Terms & Conditions of Use

Swoop

Terms and Conditions of Use

July 2023

These are the Terms and Conditions of Kuihi Limited registered number 13789115 of 29, Watnall Road, Hucknall Nottingham NG15 7LD(Kuihi) for the use of our service Swoop on https://www.shopify.com/ (Shopify).

1. General

‘Subscriber’ is any person, business or organisation which has entered into a Contract with Kuihi for the provision of Swoop.
‘Swoop’ is a service consisting of a Shopify App, supporting cloud-based infrastructure and native applications such as iOS and Android.
‘The Charge’- The sum payable for the provision of the Swoop to the Subscriber by Kuihi upon these Terms. Once paid it is non-refundable.
‘Contract’ is the legal agreement between Kuihi and the Subscriber for the provision of Swoop.
‘User’- the Subscriber or any person or organisation using the Swoop service purchased by them.
‘Payment’ – is through the payment system on Shopify by the method agreed.
‘Day’- All the days in a week excluding weekends and UK Bank Holidays.
‘User Content ‘- any content that is written, created, edited, originated, uploaded, or shared by the Subscriber using Swoop in any way.
‘UK GDPR’- the UK General Data Protection Regulation tailored by the Data Protection Act 2018.
These Terms and Conditions will represent the whole of the terms between Kuihi and the Subscriber. Any changes to these must be agreed in writing by Kuihi.
It is assumed that the Subscriber is entering the Contract as a business and not a private consumer unless the Subscriber informs Kuihi otherwise.
By entering the Contract, the Subscriber agrees to be bound by these Terms and Conditions. If the Subscriber does not agree with these terms, they must not access or use Swoop.

2. Swoop

To use Swoop the Subscriber must have an account on Shopify.
Kuihi will endeavour to make the description of Swoop as accurate as possible and provided in good faith, but minor amendments will be made over time.
The Subscriber must satisfy themselves that Swoop as described meets its requirements before entering the Contract.
The Subscriber must accept that Swoop as supplied may vary slightly from what is set out initially and by entering the Contract the Subscriber accepts this.

3. The Contract

The Subscriber accepts that they only have a Contract with Kuihi. The Shopify App store and the platform (Shopify)is only a third-party provider.
Shopify has no obligation to the Subscriber to provide any maintenance or support relating to Swoop.
The purchase of Swoop from the Shopify App Store is subject to the terms, laws and policies specified by Shopify. Shopify will accordingly treat any refund requests by the Subscriber in accordance with those laws and policies and Kuihi has no control over this or liability for it.
Beyond as stated above Kuihi will be responsible for all liabilities, costs, expenses, damage, claims and losses that should arise from the failure of Swoop to comply with any warranty given or implied by law.
Shopify has no liability to the Subscriber for any claims relating to Swoop, its access or use including product liability claims, or claims that it fails to conform with any law or regulations including consumer protection laws that apply.
Under the Contract Kuihi provides the Subscriber with a non-transferable licence to use Swoop on these terms. Shopify will have the right to enforce the terms of that licence as a third-party beneficiary.
By entering the Contract, the Subscriber accepts the current terms of Shopify as set out on their website. https://www.shopify.com/legal
Service hosting for Kuihi is provided by Amazon Web Services (AWS) who will also store and process the data of the Subscriber. AWS has no liability to the Subscriber and their service is subject to their terms https://aws.amazon.com/service-terms/
Under their terms both Shopify and AWS may change their services in a way that may impact upon Swoop without any liability to Kuihi or their Subscribers. Kuihi has no liability to the Subscriber should this occur.
The whole service is through the internet and subject to its vagaries. All systems will be subject to upgrading, modification, maintenance, and events beyond their control. Neither Kuihi, Shopify or Amazon can guarantee or have any liability for the provision of Swoop and its satisfactory operation for twenty-four hours a day seven days a week.

4. Purchase of Swoop

Swoop is only available for purchase through the Shopify App store.
Kuihi has no control over or liability for the satisfactory functioning of the Shopify App Store or its availability at any time.
Purchase of Swoop and payment will be as required by Shopify.
The Contract for Swoop will continue in thirty-day cycles until terminated by either party in accordance with these Terms and Conditions.
Swoop will be offered at different levels of service and functionality as set out in the Shopify App Store. These will vary over time.
The Subscriber can amend the level of service at any time.
Swoop will offer immediate upgrades of service requested. A new billing cycle will be created for the new level of the service and an allowance made pro rata for the unused days in the previous level of service and Charge paid.
Downgrades of service level will be actioned at the end of the current thirty-day cycle.
The Subscriber will pay the Charge for Swoop every thirty days through Shopify Payments.
All upgrades and downgrades will be in accordance with the current terms from Shopify.
If the payment is not made on the due date, then Swoop will cease to operate for that Subscriber and Kuihi has no liability for any losses or other effects that arise from this situation.

