Shopappy™ is an eCommerce site that enables retailers to sell their products online to customers within a town in which they are located and to enable customers to click and collect or have delivered the products they have purchased.
This agreement (the "Agreement") is a legal agreement between the Vendor and Shopappy Limited (Company no. 10285855) of 15 Victoria Park, Shipley, West Yorkshire, United Kingdom BD18 4RL ("Shopappy").
Shopappy permits use of the Shopappy Services and Documentation by the Vendor on the basis of this Agreement. By checking the box confirming the Vendor's acceptance of this Agreement, the Vendor agrees to be bound by the terms of this Agreement.
Shopappy and the Vendor now agree as follows:
The following expressions shall have the following meanings:
- "Documentation" means the documents made available to the Vendor by Shopappy online via www.shopappy.com or such other web address notified by Shopappy to the Vendor from time to time which sets out a description of the Shopappy Services and the User instructions for the Services;
- "Effective Date" means the date on which the Vendor checks the box confirming its acceptance of the terms of this Agreement;
- "Listings" means each and any listing posted by the Vendor using the Shopappy Services and used to advertise the Vendor's products;
- "Information" means any and all documentation, materials, software, code and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, pricing, transactions, software, suppliers or methods of one Party and disclosed to or otherwise obtained by the other Party in connection with this Agreement;
- "Intellectual Property" means any and all intellectual property rights including patents, trademarks, design rights, copyright, rights in data and databases, domain names, topography rights, and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with any and all goodwill relating or attached thereto, the right to apply for registration of and/or register such rights and all extensions and renewals thereof;
- "Normal Business Hours" means 9:00 am to 5.00 pm, GMT on any Working Day; "Parties" means the Vendor and Shopappy and "Party" shall be construed accordingly;
- "Prohibited Items" means the prohibited items listed at www.shopappy.com or such other web address notified by Shopappy to the Vendor from time to time – Shopappy's prohibited items policy can also be viewed here;
- "Qualification Criteria" means the Vendor is subscribing to the Shopappy Services, own a shop in a town serviced by Shopappy and are not a multinational or franchise (as shall be determined by Shopappy in its sole discretion); "Sale Proceeds" means the actual invoiced value of the Vendor's products sold to a customer using the Shopappy Services;
- "Software" means Shopappy’s software provided as part of the Shopappy Services, including any updates and modifications made available from time to time by Shopappy;
- "Shopappy Services" means the services provided by Shopappy to the Vendor under this Agreement via www.shopappy.com or any other website notified to the Vendor by Shopappy from time to time, as more particularly described in the Documentation;
- "Support Services" means the support services in relation to the Shopappy Services provided by Shopappy to the Vendor in accordance with clause 4;
- "Term" has the meaning set out in clause 13.1;
- "Users" the employees and agents of the Vendor who from time to time access and use the Shopappy Services on behalf of the Vendor;
- "Working Day" any day falling on or between Monday to Friday, excluding all public and bank holidays in England and Wales;
- "Vendor" the person, firm, company or other body specified in Shopappy's account opening form; and
- "Virus" any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6 Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders.
1.7 The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context and reference to the whole includes reference to part.
2. Licence to use the Shopappy Services
2.1 Subject to the restrictions and the Vendor obligations set out in this Agreement, Shopappy hereby grants to the Vendor a non-exclusive, non-transferable right to permit the Users to use the Shopappy Services and the Documentation commencing on the Effective Date during the Term in accordance with the terms of this Agreement.
2.2 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, the Vendor may not nor permit others to:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
(b) rent, lease, sublicense, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis;
(c) translate, reverse engineer, decompile, disassemble, unbundle, modify or create derivative works based on the Software, except as expressly permitted by law; or
(d) access all or any part of the Shopappy Services and Documentation in order to build a product or service which competes with the Shopappy Services and/or the Documentation.
2.3 The Vendor undertakes to use all reasonable endeavours to prevent any unauthorised access to, or use of, the Shopappy Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Shopappy.
