible for the performance or damages caused by such community provided code or library.
14. DISCLAIMERS; NO WARRANTY
UNLESS OTHERWISE EXPRESSLY STATED BY THE COMPANY, THE UPORDER SERVICES, UPORDER MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE UPORDER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY THE COMPANY, THE COMPANY AND ITS AFFILIATES DO NOT WARRANT THAT THE UPORDER SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE UPORDER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE UPORDER SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE UPORDER SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY THE COMPANY, THE COMPANY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE UPORDER SERVICES, UPORDER MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. INDEMNIFICATION
You agree to defend, indemnify and hold harmless the Company and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the UpOrder Services, UpOrder Materials, representations made to the the Company, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company, and you agree to cooperate with such defense of these claims.
16. LIMITATION OF LIABILITY
16.1 No Liability: The Company shall not be liable to the Client or User for any consequences resulting from any modifications in these Terms, calculation and rates of Fees, the UpOrder Services, UpOrder Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the UpOrder Services or UpOrder Material; deletion of, corruption of, or failure to store any Client Data; use of Client Data by the Client or any of the Users associated with the Account; upgrading or downgrading the current Plan; any disclosure, loss or unauthorized use of the login credentials of Client or any authorized User due to Client’s failure to keep them confidential; the Client’s use of the Account or the UpOrder Services by means of browsers other than those accepted or supported by the Company; the application of any remedies against the Client or authorized Users by the Company, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the UpOrder Services or any part or element thereof; the differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the UpOrder Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet; the Company’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, the Company and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to provide the Company with accurate information about the Client, Users or Account; notify the Company of any reasons due to which a User does not have the right to use the Account on behalf of the Client; provide any Products which it has agreed to provide to such a person or Organization (whether such failure arises as a result of the Company’s negligence, breach if these Terms or otherwise); ensure the lawfulness of the Client Data; obtain the necessary rights to use the Client Data; or abide by any of the restrictions described in these Terms.
16.2 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE UPORDER SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
16.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
17. TERMINATION OF THESE TERMS
17.1 For Convenience. Unless otherwise agreed between the Company and you, these Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below by the Client any time by revoking the billing agreement on its Shopify Account; by the Company upon decision to end provision of the UpOrder Services and close the Platform; or immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
17.2 For Default. These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights] and 15 [Indemnification] of these Terms.
17.3 Effect of Termination. Upon termination of these Terms, the Company shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Client has specifically requested for an earlier deletion of the Account, the Company shall fulfill such request within 1 month of its receipt of such request. Client must stop using and prevent the further usage of the UpOrder Services, including, without limitation, the Platform; pay any amounts owed to the Company under these Terms; and discharge any liability incurred by the Client before under these Terms prior to their termination.
The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.
17.4 Remedies.
If the Company terminates these Terms as a result of an uncured breach by a Client or User, the Company is entitled to use the same or similar remedies against any other persons who use the UpOrder Services in conflict with these Terms. Notwithstanding the foregoing, the Company may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the UpOrder Services.
If the Company has reasonable grounds to believe that the Client’s or User’s use of the UpOrder Services, including the Account may harm any third persons, the Company has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
18. GOVERNING LAW AND JURISDICTION
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved in court or by arbitration as designated herein subject to the terms and conditions set forth below.
The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to these Terms. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflicts of law.
Use of the UpOrder Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
Notwithstanding the foregoing, you and the Company agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
19. GENERAL PROVISIONS
19.1 Relationship of the Parties. The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and the Company, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
19.2 Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
19.3 Entire Agreement. These Terms are the entire agreement between Client and the Company regarding Client’s use of the UpOrder Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
19.4 Assignment. Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without the Company’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
19.5 No Waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
19.6 Notices. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