5. The Subscriber’s General Obligations

The Subscriber must not use Swoop for any purposes that are illegal or promote illegal activities in the United Kingdom, the United States of America or if different their own country of residence or anywhere having jurisdiction over their activities.
The Subscriber will not use Swoop or Shopify to post or create any information or material that could be considered abusive, threatening, obscene, pornographic, defamatory, libellous, offensive or be sexually, religious, or racially or otherwise in the opinion of Kuihi offensive.
The Subscriber will not impersonate anyone or party or abuse or harass anybody or organisation.
The Subscriber will not create or post any material or link that could be deemed malicious, false, inaccurate or bring Kuihi or Shopify into disrepute or violate the rights of any living person.
The Subscriber will not Infringe on anyone’s intellectual property rights, violate anyone’s privacy rights, defame, harass, or abuse anyone or any group, impersonate anyone, or otherwise violate the rights of a third party.
The Subscriber and their Users must not do anything that could in the opinion of Kuihi, bring Kuihi, Shopify into disrepute or which violates the rights of any person, business, or organisation.
The Subscriber will not post any financial or personal information of any information deemed sensitive under UK GDPR.
Sensitive data under UK GDPR includes information about racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data biometric data, sex life or sexual orientation, and medical information.
The Subscriber and their Users will only transmit, upload, incorporate financial information and personal data as defined by UK GDPR as required to provide a service or otherwise as allowed under UK GDPR.
It will be the Subscriber’s responsibility to obtain any necessary consents, licences or any other permission required for the use of any information, material, copy or any other matter posted by the Subscriber on Swoop. Kuihi will be under no obligation to check these have been properly obtained and the Subscriber will indemnify Kuihi against any claims arising from their use.
Kuihi will have the final decision as to if the Subscriber is in breach of any of their obligations in these terms.

6. The Subscribers Technical Obligations

Any delay in the provision of Swoop arising from the failure of the Subscriber to perform its obligations shall not be the responsibility of Kuihi and the Subscriber shall accept this.
Subscribers and their Users will not attempt to compromise the security of the application or service.
The Subscriber and their Users will not use automated tooling to use or gather information from our applications, websites, or services.
The Subscriber and their Users may not use the service for forgery, deception, phishing or any other action with malicious intent or outcome.
The Subscriber and their Users will not send electronic marketing messages or SMS/MMS text messages for spam, scams or other deceptive practices.
The Subscriber and their Users must not make, action, use or otherwise cause or potentially cause (by automated or other means) a disproportionally large or unreasonable load on any servers, system or network infrastructures connected to Swoop, Shopify, or the system, or take any action that Kuihi consider could have this effect.
The Subscriber and their Users will not create, publish, or link to any malicious or potentially malicious content that could damage or disrupt Swoop, their servers or any other Subscriber or user's browser, computer, or system.
Kuihi will have the final decision as to if the Subscriber is in breach of any of their obligations in these terms.

7. User Content

The Subscriber is solely responsible for all activity and any User Content that arises from the use of Swoop.
This will include any customised data fields and metadata created using Swoop.
This will apply to content whether or not shared privately or publicly.
The Subscriber will not use or share content that is subject to intellectual property rights including copyright without the necessary consents from the owner of those rights.
The Subscriber will not use or share any content that is subject to any third-party rights, privacy rules, data protection laws or otherwise without having the appropriate permission to use that content in that way.
Kuihi has the right to decide if any User Content complies with these Terms and Conditions and if necessary, work with Shopify or otherwise to remove such User Content.
Kuihi can terminate the Contract if it deems the Subscriber is in breach of these Terms and Conditions or any other laws.
The Subscriber is solely responsible for the content, timing and distribution of any communications made as a result of the User Content and ensuring that they comply with all relevant laws and regulations.
The Subscriber accepts that any liability, loss, or damage that occurs from any User Content in any way is their sole responsibility and Kuihi has no liability.

