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Terms of service

APPLICABILITY

1.1 These Terms of Service (“Terms”) govern your use of and access to the Instant Section & Page Builder application (“Application”).

1.2 For the purpose of the Terms, “Instant”, “us”, “we” and “our” means Instant Commerce B.V., a private company with limited liability, organized under the laws of the Netherlands, with registered office in Amsterdam and principal place of business in (1071 GS) Amsterdam at Willemsparkweg 63, listed in the trade register of the Chamber of Commerce under number 84508671.

1.3 Departures from and additions to these Terms are only valid if they are agreed upon in writing.

1.4 We may make changes to these Terms from time to time. In that case, we will notify you in advance. If you do not agree to the new terms, you must stop using the Application.

1.5 Our Application is part of the Shopify ecosystem. As a merchant, you acknowledge that you are bound to Shopify's terms of service (www.shopify.com/legal/terms). Instant reserves the right to invoke (by analogy, if required by the context) any term included in Shopify's terms of service (including future versions thereof).

LICENSE TO USE THE APPLICATION

2.1 Instant grants you a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Application. All intellectual property rights to the Application are exclusively owned by Instant (or, as the case may be, its licensors or suppliers).

2.2 Any page you create through the use of the Application can contain Instant’s branding badge (for example: ‘Built with Instant’, alongside Instant’s logo).

2.3 You may not (i) make the Application available to any third party or (ii) use the Application in a manner that violates the rights of third parties, the law, or in such a manner that is (potentially or actually) harmful to Instant or others.

2.4 Any use of the Application (including the administration of roles and permissions) is your responsibility and at your own risk.

SUBSCRIPTION FEES AND PAYMENT

3.1 Unless Instant has agreed to a free trial period, you owe the monthly subscription amount agreed upon.

3.2 Amounts owed must be paid by you in accordance with the agreed payment terms, in the absence of which a payment term of 14 days applies. You may not suspend any payment or set off any amounts owed.

3.3 If you do not have (or no longer have) a subscription for a fixed term, Instant may change the subscription fee at any time upon giving prior notice.

TERM AND TERMINATION

4.1 The term of the agreement between you and Instant will be equal to the term of the chosen subscription. In case of a subscription for a fixed term, the agreement will automatically renew for an indefinite term and transform into a monthly subscription.

4.2 Instant may suspend or terminate the agreement (your subscription) with immediate effect and without prior notice in case you breach these Terms (including defaulting on payment of any amount owed).

4.3 Each party may terminate the agreement with immediate effect and without prior notice if the other party is declared bankrupt, granted a suspension of payment, or goes into liquidation, is closed down or otherwise ceases, or threatens to cease to carry on its business.

4.4 Upon termination, you will have no right to continue to use the Application. Instant will have no obligation to maintain your account or retain or forward any data to you or any third party (except as required by applicable mandatory law).

4.5 Termination of the agreement, irrespective of its cause, does not affect the validity of the terms that (by their nature) are intended to survive termination. Specifically with respect to Instant’s branding badge (article 2.2 of these Terms): upon termination, unless Instant determines otherwise (at its sole discretion), Instant’s branding badge will remain in place on any page you have created through the use of the Application.

WARRANTIES

5.1 No warranty is given by Instant with respect to the Application, including its availability or fitness for purpose. The Application is provided on an ‘as is’ and ‘as available’ basis.

5.2 Instant may maintain and alter the Application at its own discretion.

INDEMNITY

6.1 You will indemnify Instant, our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim(s), demand(s), loss(es), or damage(s), including reasonable attorneys’ fees, arising out of, or related to your use of the Application.

LIABILITY

7.1 Except in case of intent or gross negligence, the liability of Instant is limited to direct damages up to the aggregate amount that you paid for use of the Application during the three-month period preceding the event giving rise to the liability. Direct damages in the previous sentence shall mean damages that have a direct and immediate result on a person or property and that are the result of an act or omission attributable to Instant. Direct damages do not include special, incidental, indirect, or consequential damages, including losses and damages resulting from loss of use, data, reputation, opportunities, revenue, profits, or procurement of substitute goods or services.

DATA PRIVACY AND CONFIDENTIALITY

8.1 If Instant processes any personal data for which you are the ‘controller’, within the meaning of the General Data Protection Regulation (GDPR), the data processing agreement in Annex I applies. Annex I forms an integral part of the Terms.

8.2 Each party undertakes not to disclose any information it obtains in connection with this agreement which is known to be or can reasonably be assumed to be confidential, in any way to any third party.

APPLICABLE LAW AND FORUM SELECTION

9.1 The Terms, including any documents it incorporates by reference, shall be exclusively governed by and construed in accordance with Dutch law. Any matter, claim or dispute arising out of or in connection with the Terms, whether contractual or non-contractual, is to be governed by and determined in accordance with Dutch law.

