Terms of Service
Last updated: February 26, 2021
These Nishe Terms of Service (the “Terms of Service”) govern your access to and use of the Nishe Platform, including the website located at www.nishe.shop (the “Website”). These Terms of Service form a binding legal agreement between you (“you” or “Customer”) and Nishe Retail Technologies Inc. (“Nishe”, “us”, “we”, “our”). The term “Customer” refers to the organization that you represent in agreeing to this Agreement. If your account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. The “Parties” refer to Nishe and Customer and “Party” refers to each of Nishe and Customer.
BY USING THE NISHE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MUST IMMEDIATELY CEASE ANY FURTHER USE OF THE NISHE PLATFORM.
YOU REPRESENT AND WARRANT TO NISHE THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF YOU ARE USING THE NISHE PLATFORM ON BEHALF OF ANOTHER PERSON OR ENTITY, YOU HEREBY REPRESENT AND WARRANT TO NISHE THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF SERVICE.
These Terms of Service are agreed to as of your first use any part of the Nishe Platform.
1. Nishe Platform
This section sets out Nishe’s responsibilities to provide access to the Nishe Platform and what you can and can’t do while using the Nishe Platform.
(a) Provisioning of the Nishe Platform. Subject to your compliance with the terms and conditions of this Agreement, Nishe will make the Nishe Platform available to you on the terms and conditions set out in this these Terms of Service during the Term. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the Nishe Platform, and for Permitted Users’ compliance with these Terms of Service.
(b) Restrictions on Use. You will not, nor will you permit others to: (i) use the Nishe Platform to resell or permit timesharing or service bureau use of the Nishe Platform; (ii) use the Nishe Platform to create, collect, send, upload, transmit, store, post, publish, use, process, or otherwise communicate data, information, pictures, videos, audio or other materials or content that: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that you do not have the lawful right to create, collect, send, upload, transmit, store, post, publish, use, process, or otherwise communicate; (C) is false, intentionally misleading, or impersonates any other person; (D) is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual; (E) is harmful to minors in any way or targeted at minors; (F) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (G) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability; (iii) reverse engineer, de-compile or disassemble any component of the Nishe Platform; (iv) remove or obscure any proprietary notices or labels on the Nishe Platform; (v) access or use the Nishe Platform for the purpose of building a similar or competitive product or service; or (vi) perform any vulnerability, penetration or similar testing of the Nishe Platform.
(c) Suspension of Access; Scheduled Downtime; Modifications. Nishe may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under these Terms of Service: (i) suspend your access to or use of the Nishe Platform: (A) for scheduled maintenance; (B) due to a Force Majeure; (C) if Nishe believes in good faith that Customer or any Permitted User has violated any provision of these Terms of Service; (D) to address any emergency security concerns; (E) if required to do so by a regulatory body or as a result of a change in applicable law; or (F) for any other reason as provided in these Terms of Service; and (ii) make any Modifications to the Nishe Platform.
2. User Accounts
This section sets out how Nishe Platform accounts are issued and maintained, and your responsibilities concerning your Nishe Platform account.
(a) Upon Customer’s request, Nishe will issue one account (the “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Nishe Platform (each, a “Permitted User”). You will ensure that Permitted Users only use the Nishe Platform through the Customer User Account. You will not allow any Permitted Users to share the Customer User Account with any other person. You will promptly notify Nishe of any actual or suspected unauthorized use of the Nishe Platform. Nishe reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
(b) You will ensure that all individual users of the Nishe Platform are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Nishe’s rights than those set forth in these Terms of Service.
3. Data; Intellectual Property
This section sets out Nishe and Customer’s rights with respect to each Party’s data in relation to one another.
(a) Except as expressly set forth in these Terms of Service, nothing in these Terms of Service assigns or grants to Nishe any right, title or interest, including any intellectual property rights, in or to your Customer Data. You grant to Nishe a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, use, process, store, collect, disclose, and transmit Customer Data to: (i) provide the Nishe Platform; (ii) improve and enhance the Nishe Platform and for other Nishe offerings; and (iii) produce and generate data, information or other materials that are not identified as relating to a particular individual or Customer User Account (such data, information and materials, the “Aggregated Data”). Nishe may use Aggregated Data for any purpose and without restriction or obligation to you.
(b) Nishe or its licensors retain all ownership and intellectual property rights in and to: (i) the Nishe Platform; (ii) anything developed or delivered by or on behalf of Nishe under these Terms of Service; and (iii) any Modifications to the foregoing (i) and (ii).
(c) All rights not expressly granted by Nishe to Customer under these Terms of Service are reserved.
(b) Personal Information Warranty. You represent and warrant to, and covenant with Nishe that your Customer Data will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable Nishe to provide the Nishe Platform, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Nishe and to or from all applicable third parties.
If you need help or support using Nishe, this section sets out how you can get in contact with us.
Customer will generally have access to Nishe’s technical support services (“Support Services”) through email at email@example.com.
6. Fees and Payment
This section sets out what fees Customers are responsible for when using the Nishe Platform.
(a) Platform Fees. Customer will pay to Nishe certain fees for using the Nishe Platform, which will be set out in an order form or on the Website (“Order Form”, the fees “Platform Fees”).
(b) Payment Methods. If you are required to pay Platform Fees under these Terms of Service, you must provide a valid method of payment to complete the Order Form. You agree and acknowledge that we may bill your payment method in accordance with these Terms of Service and any Order Form.