8. The Obligations of Kuihi

Kuihi will act in good faith to provide the Services to the Subscriber with the information provided to them by the Subscriber and if appropriate in the public domain. They do not however provide any warranty that Swoop, and its delivery are complete, suitable for their purpose, accurate or capable of working with any particular integration or third-party services.
Kuihi excludes all warranties express, implied or legal regarding the service including its merchantability, fitness for purpose, security, accuracy.
Kuihi accepts no liability for any issues caused by faults in the information disclosed to Kuihi. This includes omissions, inaccuracies whether intentional or otherwise by the Subscriber.
All Services will be in accordance with the rules and laws applicable at the point of delivery. All rules and laws change over time and whilst Kuihi will endeavour to keep Services fully up to date, they will not accept liability for problems that occur due to changes post-delivery.
Kuihi makes no warranty that access to the service will be uninterrupted or free of errors. This can be due to issues totally beyond their control. Kuihi has no responsibility for any loss including the loss of files and downloads that arises from problems with the service or otherwise the use of Swoop.
The provision of Swoop is dependent on the services of other organisations apart from Kuihi. Should any of those organisations change their service so that Kuihi does not operate properly or as described Kuihi has no liability for any costs, losses or damages incurred by the Subscriber as a result. Kuihi will however attempt to find a resolution to the situation so that Swoop operates in the changed circumstances.
All disclaimers of warranty in these terms and conditions apply where not limited or barred by the local jurisdiction.

9. Support

Support will be provided within the Swoop app and via email. Additional support may be offered through other channels on a one-off basis if agree individually between the Subscriber and Kuihi.
Kuihi will aim to respond to all queries by the end of the next working day, but this is not guaranteed.
The support offered by Kuihi for the use of Swoop is subject to reasonable use by each Subscriber.

10. The App Provider

Any App Store has no liability to the Subscriber for any maintenance and support services.
If the Subscriber purchases, downloads or acquires Swoop through a third-party app store or the Shopify App Store the contract is with Kuihi.
The Subscriber must comply with any Terms of use provided by the App Provider.
The App Store is only liable for any warranty it may issue to the Subscriber and will deal with any refund requests in accordance with the applicable law and its own policies.
Beyond the scope of any warranty any claims for losses, damages, costs, and expenses must be directed at Kuihi.

11. Information

Kuihi has no responsibility for any online content or learning features. All information is for general information only. Use of the information is at the Subscribers own risk.
Some information is provided by third parties and Kuihi has no responsibility for the accuracy or completeness of such information.
Any information provided may be changed or removed without notice.

12. Links to other Websites

Use of Swoop will involve links to third party websites. These may provide support documents.
Swoop may contain other content, applications, integrations and software and links to any of these (all jointly called the Content) may be provided that belong to a third party.
Kuihi has no control over any third-party websites or Content and gives no warranty as to their use. Kuihi provides no endorsement or approval of such Content.
The Subscriber must satisfy themselves as to the accuracy and relevance of the websites and Content. They must read the terms and conditions and any privacy policy of such third parties.
If the Subscriber downloads any documents, applications, or software from any third-party website, it does so at its own risk.

13. The Charge

The Charge will be the fees set out in the Shopify App Store.
The Charge may be subject to change over time and no particular Charge is guaranteed.

14. Termination

This Contract will terminate immediately should the Subscriber commit a material breach of the Contract or these Terms and Conditions including non or late payment of the Fee.
Kuihi has the right to terminate the contract at any time at their discretion.
The Subscriber can cancel the service at any time by uninstalling Swoop. Normally Shopify will then take no further payments.
If the Subscriber cancels the service near to the end of the billing period Shopify may take the next payment but a refund will be dealt with by Shopify in accordance with their current terms.
No refunds of the Charge will be made for unused days of the Swoop service however terminated.
Termination of the Contract will not affect any rights or remedies that have accrued to Kuihi to the date of termination.