2.4 The integrity of the Software is protected by technical protection measures so that the Intellectual Property rights in the Software are not misappropriated. The Vendor must not attempt in any way to remove or circumvent such technical protection measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
2.5 All rights that are not expressly or specifically granted in this Agreement to the Vendor are reserved to Shopappy.
3. Provision of the Shopappy Services
Shopappy shall use its reasonable endeavours to make the Shopappy Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 1am to 3am UK time;
(b) unscheduled maintenance performed outside Normal Business Hours, provided that Shopappy has used reasonable endeavours to give the Vendor at least 1 Normal Business Hours’ notice in advance; or
(c) unavailability caused by any Force Majeure Event, including without limitation, denial of service attacks or any other form of third party attack the Shopappy Services may be subject to.
3.2 Shopappy reserves the right at any time to make any modification, change or addition to, or replacement of, the Shopappy Services where this is required to conform with any applicable statutory requirements. Shopappy shall give the Vendor as much notice as reasonably practicable of any proposed modification.
3.4 Shopappy shall not be liable for any failure to provide the Shopappy Services in accordance with this Agreement to the extent that such failure is caused directly or indirectly by the Vendor’s negligence or breach of any term of this Agreement.
Shopappy shall, at is discretion, provide the Vendor with support on how to use or resolve issues with the Shopappy Services. The Support Services will be available during Normal Business Hours by email on firstname.lastname@example.org. Shopappy will use reasonable endeavours to respond within 1-3 Working Days. During busy or holiday periods this response time may be extended.
5.1 Shopappy undertakes that the Shopappy Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Shopappy Services contrary to Shopappy's instructions, or modification or alteration of the Shopappy Services by any party other than Shopappy or Shopappy's duly authorised contractors or agents. If the Shopappy Services do not conform with the foregoing undertaking, Shopappy will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Vendor with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Vendor's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, Shopappy:
(a) does not warrant that the Vendor's use of the Shopappy Services will be uninterrupted or error-free; or that the Shopappy Services, Documentation and/or the information obtained by the Vendor through the Shopappy Services will meet the Vendor's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Vendor acknowledges that the Shopappy Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 This Agreement shall not prevent Shopappy from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5.4 Shopappy warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6. Vendor obligations
a. The Vendor:
(i) shall engage with the ShopAppy.com platform, and agrees to:
- log in within 48 hours of the registration being live, to add a business profile (including photograph or logo); opening hours; products, services and/or experiences/events that can be viewed, booked or purchased online. If the business is temporarily closed, the user shall apply the ‘on vacation’ functionality which will temporarily disable any product or service listings; and
- commit to delivering weekly social media/digital marketing activity to promote their own Shopappy profile page, individual product pages and any Shopappy content to promote the town scheme and any national campaigns as provided by Shopappy throughout the year; and
- refrain from setting up, or promoting more favourably, any other digital platform that competes with ShopAppy.com or diverts customer spend away from the Shopappy platform; and
- collaborate with local businesses to grow the Shopappy network and to provide the local community with the ability to purchase from multiple businesses, using a town-wide platform and a single-basket checkout with click and collect or local delivery options.
(ii) shall provide Shopappy with:
- all necessary co-operation in relation to this Agreement; and
- all necessary access to such information as may be required by Shopappy.