(c) Late Payments. Customer may not withhold or setoff any amounts due under these Terms of Service. Without limiting Nishe’s other rights, Nishe may suspend your access to the Nishe Platform, if you have not paid the applicable Platform Fees within 30 days of the date that such Platform Fees become due.
(d) Taxes. The Platform Fees set out in these Terms of Service do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms of Service other than taxes based on the net income or profits of Nishe.
(e) Suspension. Any suspension of the Nishe Platform by Nishe pursuant to the terms of these Terms of Service will not excuse Customer from its obligation to make payments under these Terms of Service.
7. Confidential Information
Nishe and Customer might share confidential information with each other – this section sets out the rights and responsibilities of both Nishe and Customer with respect to that confidential information. Except for limited circumstances, everyone must keep each other’s confidential information confidential.
(a) Definitions. For the purposes of these Terms of Service, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into these Terms of Service, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under these Terms of Service: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than these Terms of Service, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
This section sets out your understanding that the Nishe Platform may not always be available, or relied upon.
(a) DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, NISHE DOES NOT WARRANT THAT THE NISHE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE NISHE PLATFORM. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OF SERVICE, THE NISHE PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY NISHE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NISHE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, NISHE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE NISHE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
This section sets out your responsibility to reimburse us for any costs or Losses associated with a claim brought against us that relates to your use of the Nishe Platform.
10. Limitation of Liabilities
This section explains that Nishe’s liability relating to your use of the Nishe Platform is limited to what you’ve paid to use the Nishe Platform, and does not include payment of damages for certain kinds of loss.
(a) AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF NISHE IN CONNECTION WITH OR UNDER THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED (I) THE AMOUNT OF PLATFORM FEES PAID BY YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (II) IF THE PLATFORM HAS BEEN PROVIDED TO YOU WITHOUT THE PAYMENT OF PLATFORM FEES, $100 USD. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF SERVICE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
(b) TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL NISHE BE LIABLE TO YOU: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THESE TERMS OF SERVICE, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(c) Exceptions. The exclusions and limitations in Sections 10(a) and 10(b) do not apply to: (i) your obligations under Section 9; (ii) Losses arising out of or relating to breach of your obligations under Sections 1(b) or 4(b); or (iii) Losses arising out of or relating to a Party’s gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
11. Term and Termination
You agree that these Terms of Service apply as soon as you start using the Nishe Platform, and continue to apply for as long as you continue using the Nishe Platform. If you no longer agree to these Terms of Service, you must stop using the Nishe Platform.
(a) Term. These Terms of Service are effective on the day you first use the Nishe Platform and will remain in effect until terminated by either Party in accordance with the provisions of these Terms of Service (the “Term”). We may terminate these Terms of Service at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the Nishe Platform. You may terminate these Terms of Service at any time and with immediate effect by requesting by email that your Customer User Account be deleted. For greater certainty, if you continue to use any portion of the Nishe Platform that is publicly available after these Terms of Service have been terminated, these Terms of Service will continue to apply to the extent of such use.
(b) Survival. The following Sections, together with any other provision of these Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination of these Terms of Service for any reason: Section 3 (Data; Intellectual Property), Section 4 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Disclaimer), Section 10 (Limitation of Liabilities), Section 11(b) (Survival), and Section 12 (General Provisions).
12. General Provisions
This section sets out additional administrative terms about the agreement created by these Terms of Service.
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Nishe, to the following address: firstname.lastname@example.org; and (ii) if to Customer, to the current postal or email address that Nishe has on file with respect to Customer. Nishe may change its contact information by posting the new contact information on the Website or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with Nishe current at all times during the Term.
(b) Assignment. You may not assign these Terms of Service to any third party without Nishe’s prior written consent. Nishe may assign these Terms of Service or any rights under these Terms of Service to any third party without your consent. These Terms of Service will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(c) Governing Law and Attornment. These Terms of Service and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with these Terms of Service in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service. This choice of jurisdiction does not prevent Nishe from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. You will comply with all export laws and regulations that may apply to its access to or use of the Nishe Platform.
(e) Construction. Except as otherwise provided in these Terms of Service, the Parties’ rights and remedies under these Terms of Service are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms of Service are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
(g) Severability. Any provision of these Terms of Service found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from these Terms of Service and all other provisions of these Terms of Service will remain in full force and effect.
(h) Waiver. A waiver of any provision of these Terms of Service must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. Nishe’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. These Terms of Service constitutes the entire agreement between the Parties with respect to the subject matter of these Terms of Service and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of these Terms of Service and, unless otherwise expressly specified in these Terms of Service, no consent or approval by any party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, NISHE MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING YOU PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY NISHE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO YOU OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) English Language. It is the express wish of the Parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Some of the capitalized terms used in the Terms of Service are defined here, while others are defined throughout bolded and in quotation marks.
(a) “Customer Data” means any data, information, content, records, and files that Customer or any of its Permitted Users loads or enters into, transmits to, or makes available to the Nishe Platform, including but not limited to Personal Information.
(b) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(c) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(d) “Nishe Platform” means: (i) services through which Nishe hosts and makes available through its online platform connecting users with local shops and businesses; (ii) any component or Modification of the services referred to in (i); and (iii) the Support Services.
(e) “Personal Information” means information about an identifiable individual.