Terms of Service

RARELOGIC

ShopHero Service Agreement

IMPORTANT: BEFORE DOWNLOADING THE SHOPHERO SOFTWARE OR USING THESHOPHERO SERVICES, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE CERTAIN SOFTWARE AND SERVICES WHICH ENABLE CUSTOMER WEBSITE MONITORING AND COMMERCE ANALYTICS (COLLECTIVELY “THE SHOPHERO SERVICE”).

IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT USE THE SHOPHERO SERVICE. IF YOU ACCESS OR USE THE SHOPHERO SERVICE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THE RARE.IO SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS.

IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. BY CHECKING THE “I ACCEPT” BOX, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SHOPHERO SOFTWARE AND/OR SHOPHERO SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE TERMS OF THIS AGREEMENT ARE BINDING ON ANY USERS WITHIN YOUR ORGANIZATION WHO ACCESS THE SHOPHERO SERVICE THROUGH YOUR ACCOUNT.

1. ABOUT THE SHOPHERO SERVICE.

1.1 RareLogic Inc. (“RareLogic” or “ShopHero”) has developed computer software (the “ShopHero Software”) to provide the ShopHero Service, which is used to receive, store, process, compile, and/or analyze User Data (as defined below) and/or to generate ShopHero Reports, together with related documentation; ShopHero also operates computers, servers, networks, and telecommunications systems and equipment to provide the ShopHero Service.

1.2 ShopHero provides customers who have websites hosted via Shopify, or other web platforms supported by ShopHero (‘Supported Platforms”), to communicate with the ShopHero software application in order to receive access to performance data, usage metrics and analytics (as further described on the Website) derived from customer’s website (the “Customer Website”). This information is stored in various database structures for Customer. Once Customer is using the ShopHero Service, Customer will have the ability to access, view and use a variety of online web analytics reports (“Customer Reports”) that are compiled from Customer’s Website visitors’ data (“User Data”) collected through the ShopHero Software via the Customer’s Website.

1.3 In order to use the ShopHero Service, Customer must agree to the terms of this Agreement, connect to the ShopHero Software and create an account with ShopHero. These terms will apply to use of the ShopHeroService from the date of click-accepting of this Agreement until termination in accordance with Section (the “Term”).

1.4 Customer acknowledges that the Internet is not a secure means of communication. Customer shall remain responsible at all times for all aspects associated with the security of Customer’s Website. ShopHero assumes no responsibility for the security of Customer’s Website and/or any User Data.

2. LICENSE GRANT & COMPLIANCE OBLIGATIONS

2.1 Subject to all the terms of this Agreement and compliance with applicable laws, ShopHero grants to Customer, during the Term, a limited, non-exclusive, non-assignable, and non-transferable license to:
(a) remotely access over the Internet and use the ShopHero Software and User Data stored on the ShopHero Equipment for the Customer’s business purposes; and
(b) use Customer Reports during the Term including User Data contained in such Customer Reports solely for Customer’s internal business use, such as by viewing, printing, and exporting Customer Reports.

2.2 Except for the license rights granted to Customer herein, RareLogic retains all right, title and interest in and to the ShopHero Software and ShopHero Service. Customer shall not possess any title, ownership, license and/or intellectual property in any and/or all: (a) Customer Reports; (b) User Data; (c) databases containing User Data; nor (d) in any of the form and/or format used to create and display any Customer Reports.

2.3 By using the ShopHero Service, Customer authorizes and grants RareLogic the right to collect and process User Data in accordance with the terms of this Agreement and to send messages to third parties on behalf of Customer through the capabilities of the ShopHero Service. For the avoidance of doubt, it is Customer’s obligation to ensure compliance with any anti-spam and privacy laws when using the capabilities of the ShopHero Service to transmit messages. RareLogic will not be responsible or liable for any third party claim of breach of the applicable laws in relation to their receipt of any message which we have transmitted on your behalf via the ShopHero Service. Where the activities carried by Customer though the Service are subject to EU Data Protection Laws, Customer agrees to enter into the Data Protection Addendum set out here. “EU Data Protection Laws” means EU General Data Protection Regulation 2016/679 (“GDPR”) and as amended, replaced or superseded from time to time, including laws implementing or supplementing the GDPR.