(iii) shall comply with all applicable laws, rules, regulations, guidelines and codes of conduct with respect to its activities under this Agreement in each case from time to time in force, including, without limitation, in relation to advertising and product labelling and product refunds;
(iv) shall hold all permits, licences, consents and authorisations necessary to enable it to use the Shopappy Services, comply with its obligations under this Agreement and to advertise and sell the products set out in the Listings;
(v) shall only use the Shopappy Services in accordance with the terms of the Agreement for its own internal purposes;
(vi) shall use the Shopappy Services in accordance with Shopappy’s reasonable instructions;
(vii) shall ensure that the Users use the Shopappy Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any User's breach of this Agreement;
(viii) shall ensure that its network and systems comply with the relevant specifications provided by Shopappy from time to time;
(ix) shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Shopappy's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Vendor's network connections or telecommunications links or caused by the internet;
(x) agrees it is responsible for the accuracy, content and legality of the Listings;
(xi) shall ensure that its opening hours, pricing and stock levels are at all times accurate, complete and up-to-date;
(xii) shall not list any Prohibited Items for sale using the Shopappy Services;
(xiii) shall accurately describe, post and list all of the Vendor's products in relevant categories and areas of the Shopappy Services;
(xiv) shall ensure each Listing shall not infringe the Intellectual Property rights or other rights of any third party;
(xv) shall not sell any counterfeit items or infringe the Intellectual Property rights of any third party;
(xvi) shall accept all orders for the Vendor's products submitted through the Shopappy Services;
(xvii) shall ensure and procure all orders for products submitted through the Shopappy Services are available for collection by or delivery to each customer at the date and time and at the point nominated by the relevant customer; being either the vendor's designated premises, the single collection point or via the local delivery partnership as notified by Shopappy to the Vendor;
(xviii) agrees Shopappy is not involved in the transaction between the Vendor and the customer for the sale of the Vendor's products. The contract for sale is directly between the Vendor and the customer. Shopappy is not responsible for the Vendor's products or for any delivery, returns, refunds, guarantees, warranties or other after-sale care or for any related problems;
(xix) acknowledges and agrees Shopappy is not responsible for the provision of the single collection point, the delivery partnership or any services performed by or acts or omissions of the single collection point provider or delivery partner in the Vendor's town. Shopappy's sole responsibility is to pay the single collection point provider or delivery partner a fee (if any) received by Shopappy on the Vendor's behalf from the Vendor's customer using Shopappy's payment gateway for the provision of the single collection point or home delivery to the Vendor. The Vendor further accepts that it is the Vendor's sole responsibility to enter into such agreements as may be necessary with the single collection point provider or delivery partner in connection with the services performed by it for the Vendor, including without limitation, relating to risk and title in the Vendor's products, storage requirements, insurance, procedures for customer delivery and verification, returns and incomplete and defective products; and
(xx) shall not use the contact information of any users, including customers who place an order, for any purpose other than in relation to a specific Shopappy transaction (which includes promoting alternative digital platforms or sending marketing materials directly to Shopappy users, unless the user has given explicit consent to receiving these materials).
b. The individual acting on behalf of the Vendor in entering into the Agreement warrants and undertakes that it has the requisite power and authority to act on behalf of the Vendor to enter into the Agreement and bind the Vendor.
c. The Vendor shall indemnify Shopappy against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Shopappy arising out of or in connection with any breach by the Vendor of any of its obligations under this Agreement.
7. Acceptable use
7.1 The Vendor shall only use the Shopappy Services for lawful purposes. The Vendor shall not use the Shopappy Services: in any way that breaches any applicable local, national or international law or regulation; in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; for the purpose of harming or attempting to harm minors in any way; to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); to knowingly transmit any data, send or upload any material that contains Viruses.
7.2 The following content standards apply to any and all material which the Vendor contributes or otherwise posts using the Shopappy Services ("contributions"). The Vendor must comply with the spirit and the letter of the following standards. The standards apply to each part of any contribution as well as to its whole. Contributions must: be accurate; be genuinely held; comply with applicable law in the UK and in any country from which they are posted. Contributions must not: contain any material which is defamatory of any person; contain any material which is obscene, offensive, hateful or inflammatory; promote sexually explicit material; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringe any Intellectual Property right of any other person; be likely to deceive any person; be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, upset, embarrass, alarm or annoy any other person; be used to impersonate any person, or to misrepresent the Vendor's identity or affiliation with any person; give the impression that they emanate from Shopappy, if this is not the case; advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
7.3 Failure to comply with this clause 7 (whether in whole or in part) constitutes a material breach of this Agreement upon which the Vendor is permitted to use the Shopappy Services, and may, without limiting any other rights or actions available to Shopappy, result in Shopappy taking all or any of the following actions: immediate, temporary or permanent withdrawal of the Vendor's right to use the Shopappy Services; immediate, temporary or permanent removal of any posting or material uploaded by the Vendor; issue of a warning to the Vendor; legal proceedings against the Vendor for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach; further legal action against the Vendor; disclosure of such information to law enforcement authorities as Shopappy reasonably feel is necessary; and/or termination of this Agreement.