15. Limitation of Liability

Should Kuihi be prevented, hindered or delayed from performing their obligations under the Contract by circumstances outside of their control (including without limitation acts of God, flood, drought, earthquake, other natural disasters, epidemic or pandemic, a terrorist attack, war, civil commotion or riots, war, the threat of or preparation for war, armed conflict, the imposition of sanctions, embargo or breaking off diplomatic relations, nuclear, chemical or biological contamination, any law or action by government or public authority, the collapse of buildings, fire explosion or accident, any labour dispute or strike, non-performance by suppliers or subcontractors, interruption or failure of utility service, any action or order from the government or travel restrictions) Kuihi shall be relieved from performing their obligations and will not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations.
The liability of Kuihi to the Subscriber shall not exceed the Charge paid to them over the previous twelve-month period.
Kuihi is not liable for any indirect or consequential losses to the Subscriber or any third party.
The Contract is exclusive to the Subscriber and no third party shall have any rights under that Contract.
Kuihi has no liability for any loss of profits, goodwill, reputation, special or indirect losses or any other business losses.
Swoop is provided without warranty of any kind where this is allowed by the applicable jurisdiction. Kuihi does not warrant that Swoop is merchantable, suitable for purpose, secure, accurate, or capable of operating with any particular third-party services.
Kuihi does not exclude liability for death or personal injury caused by the negligence of Kuihi or their employees, agents or subcontractors or fraud or fraudulent misrepresentation or any other liability that cannot be excluded by law.
Kuihi will have no liability where any of the Services are provided by a third-party supplier as they have no control over their actions and the provision of their services.
If the Subscriber enters a contract directly with any third-party supplier or downloads or purchases any product or otherwise from them, they must rely on any warranty or guarantee supplied by such supplier.
The Subscriber is liable for any reasonable costs, liability, damages, loss, claims, or proceedings arising from any claim against Kuihi arising from the actions of the Subscriber or their User Content and will indemnify Kuihi against all costs and expenses arising from such claims.
The Subscriber is liable for any claim, loss or damage that occurs as a result of any User Content that they create, make available or access through the use of the Service.
Kuihi has no liability to monitor, filter or otherwise pre-screen any User Content and has no liability for any public display or misuse of User Content. Kuihi does however reserve the right to monitor or record the use of Swoop as it deems appropriate.
In the event of a dispute between Subscribers to Swoop this will be purely a matter for the parties and Kuihi has no liability or an obligation to either party.

16. Liability of Subscriber

The Subscriber will have sole liability for the User Content it produces through and on Swoop.
The Subscriber may allow Users within their organisation or business to use Swoop. The Subscriber remains responsible for such Users compliance with these terms and any breach that may occur.
The Subscriber is responsible for any use or access to Swoop under their subscription however it arises whether it is authorised by them or not.
The Subscriber must ensure that they and their Users do nothing to infringe on the intellectual property of any third party through their user content or otherwise and must inform Kuihi within seven days if any such complaint is made.
The person or organisation paying the charge and entering the Contract will be the Merchant and their staff they allow to use or who otherwise uses Swoop through them will be their Users. The Merchant is liable for all acts and omissions of their users and themselves whether they are negligent or not and will indemnify Kuihi against all costs, claims and damages arising from the actions of their users.
One subscription is provided for one Shopify store. The number of Users on any subscription will depend upon the plan purchased. However, every subscription is subject to reasonable use and the Merchant must ensure that the number of Users and the emails and notifications generated are kept to a reasonable number in relation to the plan purchased.
The Subscriber is responsible for the security of their data and maintaining the security of their subscription.

17. Intellectual property

All copyright, trademarks and all other intellectual property rights in Swoop, copyrights, trademarks, documents, materials, code, or copy shall remain always vested in Kuihi. Any attempt to copy any code, documents, or materials, or reproduce, transmit, publish, display, exploit, or create derivative items shall render the Subscriber liable for damages.
The Subscriber accepts that some names and Content used in Swoop may be the intellectual property of a third party and are used on the owner’s conditions. These must not be used by the Subscriber in contravention of such conditions.
If the materials supplied by Kuihi are used by a third party for any purpose, not in the Contract the Subscriber will be liable to Kuihi for damages and any legal costs. They must take appropriate steps to ensure such use ceases immediately.
Should the Subscriber receive any claims from a third party that their use of Swoop infringes that third party’s Intellectual Property Kuihi must be informed immediately and cooperate with any such claim to a conclusion.
By using any User Content on Swoop the Subscriber warrants that they have the irrevocable right to use that content in that manner and will indemnify Kuihi against all complaints or costs arising from such use.
The Subscriber will own the intellectual property in all User Content it creates so far as it is not owned by a third party.

