Premium Shopify Care Plan Terms and Conditions

THESE ARE THE PREMIUM SHOPIFY CARE PLAN TERMS AND CONDITIONS AS REFERRED TO IN THE PROPOSAL OR ORDER FOR WEBSITE CARE SERVICES.

THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO CLAUSE 5 (THIRD-PARTY PLATFORMS), CLAUSE 8 (LIMITATION OF LIABILITY) AND CLAUSE 12 (TERM AND TERMINATION).

1. Interpretation

1.1 The following definitions apply in this agreement:

• Additional Work: any work outside the Services or beyond the Monthly Allowance, charged under clause 6.5.
• Business Day: a day other than a Saturday, Sunday or public holiday in England.
• Business Hours: 9.00 am to 6.00 pm UK time on a Business Day.
• Charges: the fees for the Services set out in the Order, together with any charges for Additional Work.
• Confidential Information: all technical or commercial information disclosed by one party to the other that is identified as confidential or ought reasonably to be considered confidential.
• Critical Incident: has the meaning given in clause 3.1.
• Customer: the customer named in the Order.
• Effective Date: the start date stated in the Order or, if none is stated, the date the Customer accepts the Order.
• Integrations: third-party features embedded in the Store, such as 3D visualisers, product configurators, reviews, booking and live chat tools.
• Intellectual Property Rights: patents, copyright, trade marks, rights in designs, rights in software, database rights, rights in confidential information and all other intellectual property rights, registered or unregistered, anywhere in the world.
• Materials: content supplied by the Customer for use on the Store, including product data, images, copy and 3D models.
• Monthly Allowance: up to 4 hours of development or content work in each calendar month, unless the Order states otherwise.
• Order: the proposal, order form or other document accepted by the Customer that confirms the Customer, the Store, the start date, the payment option and the Charges.
• Provider: Global Bay Creative Limited, incorporated and registered in England and Wales with company number 08440174, whose registered office is at Henleaze House, 13 Harbury Road, Henleaze, Bristol, BS9 4PN.
• Services: the Premium Shopify Care Plan services described in the Order.
• Shopify: Shopify Inc. and its affiliates, which host and operate the platform on which the Store runs.
• Store: the Customer’s Shopify online store identified in the Order, including its theme, apps and Integrations.
• Support Request: a request for help with the Store submitted by the Customer by email to support@globalbay.design, or through another channel the Provider notifies in writing.
• Third-Party Services: any platform, app, Integration, script or service not owned by the Provider, including Shopify, Shopify apps, analytics and advertising platforms and payment providers.
• Vulnerability: a weakness in software or hardware that, when exploited, harms the confidentiality, integrity or availability of a system.

1.2 Clause headings do not affect interpretation. Words in the singular include the plural and vice versa. A reference to writing includes email. Words following including or similar expressions are illustrative only.

1.3 If there is any conflict between the Order and these terms, these terms prevail unless the Order expressly states otherwise.

2. Services

2.1 From the Effective Date, the Provider shall provide the Services with reasonable care and skill.

2.2 The Provider may use subcontractors to perform the Services and remains responsible for their work.

2.3 The Services do not include hosting. The Store is hosted by Shopify under the Customer’s own agreement with Shopify.

3. Support and response times

3.1 A Critical Incident is an issue that stops the Store trading, namely: the Store is offline or inaccessible to customers; customers cannot complete checkout or payment; or there is a suspected security breach or unauthorised access to the Store.

3.2 The Provider shall acknowledge and begin responding to a Critical Incident within 2 hours of it being reported, 24 hours a day, 7 days a week, including weekends and public holidays.

3.3 Critical Incidents must be reported by phone or WhatsApp to the emergency contact number the Provider gives the Customer, as well as by email. Where the Provider’s monitoring detects a Critical Incident first, the Provider shall notify the Customer and begin responding within the same timescale.

3.4 For all other Support Requests, the Provider shall acknowledge and begin responding within 2 Business Hours of receipt. A Support Request received outside Business Hours is treated as received at the start of the next Business Day.

3.5 The response times are a commitment to respond, not to resolve. Resolution time depends on the nature of the issue and on any Third-Party Services involved.

3.6 Work to resolve a Critical Incident or Support Request counts against the Monthly Allowance, except where the issue was caused by the Provider’s own work.