8. Charges and Payment
8. Charges and Payment
8.1 The Vendor shall pay to Shopappy the charges set out in this clause 8 in consideration of its use of the Shopappy Services, except.
- where local subsidies are provided, for example through a Local Authority, Business Improvement District (BID), town-led funding or other membership funding, the Vendor shall pay a reduced annual fee (rather than a monthly subscription) (determined by Shopappy and depending on the level of subsidy provided); and
- where free subscriptions are provided for a set period of time or by a set date, Shopappy will provide an option at the end of the free period for the Vendor to agree to a paid subscription (determined by Shopappy) for no less than 12 months. There will be no obligation to enter into the paid subscription.
The Vendor shall pay Shopappy the agreed subscription fee via Direct Debit or by such other means as Shopappy may designate on the same day of each month during the term of this Agreement which shall be no less than 12 months from the date of registration. Current fees excluding VAT (subject to change):
- Shop units and businesses operating for 5 or more days per week: £19.99 per month
- Market traders, pop-ups or start-up businesses: £9.99 per month
If a subsidy has been applied, or a paid annual (or longer) subscription agreed, then the Vendor shall pay the appropriate sum as an annual fee, determined in accordance with clause 8(c) above.
8.2 The Vendor shall pay Shopappy an agreed subscription fee via Direct Debit or by such other means as Shopappy may designate on the same day of each month during the term of this Agreement or be an annual agreed date except in such case the scheme is being subsidised by a third party;
8.3 All amounts and fees stated in this Agreement:
(a) are exclusive of Value Added Tax and any other applicable taxes, duties and assessments which shall be payable by the Vendor in the manner prescribed by law;
(b) are non-cancellable and non-refundable; and
(c) may be subject to change on written notice from Shopappy based on fair usage or market conditions.
8.4 If the Vendor fails to make any payment due to Shopappy by the due date for payment then, without prejudice to Shopappy’s other rights and remedies, Shopappy may:
(a) charge the Vendor interest on the overdue amount at four percent (4%) above the official interest rate of the Bank of England. Such interest shall accrue on a daily basis from the due date of payment until the date of actual payment of the overdue amount, whether before or after judgment. The Vendor shall pay the interest immediately on demand by Shopappy; and/or
(b) suspend the Shopappy Services and/or any other services provided under on in connection with this Agreement (or any part of them).
8.5 Shopappy may at any time, without notice to the Vendor, set off any liability of the Vendor to Shopappy against any liability of Shopappy to the Vendor, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by Shopappy of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
9. Intellectual Property
9.1 All Information of Shopappy and all Intellectual Property and any other rights in the Software and in or arising from the Shopappy Services and/or any other services provided under or in connection with this Agreement shall be and shall remain at all times the exclusive property of Shopappy or relevant third party and the Vendor shall acquire no right, title or interest in or to the same and shall use such items solely as permitted by the terms of this Agreement.
9.2 When posting any content on the Shopappy Services which is visible to consumers, the Vendor grants Shopappy a non-exclusive, worldwide, perpetual (or for the duration of any copyright or other rights in such content), irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use the content (including without limitation, creating and using derivative works). To the fullest extent permitted by law, the Vendor waives and shall procure the waiver of any moral rights in the content and shall not and shall procure no third party shall assert such rights or any other Intellectual Property rights the Vendor has in the content against Shopappy, it sub-licensees or our assignees.
9.3 Shopappy may offer, license or otherwise make available for the Vendor's use catalogues of stock images, descriptions, product specifications, and other content, which may be provided by third-parties. The Vendor may use such catalogue content solely in connection with the Listings during the time the Listings are on Shopappy's website. That permission is subject to modification or revocation at any time at Shopappy's sole discretion.
9.4 While Shopappy try to offer reliable catalogue content, Shopappy do not warrant that catalogue content will always be accurate and up-to-date, and the Vendor agrees that it will not hold Shopappy or its catalogue providers responsible for inaccuracies. If the Vendor chooses to include catalogue content in its Listings, the Vendor continues to be responsible for ensuring that the Listing is accurate, does not include misleading information and fully comply with this Agreement. The Vendor agrees not to remove any copyright, proprietary or identification markings included within the catalogues or create any derivative works based on catalogue content (other than by including them in the Listings).