3. RESTRICTIONS, PROHIBITIONS AND REQUIREMENTS

3.1 By using the ShopHero Service, Customer authorizes and grants RareLogic the right to collect and process User Data in accordance with the terms of this Agreement and to send messages to third parties on behalf of Customer through the capabilities of the ShopHero Service. For the avoidance of doubt, it is Customer’s obligation to ensure compliance with any anti-spam and privacy laws when using the capabilities of the ShopHero Service to transmit messages. RareLogic will not be responsible or liable for any third party claim of breach of the applicable laws in relation to their receipt of any message which we have transmitted on your behalf via the ShopHero Service.

(a) Customer shall use the ShopHero Service, including any and all User Data, solely in accordance with the provisions of this Agreement and for Customer’s internal business purposes; not for resale or transfer to any third parties;

(b) Customer shall ensure that all required consents are obtained in order for RareLogic to provide the ShopHero Service including the collection and analysis of User Data;

(c) Customer shall not prepare any derivative work based in whole or in part upon the ShopHero Service and/or ShopHero Intellectual Property;

(d) Customer shall not reverse engineer, decompile, or disassemble, or translate the ShopHero Software, nor take any steps to discover the trade secrets or confidential information contained in ShopHero Software;

(e) Customer shall not circumvent any user limits or other use restrictions that are built into the Service or access the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the ShopHero Software or ShopHero Service.

(f) Customer shall not allow, authorize, or permit connection to the ShopHero Service by daemons, bots, or other form of robot software;

(g) Customer shall not introduce or use any device, software or routine that interferes or attempts to interfere with the operation of the ShopHero Service and/or ShopHero Software, nor any portion thereof; and

(h) Customer shall not post for download, transmit or distribute any source code, software or routines for the purpose of interfering with the operation of the ShopHero Service and/or the ShopHero Equipment; and

(i) Customer agrees to have in place a privacy policy which is compliant with and to obtain all requisite consents to the extent required under all applicable privacy laws and regulations (including without limitation and where applicable the GDPR) which will be made available on Customer’s site and disclose the use of services which track purchase activity and other metrics or otherwise relate to the processing of personal information as contemplated under this Agreement.

4. SECURITY OF CUSTOMER ACCOUNT AND PASSWORD

4.1 Customer shall be responsible for safeguarding all information relating to the Customer Account and for all activities relating to the ShopHero Service that occur under the Customer Account, including all activity that occurs under each subsequent Customer Account created for other persons in Customer’s organization.

4.2 Customer shall not publish or make publicly known any information related to the Customer Account, or any subsequent Customer Account. Customer agrees to notify ShopHero immediately upon learning of any unauthorized use of any Customer Account.

4.3 ShopHero may be required to log into the ShopHero Service using the Customer Account from time to time to provide assistance to Customer and to maintain or improve the ShopHero Service. Customer consents to ShopHero’s use of the information contained in each Customer Account for any and all such purposes.

5. PROPRIETARY RIGHTS IN SHOPHERO TECHNOLOGY

5.1 ShopHero intellectual property includes all intellectual property owned or controlled by ShopHero which is used to operate, provide, support, maintain, update, and/or enhance the ShopHero Service.

5.2 SHOPHERO and RARELOGIC (the “Marks”) are trade names and trademarks of RareLogic Inc. Customer shall not, at any time or times, during or after the Term of this Agreement, question or dispute any of ShopHero’s right, title, ownership, license, intellectual property, and/or other interests in the Marks, ShopHero Service and/or ShopHero Intellectual Property, nor, file any patent, copyright, and/or other intellectual property application and/or registration relating to any portion of the ShopHero Service.

5.3 The ShopHero Software and components of the ShopHero Service are proprietary and confidential to Rare.io, and are protected by Canadian intellectual property laws and by applicable international laws, treaties, and conventions, and shall remain the sole property of ShopHero.

6. INFORMATION COLLECTION, DATA PROTECTION AND OTHER TERMS

6.1 User Data. User Data may include customer purchase history and other types of data from which analytics (including segments and trends) can be derived through the ShopHero Service for use by Customer in achieving better customer engagement. ShopHero will not have access to users’ credit card numbers. As between RareLogic and Customer, Customer shall own the rights to User Data subject to RareLogic’s right to compile and use aggregate data in accordance with the terms of Section 6.2. ShopHero will not share User Data with any third parties unless ShopHero unless (i) has Customer’s consent to such disclosure; (ii) is required by law or has a good faith belief that access, preservation or disclosure of User Data is reasonably necessary to protect the rights, property or safety of ShopHero, its users or the public; or (iii) provides User Data in certain limited circumstances to third parties to carry out tasks on ShopHero’s behalf such as data storage or billing in which event, ShopHero will ensure that such third parties are bound by terms which restrict use or transmission of the data beyond the scope of providing agreed services to ShopHero.