4. Customer responsibilities

4.1 The Customer shall:

1. maintain an active Shopify subscription and pay all Shopify, app, Integration and other Third-Party Service fees directly;
2. keep ownership of the Store and its accounts, and give the Provider collaborator or staff access sufficient to perform the Services;
3. be responsible for the accuracy, legality and completeness of all Materials, pricing, tax settings and product information;
4. tell the Provider before installing or removing apps, or making theme or code changes, and accept that the Provider is not responsible for issues caused by changes made by the Customer or other parties;
5. respond to the Provider’s reasonable requests for information or approvals without undue delay; and
6. comply with Shopify’s terms of service and all laws applicable to the Store and its trading.

5. Third-party platforms

5.1 The Store depends on Third-Party Services that the Provider does not own or control. Shopify is responsible for hosting, platform uptime, checkout and payment security.

5.2 The Provider monitors the Store’s performance and uptime and will notify the Customer of any outage it detects. The Provider does not guarantee uptime and is not responsible for outages, changes, price increases or discontinuation of any Third-Party Service.

5.3 Where a Third-Party Service changes in a way that affects the Store, the Provider will advise on the options. Remedial work counts against the Monthly Allowance, and any excess is Additional Work.

5.4 Integration maintenance covers keeping existing Integrations working and checking compatibility after Shopify or theme updates. Creating content for an Integration (such as producing 3D models) is not included; managing the upload and integration of content the Customer supplies is included in the Services, with time counting against the Monthly Allowance. The Customer’s subscriptions to Integrations are not included.

5.5 Theme update management means reviewing and applying theme and platform updates where they are compatible with the Store’s customisations. Where an update would overwrite custom code, the Provider will recommend an approach before proceeding.

6. Charges and payment

6.1 The Customer shall pay the Charges set out in the Order, either monthly or annually as chosen in the Order.

6.2 Monthly payment: the Provider shall invoice monthly in advance.

6.3 Annual payment: the Provider shall invoice annually in advance, with any discount for annual payment stated in the Order. Annual Charges are non-refundable, including on early termination by the Customer.

6.4 The Customer shall pay each invoice within 7 days of its date. All Charges are exclusive of VAT, which shall be added where applicable.

6.5 Additional Work shall be charged at the Provider’s then-current rates. The Provider shall give an estimate and obtain the Customer’s written approval before starting any Additional Work.

6.6 Unused Monthly Allowance does not carry over to later months.

6.7 If the Customer fails to pay any amount by its due date, then without limiting the Provider’s other remedies:

1. the Customer shall pay interest on the overdue sum at 4% a year above the Bank of England’s base rate from time to time (or 4% a year when that rate is below 0%), accruing daily until payment; and
2. the Provider may suspend the Services until payment is made in full.

6.8 The Provider may change the Charges with effect from any renewal of this agreement by giving at least 30 days’ written notice before that renewal.

7. Warranties

7.1 Each party warrants that it has full power and authority to enter into and perform this agreement.

7.2 The Provider warrants that it shall perform the Services with reasonable care and skill.

7.3 The Provider does not warrant that:

1. the Store or the Services will be uninterrupted or error-free;
2. the Store will be free from Vulnerabilities; or
3. any Third-Party Service will continue to operate or remain compatible with the Store.

7.4 The Provider is not in breach of clause 7.2 to the extent a failure is caused by work carried out by the Customer or any third party, or by a Third-Party Service.

7.5 This agreement sets out the full extent of the Provider’s obligations. All other conditions, warranties or terms implied by statute or otherwise are excluded to the fullest extent permitted by law.

8. Limitation of liability

8.1 Nothing in this agreement limits liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be limited by law.

8.2 Subject to clause 8.1, the Provider shall have no liability for any:

1. loss of profits, sales or revenue;
2. loss of business or wasted expenditure;
3. depletion of goodwill or similar losses;
4. loss or corruption of data or information; or
5. special, indirect or consequential loss.

8.3 Subject to clause 8.1, the Provider’s total aggregate liability in each contract year shall not exceed the Charges paid by the Customer in the 12 months before the date on which the claim arose.

8.4 The Customer is responsible for keeping its own records of orders, customers and product data. Shopify’s own backups are not a service provided by the Provider.