10. Sale Proceeds
10.1 Shopappy use the payment gateway Stripe to accept customer payments for the Vendor's products. The Vendor acknowledges and agrees the customer will choose which payment gateway to effect the transaction which means a variable transaction fee of 3 % of the Sale Proceeds will be charged by Shopappy to the Vendor to cover all processing and administrative costs (the "Processing Charges").
10.2 When monies from the Vendor's product sales have been transferred from the payment gateway to Shopappy, Shopappy will pay to the Vendor the Sale Proceeds less the Processing Charges (the "Net Proceeds") to a UK bank account nominated by the Vendor. To activate the payments to the Vendor, the relevant order must have been completed and updated in the Shopappy Services Vendor portal. Shopappy shall pay the Vendor the Net Proceeds when the Vendor has manually updated the status of its orders as “shipped”. Shopappy shall administer all Net Proceeds payments to the Vendor once a week once payments have been processed by Stripe.
10.3 Any disputed transactions must be dealt with by the Vendor directly with the customers according to the Vendor's own refund policies and the Vendor must use its best endeavours to address and resolve any disputes.
10.4 All of the above shall apply unless there are interruptions to normal Shopappy Services as referred to in clause 3.
11.1 Subject to the remainder of this clause 11, neither the Vendor nor Shopappy shall, without the other Party’s prior written consent, disclose to any third party Information (other than the business name of the other Party) which comes to that Party’s attention pursuant to this Agreement. Each Party shall only use the Information of the other Party to exercise its rights and/or perform its obligations under this Agreement.
11.2 The Vendor agrees that Shopappy may disclose the Information of the Vendor to any relevant third party to the extent reasonably required by such third party in order to allow provision of the Shopappy Services and/or any other services provided under or in connection with this Agreement.
11.3 The provisions of clause 11.1 shall not apply to information which:
(a) is in or comes into the public domain otherwise than by breach of this Agreement, except that any compilation of otherwise public information in a form not publically known shall nevertheless be treated as confidential Information;
(b) is in the other Party’s possession prior to the commencement of negotiations for this Agreement as shown by written evidence that predates the date of such negotiations;
(c) is or was lawfully received from a third party not under an obligation of confidentiality in respect of the same as shown by written evidence that predates the date of this Agreement;
(d) was developed independently of and without reference to the other Party’s Information; or
(e) is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required), in which case each Party shall promptly notify the other Party of any such disclosure requirement.
11.4 Unless the Vendor informs Shopappy in writing that it is not permitted to do so, Shopappy shall be entitled to publicise that the Vendor has licensed the Software and purchased the Shopappy Services from Shopappy in its advertising or promotional materials (including in case studies), press releases, tenders, proposal, speeches, articles and other similar materials.
11.5 Each Party shall be entitled to divulge the other Party's Information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with this Agreement provided that the receiving Party shall ensure that such persons are aware of and, shall procure that such persons comply with, these confidentiality obligations.
11.6 The restrictions contained in this clause 11 shall continue to apply after termination or expiry of this Agreement without limit in time.
This clause 12 sets out the entire financial liability of Shopappy (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Vendor:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Vendor of the Shopappy Services, Documentation and/or any other services provided under or in connection with this Agreement or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
(a) the Vendor assumes sole responsibility for results obtained from the use of the Shopappy Services and the Documentation by the Vendor, and for conclusions drawn from such use. Shopappy shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Shopappy by the Vendor in connection with the Shopappy Services, or any actions taken by Shopappy at the Vendor's direction;
(b) the Vendor assumes sole responsibility for (i) the use of the single collection point and any services provided by the single collection point provider and (ii) the use of the delivery partner. Shopappy shall have no liability for any damage caused by or acts or omissions of the single collection point provider or delivery partner;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(d) the Shopappy Services and the Documentation are provided to the Vendor on an "as is" basis.
12.3 Nothing in this Agreement shall exclude or limit Shopappy's liability for:
(a) death or personal injury caused by its (or its employees’, agents’ or contractors’) negligence; and
(b) fraud or fraudulent misrepresentation; and
(c) any other liability the exclusion or limitation of which is not permitted by English law.