6.2 Service Data. Customer acknowledges and agrees that ShopHero may, from time to time during and after the Term, prepare, archive, copy, use, publish, distribute, license, and sell generic, non-personal data derived from the operation of the ShopHero Service including from User Data (“Service Data”). Service Data may include aggregated data such as browser and operating system popularity, and most active countries, states and provinces, using data from any number of ShopHero customer websites including from the Customer’s Website. ShopHero owns all right, title and interest in and to Service Data but will only provide Service Data to third parties in aggregated and/or averaged form with no disclosure of personally identifiable information or information which specifically identifies Customer, Customer’s Website, or products or services Customer sells through Customer’s Website.

6.3 Privacy Compliance. Customer is responsible for any and all User Data provided to RareLogic and collected through the Service and represents to RareLogic that Customer has all necessary licenses, permissions and consents required under applicable laws and regulations (including without limitation the GDPR) to enable all material comprising User Data to be collected, processed and stored as required for RareLogic to provide the Service and to disclose such data to RareLogic. Customer is also solely responsible for notifying and, to the extent required, obtaining adequate consent from Site Users that RareLogic is collecting and processing information about them in order to personalize the Customer Site or enhance their user experience. For the avoidance of doubt, Customer, not RareLogic is responsible for the security of all data on Customer’s Website including User Data. Customer agrees to comply with all applicable national, provincial, state and federal laws and rules (including without limitation the GDPR, where applicable) in using the ShopHero Service and in connection with the collection, use, storage, disclosure and security of any personal information about Site Users through the Customer’s Website and shall, throughout the Term, maintain a privacy policy for the Customer’s Website complying with applicable privacy laws.

6.4 Suggestions. RareLogic shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Site Users relating to the operation of the Service.

7. CONFIDENTIAL INFORMATION

7.1 Confidential information (“Confidential Information“) shall mean data or information of any kind disclosed by one party to this Agreement (“Disclosing Party“) to the other party (“Recipient Party“) pursuant hereto. Confidential Information shall not include any information, knowledge, and/or data disclosed pursuant to this Agreement that; already is or becomes part of the public domain through no wrongful act of the Recipient Party; or is known to the Recipient Party free of any obligation of confidentiality; or is independently developed by Recipient Party without use of any Confidential Information; or is lawfully obtained by the Recipient Party from a third party without obligation of confidentiality; or is disclosed pursuant to a court order provided that the Recipient Party provides a copy of such court order to the Disclosing Party prior to such disclosure and Recipient Party takes all reasonable steps to maintain the confidentiality of the Confidential Information.

7.2 Each Recipient Party shall receive and maintain all Confidential Information received hereunder in confidence; use the same degree of care to protect Confidential Information as such Recipient Party itself uses to protect its own confidential information; and disclose Confidential Information received hereunder only to those of its directors, officers, employees, who have a direct need to know and who are bound by written confidentiality obligations at least as restrictive as those contained herein.

7.3 All ownership, license, intellectual property, moral, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party and/or with such Disclosing Party’s licensors.

7.4 Each Recipient Party shall promptly cease all use of all Confidential Information received hereunder upon any termination of this Agreement and will promptly return all such Confidential Information to the Disclosing Party by a secure means without delay.

7.5 Customer shall maintain in confidence all provisions of this Agreement and shall not disclose any of same (including any of ShopHero’s pricing) to any third party or parties.

8. SHOPHERO FEES, INVOICING AND PAYMENT

8.1 After Customer signs up to the ShopHero Service, Customer will only be required to pay for optional features as indicated on www.shophero.io/pricing.

8.2 Customer shall provide a valid credit card number prior to ShopHero enabling Customer’s Account; Customer grants to ShopHero permission to debit the credit card number(s) provided by Customer at any time or times for any and all unpaid amounts owing to ShopHero from Customer pursuant to this Agreement.