9.2 Any dispute arising out of or in connection with this agreement, whether contractual or non-contractual, shall be exclusively submitted to the jurisdiction of the competent court in Amsterdam, the Netherlands.

MISCELLANEOUS PROVISIONS

10.1 The Terms, including any documents it incorporates by reference, constitute the entire agreement between you and Instant and govern your use of the Application, superseding any prior agreements between you and Instant (including, but not limited to, any prior versions of the Terms).

10.2 The failure of Instant to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms, including all terms and conditions and other documents it incorporates by reference, is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the original provision to the fullest extent allowed by law, and the remaining provisions of the Terms will remain in full force and effect.

10.3 Instant will be permitted to assign these Terms (i.e. the agreement with you) without your consent. You will have no right to assign or otherwise transfer the Terms (i.e. the agreement between you and Instant), or any rights or obligations thereunder, to any third party without Instant’s prior written consent, to be given or withheld at Instant’s sole discretion.

ANNEX I – DATA PROCESSING AGREEMENT

This data processing agreement (“DPA”) applies if Instant processes any personal data under the agreement, for which (and to the extent to which) you are the controller (“Controller”) and Instant is the processor (“Processor”) under the General Data Protection Regulation of the European Union (“GDPR”). In case of a conflict between the Terms and this DPA, the latter will prevail.

CONTROL OF THE PERSONAL DATA

1.1 Processor will process personal data for Controller, in accordance with his written instructions (including with regard to transfers of personal data outside the European Economic Area), under his responsibility and in the manner laid down in the Terms. If Processor is required to do so by the GDPR or another (privacy) law it is subject to, Processor may deviate from any instruction by Controller. In such a case, Processor shall inform Controller of that legal requirement before processing, unless that law prohibits such notification on important grounds of public interest.

1.2 Processor will notify Controller as soon as possible if any instruction, in the reasonable opinion of Processor, infringes the GDPR (or other applicable laws).

1.3 Processor will ensure its compliance with the GDPR.

1.4 Controller warrants that the processing of the personal data in accordance with this DPA complies with all applicable (privacy) laws (including the GDPR).

1.5 Processor will, at the request of Controller, make available to Controller all information necessary to demonstrate compliance with this DPA. In this regard, Processor will also allow for and contribute to audits/inspections (up to once a year). Such an audit/inspection will be carried out by a research body that is neutral and an expert in the area of data protection. Controller shall bear any cost in connection with such an audit/inspection, including reasonable costs incurred by Processor. Controller shall also ensure that the research body will keep its findings confidential and provide Processor with a copy of any report generated as a result of an audit/inspection.

PROVISION OF PERSONAL DATA TO THIRD PARTIES

2.1 Controller hereby authorizes Processor to provide or make the personal data available to third parties in order to execute its obligations under the Terms. In this respect, Processor shall inform Controller of any intended changes concerning the addition or replacement of any such third party (thereby giving Controller the opportunity to object to such a change).

2.2 Processor shall ensure that any third party it provides or makes the personal data available to shall be bound by (at least) the same obligations with respect to the personal data described in this DPA (and in particular with regard to providing sufficient guarantees to implement appropriate technical and organizational measures so that the processing meets the requirements in the GDPR). Processor will remain fully liable to Controller for the performance of that third party’s obligations.

ASSISTANCE BY PROCESSOR

3.1 Processor will inform Controller of all requests received directly from data subjects in relation to data subject rights under the GDPR (or any other applicable privacy laws).

3.2 Processor will assist Controller (to the extent possible, necessary, and reasonable) in complying with Controller’s obligations to: (i) respond to requests from data subjects concerning the exercise of data subject rights; (ii) take appropriate technical and organizational measures to ensure an adequate level of security; (iii) report data breaches to the relevant regulator(s) or data subject(s); (iv) perform a data protection impact assessment; (v) consult the relevant regulator prior to a processing that involves a high risk.

CONFIDENTIALITY OF PERSONAL DATA

4.1 Processor will ensure that persons authorized to process the personal data have committed themselves to confidentiality (or are under an appropriate statutory obligation of confidentiality).

SECURITY MEASURES AND DATA BREACHES

5.1 Processor will take all appropriate technical and organizational measures in accordance with article 32 of the GDPR to protect personal data against loss or any form of unlawful processing.

5.2 Processor will inform Controller immediately and, in any case, no later than 48 hours after it has become aware of any breach of security that relates to the processing of personal data.

5.3 Processor will take any measures necessary to limit the (potential) damage of a security breach.

LIABILITY

6.1 With respect to the liability of the parties under this DPA, the relevant provisions of the Terms will apply.

DURATION

7.1 This DPA is entered into for an indefinite period of time and terminates at the moment the agreement ends.

7.2 Upon termination, Processor will at the request of Controller delete or return all the personal data to Controller and delete any existing copies (unless an applicable law Processor is subject to, requires the retention of personal data). With regard to the return of personal data, Controller must indicate its wish for the return of personal data within 30 days after the moment of termination.