18. Intellectual property complaints

Kuihi will always respect the intellectual property rights of others and the Subscriber must do likewise in connection with its use of Swoop.
Kuihi will terminate access to the Subscriber if they consider they have used content in breach of the rights of others without necessary consents.
If anyone believes in good faith that any User Content or other content on Swoop breaches their legal rights, they must inform Kuihi in writing as soon as possible.
Such notice must specify details of the copyrighted work that they believe has been infringed and the content they believe is infringing this. The provider of the notice must give full contact details and confirmation that they believe in good faith that their claim is correct. Kuihi then has the right to take down the material complained about on Swoop.
If the Subscriber believes the content does not infringe any copyright or that they have permission, they must inform Kuihi as soon as possible and provide evidence of this. The Subscriber must give full contact details and confirmation they are acting in good faith. These details will be passed to the original complainant.
Kuihi reserves the right to reinstate the content complained about within 10 days of receipt of the counter notice and the complainant will be advised accordingly.
It is then for the complainant to decide if they wish to take the matter further against the Subscriber direct. Kuihi will comply with any legal decision that is made.
Kuihi will always have the final say in what content appears online without any liability to the Subscriber.
Shopify is not a party to any claim by a third party that Swoop, or the Subscribers infringe their intellectual property rights.

19. Confidentiality

Kuihi will keep all information supplied to them by the Subscriber not in the public domain in connection with the services including Swoop private and confidential. This will continue for a period of two years after termination of the Contract. Kuihi may disclose such information to any subcontractor, supplier, or employee to the extent necessary to provide the services and complete the Contract.
Kuihi will not publicise any details of the services including Swoop provided to the Subscriber without having obtained their written consent to do so. However, Kuihi may refer to the fact that they are providing services to the Subscriber in their business materials unless the Subscriber expressly requests that they do not do so. This will include the use of the Subscriber’s logo, trademark, and business name.
The Subscriber will keep all information it discovers about Kuihi and its employees and contractors strictly confidential. This includes information relating to their business methods, practices, employees, contractors and includes all information whether labelled as confidential or not. This continues after termination of the Contract.
Kuihi and the Subscriber may disclose information if required by law, a court or any governmental or regulatory body.

20. Data Protection

All data supplied to Kuihi by the Subscriber will be kept safely in accordance with the UK General Data Protection Regulations (UK GDPR) and general UK legislation as set out in their current Privacy Notice.
The Subscriber will similarly comply with all current data protection legislation when dealing with data regarding Kuihi and in any material they create or post on Swoop.
Kuihi may be required to pass data to Shopify under their own terms and conditions. By using Swoop, the Subscriber is accepting the Terms and Conditions of Shopify and instruction Kuihi to comply with any such requirement.
By using Swoop, the Subscriber accepts that Kuihi has the right to collect, analyse and aggregate data and information relating to Swoop. This will be used to improve and monitor Swoop.
Kuihi will never sell any personal data of Swoop Subscribers or Users.

21. Complaints

The Subscriber must raise any problem or complaint it has with the services including Swoop immediately the issue arises in writing through the current support system provided.
The Subscriber must, in any event, raise any complaint about the services within 14 days of termination of the Contract. If not done Kuihi will have no liability for the event.

22. Notices

Any notice or other communication given to a party under or in connection with these Terms and Conditions shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance and shall be delivered personally, or sent by pre-paid first-class post or other next working day delivery service, commercial courier, or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in the Contract or to such other address (being in the United Kingdom) as the addressee may from time to time have notified ; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Day after transmission.
Documents relating to the service of any proceedings or other documents in any legal action cannot be served by email.

23. Severance

If any part of these Terms and Conditions shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the Terms and Conditions and shall not affect the validity and enforceability of any of the remaining provisions.

24. Waiver

The waiver by Kuihi of a breach, default, delay, or omission of any of these terms or the Contract by the Subscriber will not be construed as a waiver of any preceding or subsequent breach of the same or other provisions.

25. Limitations

Any cause of action related to or arising out of the relationship between Kuihi, and the Subscriber must commence within one year after the cause of action accrues or such cause of action is permanently barred.

26. Transfer

The Subscriber may not transfer any of their rights under the Contract to any third party.
The Subscriber must inform Kuihi of any change of control. This will give Kuihi the right to terminate the Contract.

27. Amendment to Terms and Conditions

Kuihi reserves the right to amend these Terms and Conditions over time and the current edition will be available on Swoop.

28. Law

These Terms and Conditions are governed by the laws of England and Wales and the courts of England and Wales will have exclusive jurisdiction.

Swoop is made by Kuihi Ltd.