8.3 Should Customer’s credit card number(s) be insufficient to pay any or all amounts due to Rare.io hereunder, Customer shall: (a) promptly pay all such amounts due to ShopHero without delay; and (b) become responsible to ShopHero for payment of all legal and/or collection agency fees, disbursements, costs, and other amounts incurred by ShopHero in attempting to collect and/or collecting all such amounts from Customer.

8.4 ShopHero may, upon the provision of five (5) calendar days prior written notice to Customer, suspend the supply of the ShopHero Service, deactivate Customer’s Account, suspend ShopHero’s performance, and/or immediately terminate this Agreement if any credit card number provided by Customer is declined, rejected, cancelled, or inadequate to allow ShopHero to charge all amounts due from Customer hereunder.

8.5 Customer shall be solely responsible for payment of all applicable European Union, country, federal, provincial, state, and other government taxes (“Applicable Taxes”) applied to Customer’s use of the ShopHero Service regardless of whether such Applicable Taxes are in effect at the time of this Agreement or are imposed thereafter, except such taxes as may be imposed on ShopHero’s income. If ShopHero is required to pay any Applicable Taxes owing by Customer, Customer shall reimburse ShopHero in full promptly following receipt of ShopHero’s invoice for same.

8.6 Subject to providing notice to Customer in accordance with the provisions of this Agreement, ShopHero reserves the right to change the price charged by ShopHero for the ShopHero Service at any time or times.

9. TERMINATION

9.1 Customer may cancel Customer’s account at any time by clicking “Remove this app” in Customer’s ecommerce platform app store or by emailing help@rarelogic.com. If Customer cancels the ShopHero Service in the middle of the month, Customer will receive one final invoice via email. Once that invoice has been paid Customer will not be charged again. Once cancellation of Customer’s account is confirmed, all User Data will be immediately deleted from the ShopHero Service. Since deletion of all data is final, Customer must ensure that Customer does want to cancel Customer’s account before doing so.

9.2 ShopHero may terminate Customer’s account for breach which remains uncured after 10 days written notice to Customer’s email account of such breach. ShopHero also reserves the right to terminate this Agreement for any reason upon the provision of written notice to Customer, such termination will take effect from the end of the current month. Customer agrees that ShopHero shall have no liability to Customer whatsoever for any: (a) the expiry or termination by ShopHero of this Agreement; or, (b) claims or damages arising purely as a result of the expiry or termination of this Agreement. On termination by ShopHero under this Section, all User Data will be deleted from the ShopHero Service. Such deletion of all data is final, Customer must extract such data prior to the effective date of termination.

9.3 Termination of this Agreement shall not relieve Customer of any obligations to pay all fees, Applicable Taxes, and/or other amounts that have accrued to, or that are otherwise due to Rare.io under this Agreement, and each outstanding amount due to ShopHero from Customer shall immediately become due and payable.

9.4 Each license granted by ShopHero to Customer within this Agreement shall automatically terminate except for Section 3( Restrictions and Prohibitions); Section 5 (Proprietary Rights in Rare.io Technology), Section 6 (Information Collection, Data Protection and Other Terms), Section 7 (Confidentiality), Section 10 (Warranties and Disclaimers; Limitation of Liability), Section 11 (Indemnity by Customer) and Section 13 (General Terms), all of which shall continue in full force and effect beyond the expiry or termination of the Term.

10. WARRANTIES AND DISCLAIMERS; LIMITATION OF LIABILITY

10.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.

10.2 Data Warranties. Customer represents and warrants that: (a) Customer has all rights necessary to provide RareLogic with access to User Data for use in accordance with the terms of this Agreement; and (b) RareLogic’s use of the User Data in accordance with the terms of this Agreement will not violate the rights of any third party.