8.5 References to liability in this clause 8 include every kind of liability, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9. Intellectual property rights

9.1 The Customer retains all Intellectual Property Rights in the Store, its content and the Materials, and grants the Provider a licence to use them to the extent needed to perform the Services.

9.2 On payment of the relevant Charges, all Intellectual Property Rights in work created by the Provider specifically for the Store under this agreement shall belong to the Customer. The Provider retains rights in its pre-existing tools, code and know-how, and grants the Customer a non-exclusive, perpetual licence to use any of them incorporated in the Store.

9.3 The Customer shall indemnify the Provider against all damages, losses and expenses arising from any claim that the Materials infringe a third party’s Intellectual Property Rights.

10. Content and credit

10.1 The Customer shall ensure the Materials do not infringe any law, regulation or third-party right, and are not obscene, defamatory, threatening or otherwise unlawful (Inappropriate Content).

10.2 The Provider may decline to publish, or may remove, content it reasonably suspects is Inappropriate Content, and shall tell the Customer promptly if it does.

10.3 The Customer shall indemnify the Provider against all damages, losses and expenses arising from any claim that the Materials are Inappropriate Content.

10.4 The Provider may reference the Store in its portfolio and marketing, unless the Customer asks it not to in writing.

11. Data protection

11.1 The following definitions apply in this clause:

• Applicable Data Protection Laws: (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Provider is subject, which relates to the protection of personal data.
• Customer Personal Data: any personal data which the Provider processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
• EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
• Provider Personal Data: any personal data which the Provider processes in connection with this agreement, in the capacity of a controller.
• Purpose: the purposes for which the Customer Personal Data is processed, as set out in clause 11.7.
• UK GDPR: has the meaning given to it in the Data Protection Act 2018.

11.2 For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing have the meanings given to them in the UK GDPR.

11.3 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

11.4 The parties have determined that, for the purposes of Applicable Data Protection Laws, the Provider shall process personal data as processor on behalf of the Customer. Should that determination change, the parties shall use all reasonable endeavours to make any changes needed to this clause 11.

11.5 Without prejudice to clause 11.3, the Customer will ensure that it has all necessary consents and notices in place to enable the lawful transfer of the Provider Personal Data and Customer Personal Data to the Provider, or their lawful collection by the Provider, for the duration and purposes of this agreement.

11.6 In relation to the Customer Personal Data, the scope, nature and purpose of processing by the Provider, the duration of the processing, and the types of personal data and categories of data subject are those needed for the Provider to provide the Services under this agreement.

11.7 Without prejudice to clause 11.3, the Provider shall, in relation to Customer Personal Data:

1. process it only on the documented instructions of the Customer, unless the Provider is required by applicable law to process it otherwise (Purpose). Where the Provider relies on applicable law as the basis for processing, it shall notify the Customer before processing unless that law prohibits it from doing so on important grounds of public interest;
2. implement technical and organisational measures to protect against unauthorised or unlawful processing, and against accidental loss, destruction or damage, which the Customer has reviewed and confirms are appropriate to the harm that might result and the nature of the data, having regard to the state of technological development and the cost of implementing any measures;
3. ensure that any personnel it authorises to process Customer Personal Data are committed to confidentiality or under an appropriate statutory or common law obligation of confidentiality;
4. assist the Customer, at the Customer’s cost, in responding to any data subject request and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws on security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5. notify the Customer without undue delay on becoming aware of a personal data breach involving Customer Personal Data;
6. at the Customer’s written direction, delete or return Customer Personal Data and copies of it on termination of this agreement, unless applicable law requires the Provider to keep it. Customer Personal Data is considered deleted where it is put beyond further use by the Provider; and
7. maintain records to demonstrate its compliance with this clause 11.

11.8 The Customer gives its prior, general authorisation for the Provider to:

1. appoint processors (including Shopify and the Provider’s subcontractors) to process Customer Personal Data, provided that the Provider:
   1. ensures the terms on which it appoints them comply with Applicable Data Protection Laws and are consistent with the obligations in this clause 11;
   2. remains responsible for their acts and omissions as if they were its own; and
   3. informs the Customer of any intended addition or replacement of processors, giving the Customer the opportunity to object. If the Customer objects and cannot demonstrate, to the Provider’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Customer shall indemnify the Provider for any losses, damages, costs (including legal fees) and expenses it incurs in accommodating the objection; and
2. transfer Customer Personal Data outside the UK as required for the Purpose, provided that the Provider ensures all such transfers comply with Applicable Data Protection Laws. The Customer shall promptly comply with any reasonable request of the Provider for this purpose, including any request to enter into standard data protection clauses adopted by the European Commission (where the EU GDPR applies) or by the Information Commissioner (where the UK GDPR applies).