12.4 Subject to clause 12.2 and clause 12.3:
(a) Shopappy shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits; loss of business; depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Shopappy's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited:
- where the liability relates to a failure by Shopappy to pay the Net Proceeds to the Vendor, to the Net Proceeds payable to the Vendor; and
- in all other circumstances not covered by clause 12.4(b)(i) to the greater of: (A) the total charges payable by the Vendor to Shopappy for its use of the Shopappy Services the during the twelve (12) month period prior to the date the liability first arose; and (B) five hundred pounds sterling (£500).
13. Term and Termination
13.1 This Agreement shall commence on the Effective. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement shall continue for one month (the "Initial Term") and shall automatically extend for one year (the "Extended Term") at the end of the Initial Term and at the end of each Extended Term. A party may give written notice to the other party, not later than 2 weeks before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
13.2 Shopappy shall have the right to terminate this Agreement at any time on immediate notice to the Vendor in the event that the Vendor:
(a) the Vendor fails to pay any amount due under this Agreement on the due date for payment;
(b) the Vendor commits a breach of this Agreement; or
(c) the Vendor takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) the Vendor suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Vendor's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
13.3 Shopappy may terminate this Agreement (or any part of it) and/or the Shopappy Services (or any part of them):
(a) by serving written notice on the Vendor with immediate effect, if termination is required for legal or regulatory reasons;
(b) if the Vendor does not meet the Qualification Criteria;
(c) on serving seven (7) days' prior written notice to the Vendor if Shopappy or its third party suppliers no longer operates or provides any or all of the products or services used in relation to the Shopappy Services or intends to cease operating or providing any or all of such products or services in the immediate future.
13.4 The termination of this Agreement shall be without prejudice to the accrued rights and liabilities of either Party subsisting under this Agreement prior to termination.
13.5 Shopappy may at its sole discretion suspend immediately the provision of the Shopappy Services and/or any other services provided under this Agreement (or any part of them) until further notice on notifying the Vendor either orally (confirming such notification in writing) or in writing if Shopappy is entitled to terminate this Agreement. Any suspension of the Services shall not exclude Shopappy's right subsequently to terminate this Agreement.
14. Consequences of termination
14.1 Upon termination of this Agreement for any reason, the Vendor shall:
(a) immediately cease to make use of the Shopappy Services;
(b) immediately pay any outstanding sums due under this Agreement; and
(c) either return or destroy all of Shopappy's Information or any document containing part thereof, together with all copies of such Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken.
14.2 Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.3 Any terms and conditions forming part of this Agreement which are agreed by the Parties to survive termination or which by their nature are to survive termination, shall survive and continue in full force and effect.
15. Force Majeure
15.1 Shopappy shall have no liability to the Vendor under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Shopappy or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (a "Force Majeure Event").
16.1 Notices sent in respect of any matter arising in respect of this Agreement shall be in writing and must be sent either by:
(a) pre-paid first class post; or
(b) delivered by hand; or
16.2 A notice shall be sent or delivered to the address specified in this Agreement (as updated by notice in accordance with this section) or email notified by each party to the other from time to time.
Notice is deemed given:
(a) in the case of hand delivery – at the time the delivery is made;
(b) in the case of posting– two (2) Working Days after the notice is posted; and
(c) in the case of email - at the time of transmission.
17.1 The Vendor shall not assign, purport to assign or otherwise transfer this Agreement and/or any of its obligations thereunder, in whole or in part, without Shopappy’s prior written consent.
17.2 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17.3 Unless otherwise stated herein, this Agreement can only be modified by the written and signed agreement of the Parties.
17.4 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 Shopappy may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
17.6 If any part of this Agreement is held unlawful, invalid or unenforceable, that part shall be considered struck out and the remainder of this Agreement shall remain in full force and effect. Shopappy and the Vendor shall work together in good faith to agree an enforceable replacement provision capturing the spirit of the original.
17.7 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
17.8 The Parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it unless specifically provided for this Agreement.
17.9 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
17.10 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).