10.3 DISCLAIMER OF IMPLIED WARRANTIES. RARELOGIC DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT ANY AND/OR ALL OF THE RARE.IO SERVICE AND/OR USER DATA PROVIDED TO CUSTOMER PURSUANT TO THIS SHOPHERO SERVICE AGREEMENT WILL BE ERROR FREE, ACCURATE, TIMELY, OR RELIABLE, WILL OPERATE ON ANY OR ALL SOFTWARE PLATFORMS, WILL PRODUCE ANY PARTICULAR RESULT, OR THAT ANY OR ALL ERRORS IN SAME WILL BE CORRECTED BY SHOPHERO. ALL OF THE SHOPHERO SERVICE INCLUDING SHOPHERO SOFTWARE AND REPORTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE BY RARELOGIC OF ANY KIND, HOWSOEVER ARISING. RARELOGIC DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF QUALITY, MERCHANTABILITY, OPERATION, SUITABILITY, TITLE, NONINFRINGEMENT AND/OR FITNESS FOR PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED OR OTHERWISE, HOWSOEVER ARISING.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF ANY JURISDICTION HAVING APPLICABILITY TO THIS AGREEMENT DOES NOT PERMIT ANY SUCH EXCLUSION AND/OR LIMITATION: (A) EACH WARRANTY AND/OR CONDITION WHICH CANNOT BE EXCLUDED SHALL BE LIMITED TO SIXTY (60) DAYS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE AND SHOPHERO’S TOTAL AND AGGREGATE LIABILITY TO CUSTOMER FOR ANY AND ALL BREACHES OF SUCH WARRANTIES AND/OR CONDITIONS SHALL BE SUBJECT TO ALL OF THE LIMITATION OF LIABILITY PROVISIONS CONTAINED HEREIN.

10.4 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL BREACHES BY SHOPHERO OF THIS AGREEMENT (INCLUDING FUNDAMENTAL BREACH), THE TERMINATION OF THIS AGREEMENT, AND/OR ANY OBLIGATION THAT SHOPHERO MAY HAVE IN CONTRACT, TORT, EQUITY, RESTITUTION, AT LAW, AND/OR OTHERWISE, IN NO EVENT SHALL RARE.IO BE LIABLE TO THE CUSTOMER, TO ANY USER OF THE CUSTOMER’S WEBSITE, NOR TO ANY OTHER PARTY FOR ANY: (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, AND/OR PUNITIVE DAMAGES; NOR (B) LOST SALES, LOST REVENUE, LOST PROFITS, LOST CUSTOMER DATA, LOST USER DATA, OTHER LOST DATA, OR REPROCUREMENT AMOUNT; HOWSOEVER ARISING, EVEN IF RARE.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR LOSSES ARISING AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOPHERO’S TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY TO CUSTOMER; SHALL NOT EXCEED THE FEES RECEIVED BY SHOPHERO FROM CUSTOMER FOR TWO MONTHS AVERAGE USAGE OF THE SHOPHERO SERVICE.

10.5 THE PARTIES AGREE THAT: (A) RARELOGIC WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS ARTICLE BEING INCLUDED HEREIN AND THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS ARTICLE REPRESENT THE PARTIES AGREEMENT AS TO THE FAIR ALLOCATION OF RISK BETWEEN THE PARTIES.

11. INDEMNITY BY CUSTOMER

11.1 Customer shall indemnify, defend, and hold RareLogic harmless from and against any and all loss, damage, claims, demands, actions and costs (including legal/attorney fees), charges, expenses and liabilities of whatsoever nature incurred by a RareLogic Indemnity directly or indirectly out of or in connection with: (i) the alleged misappropriation or infringement of the proprietary or intellectual property rights of a third party in respect of the User Data; or (ii) any representation, warranty or other commitment made by Customer to any third party in respect to the Service; or (iii) breach by Customer of any of its warranties or representations under this Agreement (“Claim”).

11.2 RareLogic shall in its discretion give Customer conduct of any Claim to control the defense and settlement of such Claim (provided that RareLogic may participate with counsel of its own choosing), and RareLogic shall provide reasonable assistance, at Customer’s expense, in defending or settling such claim.

12. TECHNICAL ASSISTANCE & UPDATES TO THE RARE.IO SERVICE

12.1 ShopHero shall provide reasonable technical assistance on a no-charge email and telephone basis to Customer during regular business hours posted at http://www.shophero.io.

12.2 ShopHero shall not be responsible for any of Customer’s telephone, Internet, email, or other costs, nor shall ShopHero be responsible to Customer for ShopHero’s inability to provide Technical Assistance. ShopHero shall not provide assistance to Customer for any product or ShopHero Services other than the ShopHero Service.

12.3 ShopHero reserves the right to partially or fully take the ShopHero Service offline from time to time in order to perform maintenance, support, and/or upgrades to the ShopHero Service. ShopHero will attempt to notify Customer by one of the following methods when such offline periods are scheduled to occur: (a) by email; (b) by displaying a notification upon the Customer attempting to log into the ShopHero Service’s reporting interface; or (c) by displaying a notification upon Customer attempting to connect to any ShopHero Equipment.