11.9 Either party may, on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller-to-processor standard clauses or similar terms forming part of an applicable certification scheme, which shall apply when attached to this agreement.

11.10 The Customer is responsible for providing any terms of use, privacy policy, cookie policy and other policies required for the Store under its legal obligations.

12. Term and termination

12.1 This agreement starts on the Effective Date and continues for 12 months (Initial Term). It then renews automatically for successive 12-month periods (each a Renewed Term) unless either party gives at least 1 month’s written notice to end it at the end of the Initial Term or the current Renewed Term.

12.2 If the Customer ends this agreement before the end of the current term, other than under clause 12.3, the Charges for the rest of that term become due immediately.

12.3 Either party may terminate this agreement immediately by written notice if the other party:

1. fails to pay any amount due and remains in default 10 Business Days after written notice to pay;
2. commits a material breach and, if it can be remedied, fails to remedy it within 20 Business Days of written notice;
3. repeatedly breaches this agreement in a way that shows it does not intend or is unable to perform it; or
4. becomes insolvent, enters into an arrangement with its creditors, has an administrator, receiver or liquidator appointed, or suffers any equivalent event in any jurisdiction.

12.4 On expiry or termination, the Provider shall:

1. remove its own staff and collaborator access to the Store;
2. return any Materials and provide a written note of any credentials, settings or customisations it manages; and
3. give reasonable handover assistance to the Customer or a new provider, charged as Additional Work beyond 2 hours.

12.5 Any provision intended to continue after termination, including clauses 6, 8, 9, 11 and 15, shall remain in force.

13. Change control

13.1 Either party may propose a change to the scope of the Services. No change takes effect until both parties agree it in writing, including any change to the Charges.

14. Force majeure

14.1 Neither party is liable for failure or delay caused by events beyond its reasonable control, including the failure or outage of any Third-Party Service. The affected party shall notify the other promptly and take reasonable steps to limit the effect.

14.2 If such an event prevents performance for more than 4 weeks, either party may terminate this agreement by giving 4 weeks’ written notice.

15. Confidentiality

15.1 Each party shall keep the other’s Confidential Information confidential during this agreement and for two years after it ends. Each may disclose it to its employees, subcontractors and advisers who need to know it, or as required by law.

15.2 The Provider shall keep all Store access credentials secure and use them only to perform the Services.

16. Notices

16.1 Notices under this agreement shall be in writing and delivered by hand, by post to the party’s registered office or principal place of business, or by email to the representatives named in the Order.

16.2 An email notice is received when sent, or, if outside Business Hours, when Business Hours next begin.

16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or arbitration.

17. Assignment

17.1 Neither party may assign or transfer its rights or obligations under this agreement without the other’s prior written consent, not to be unreasonably withheld. This does not restrict the Provider’s use of subcontractors under clause 2.2.

18. Entire agreement

18.1 This agreement, together with the Order, is the entire agreement between the parties about its subject matter and supersedes all earlier agreements, promises and understandings about it.

18.2 Each party acknowledges it has not relied on any statement not set out in this agreement, and shall have no claim for innocent or negligent misrepresentation based on any statement in it.

19. Third-party rights

19.1 No one other than the parties has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

20. Variation and waiver

20.1 No variation of this agreement is effective unless it is in writing and signed by both parties.

20.2 A waiver of any right is effective only if in writing. A delay or failure to exercise a right does not waive it.

21. Severance

21.1 If any provision is found invalid or unenforceable, it shall be treated as deleted and the rest of this agreement shall continue. The parties shall negotiate in good faith to agree a valid replacement that achieves the intended result.

22. No partnership

22.1 Nothing in this agreement creates a partnership or joint venture, or makes either party the agent of the other.

23. Governing law and jurisdiction

23.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

23.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.