13. GENERAL TERMS

13.1 Changes to the Services and this Agreement. ShopHero reserves the right to at any time modify, enhance, add to, and/or remove the capabilities, features, and/or functionality of the ShopHero Service, including without limitation, the User Data that the ShopHero Service is able to collect, transmit, store, process, and/or report; and/or the provisions of this Agreement. Changes to this Agreement will be notified to Customer by email, on next login to the ShopHero Service or on the home page of the ShopHero Website. Customer’s continued use of the ShopHero Service for more than thirty (30) calendar days following such changes shall constitute Customer’s acceptance of, and agreement to, each and every change.

13.2 Force Majeure. ShopHero shall not be liable to Customer or to any user of Customer’s Website, nor to any other party for failure of ShopHero to perform any and/or all of ShopHero’s obligations under this Agreement as a result of an event beyond ShopHero’s reasonable control, including without limitation, but is not limited to, an act of god, war, terrorism, act of government, interruption or failure of electrical power, climate control system, telecommunications system, computer network or security system, failure of a vendor or supplier, fire, flood, strike, labor dispute, criminal act, and/or unusual or severe weather.

13.3 Governing Law. This Agreement shall be construed, interpreted and governed in accordance with the laws of the Province of Ontario, Canada. If any provision of this Agreement is held to be unlawful or unenforceable, such provision shall be severed from this Agreement but all remaining provisions of this Agreement will remain in full force.

13.4 Notices. ShopHero or Customer may provide notice to the other by email, by facsimile transmission, and/or by written document mailed by first class mail or delivered personally or by courier to the receiving party. In addition, ShopHero may also provide valid notice to Customer by posting a notice on the ShopHero Service logon screen. Each notice provided by a party to this Agreement shall be deemed to have been received by the other; the same day if sent by email or facsimile transmission; five (5) business days after being sent by first class registered or certified mail; the day of delivery if delivered personally or by courier; or ten (10) business days after being first posted by ShopHero on the ShopHero Service logon page. Customer shall promptly update any of Customer’s contact or billing information that has changed.

13.5 Publicity. Provided that neither party releases, discloses, or makes publicly available any Confidential Information of the other party, ShopHero and Customer may refer generally to the existence of this Agreement. ShopHero may also list and show the Customer as a customer of ShopHero on the ShopHero Website and in other ShopHero marketing materials, including digital and print materials prepared by or for RareLogic.

13.6 Unfair Competition. Customer warrants that Customer has not entered into this Agreement with ShopHero to gain competitive intelligence regarding the capabilities, features, and/or functionality of the ShopHero Service, nor will Customer produce a competing product based on Customer’s knowledge of the ShopHero Service for a period of two years after the expiry or termination of the Term. Customer further warrants to ShopHero that Customer is not employed by, in partnership or alliance with, or in any way affiliated with any producers of competing technology.

13.7 Independent Contractors. ShopHero and Customer shall remain independent contractors at all times. Neither party will represent that it has authority to assume or create any obligation on behalf of the other, or is the agent, employee, franchisee, or representative of the other. Neither party will create any obligation or liability on the part of the other.

13.8 Binding Terms. This Agreement shall ensure to the benefit of, and be binding upon, ShopHero and Customer and their respective successors, representatives, and assigns. No provision of this Agreement is intended to create, or shall create, any third party beneficiary contract, nor any rights which may be asserted by any party who has not accepted this Agreement. No third party may enforce any provisions of this Agreement against ShopHero or Customer, either individually or collectively.

13.9 Assignment. ShopHero may assign this Agreement upon the provision of written notice to Customer, including as part of any sale, transfer, assignment, and/or conveyance of all and/or any part of ShopHero, its shares, assets, intellectual property, property, business units, and/or business operations. Customer shall not assign this Agreement or its rights hereunder without the prior written consent of ShopHero.

13.10 No Waiver. No waiver of any breach hereunder shall be effective unless contained in a written document signed by the party negatively affected by such waiver, nor shall any such waiver constitute a waiver of any other breach.

13.11 Entire Agreement. This Agreement constitutes the sole, exclusive, and complete Agreement between the ShopHero and Customer relating to the ShopHero Service and supersedes all prior and/or contemporaneous written and/or oral agreements or representations between ShopHero and Customer concerning the subject matter of this Agreement.

Last Updated May 23, 2018