Terms & Conditions

1. Definitions

• "Services" means the development, consulting and support work we perform for you.
• "Applications" means software we publish, including apps distributed through the Shopify App Store.
• "SOW" means a statement of work, proposal or order form that describes the Services, fees and schedule, and which incorporates these Terms.
• "Deliverables" means the code, designs, documentation and other materials we create for you under an SOW.
• "Client Materials" means content, data, credentials and assets you provide to us.

2. Use of this website

The website is provided for general information about our business. You may view and print pages for your own use. You may not scrape, mirror or republish the site, attempt to gain unauthorised access to it, interfere with its operation, or use it in a way that breaches applicable law.

Descriptions of services on this website are an invitation to discuss work, not an offer capable of acceptance. Nothing on this website creates a contract for services on its own.

3. Services and statements of work

We provide Services under an SOW signed by both parties. If an SOW conflicts with these Terms, the SOW controls for that engagement. Work outside the scope described in an SOW is a change request, and will be quoted and agreed in writing before we begin it.

Timelines in an SOW are estimates based on the assumptions stated in it, and depend on your timely provision of Client Materials, access, feedback and approvals. Delays on your side extend our dates accordingly.

4. Fees, invoicing and taxes

• Fees, rates and the billing schedule are set out in the applicable SOW.
• Unless the SOW says otherwise, invoices are payable within 15 days of the invoice date.
• Overdue amounts accrue interest at 1.5% per month, or the maximum permitted by law if lower.
• We may suspend work and withhold Deliverables while an invoice is more than 30 days overdue, having given you written notice.
• Retainers are billed in advance. Unused hours do not roll over unless the SOW expressly says they do.
• Fees exclude taxes and third-party costs such as hosting, licences and app subscriptions, which are your responsibility.
• Deposits and amounts for work already performed are non-refundable.

5. Your responsibilities

To let us do the work, you agree to provide the access, materials and decisions we reasonably need, and to do so on time. Specifically, you agree that:

• You will provide accurate Client Materials and any store, repository or third-party access we need
• You own or are licensed to use the Client Materials, and their use by us will not infringe anyone's rights
• You are responsible for the accuracy of content you supply and for your own legal compliance, including privacy and consumer law applicable to your store
• You will nominate someone with authority to give approvals and sign-off
• You will maintain your own backups of production systems, in addition to any we take

6. Intellectual property

Deliverables

On our receipt of payment in full for the applicable SOW, we assign to you all right, title and interest in the Deliverables created specifically for you under that SOW.

Our pre-existing materials

We retain ownership of everything we bring to the engagement or develop independently of it — including our tools, libraries, frameworks, boilerplate, know-how and Applications. Where those materials are embedded in a Deliverable, we grant you a perpetual, worldwide, non-exclusive, royalty-free licence to use, modify and distribute them as part of that Deliverable. You may not extract them for separate resale or licensing.

Open source and third-party components

Deliverables may include open-source or third-party components licensed under their own terms, which pass through to you and are not assigned by us.

Publicity

Unless you tell us otherwise in writing, we may identify you as a client and show non-confidential work in our portfolio and marketing.

7. Applications

Our Applications are licensed, not sold. Subject to these Terms and payment of any applicable subscription fee, we grant you a non-exclusive, non-transferable, revocable licence to use the Applications with the stores you own or operate.

• You may not reverse engineer, decompile, resell or sublicense an Application except where that restriction is prohibited by law
• Your use of an Application is also subject to Shopify's terms, and Shopify may control billing, distribution and refunds
• We may modify, update or discontinue an Application; where we discontinue one, we will give reasonable notice
• Data handled by the Applications is governed by our Privacy Policy

8. Third-party platforms and services

Our work depends on platforms we do not control, including Shopify and our hosting and infrastructure providers. Those platforms change their APIs, pricing and policies, and may suffer outages. We are not responsible for their acts or omissions, and changes they make may require additional paid work to accommodate. Your use of those platforms is governed by your agreements with them.

9. Confidentiality

Each party may receive information from the other that is marked confidential or that a reasonable person would understand to be confidential. Each party agrees to protect the other's confidential information with at least reasonable care, to use it only for the purpose of the engagement, and to disclose it only to personnel and advisors who need it and are bound by similar obligations.

These obligations do not apply to information that is or becomes public without breach, was already known without restriction, or is independently developed. A party may disclose confidential information where legally compelled, having given the other reasonable notice where lawful.

10. Warranties and disclaimers

We warrant that we will perform the Services in a professional and workmanlike manner, consistent with generally accepted industry standards. If a Deliverable does not materially conform to the specification in its SOW, tell us within 30 days of delivery and we will correct it at no additional charge. That correction is your exclusive remedy for a breach of this warranty.

EXCEPT AS EXPRESSLY STATED IN THIS SECTION, THE WEBSITE, SERVICES AND APPLICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY LAW WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PARTICULAR COMMERCIAL RESULT WILL BE ACHIEVED.

11. Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, DATA OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY. OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR AN SOW WILL NOT EXCEED THE FEES PAID BY YOU TO US UNDER THAT SOW IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

These limits do not apply to a party's indemnification obligations, breach of confidentiality, infringement of the other's intellectual property, or liability that cannot be limited by law — including fraud, wilful misconduct, or death or personal injury caused by negligence. Some jurisdictions do not allow certain limitations, so parts of this section may not apply to you.

12. Indemnification

You will defend and indemnify us against third-party claims arising from the Client Materials, from your use of the Deliverables after delivery, or from your breach of these Terms or of applicable law. We will defend and indemnify you against third-party claims that a Deliverable, as delivered by us and used as intended, infringes that party's intellectual property rights. The indemnified party must give prompt notice, allow the other to control the defence, and provide reasonable cooperation.

13. Term and termination

These Terms apply while you use the website, and for the duration of any SOW. Either party may terminate an SOW for material breach if the breach is not cured within 15 days of written notice. Either party may terminate a rolling retainer on 30 days' written notice.

On termination you must pay for all work performed and costs committed up to the termination date. Sections concerning fees accrued, intellectual property, confidentiality, warranties, liability, indemnification and governing law survive termination.

14. General

• Independent contractors — nothing in these Terms creates a partnership, joint venture, employment or agency relationship.
• Non-solicitation — during an engagement and for 12 months afterwards, neither party will knowingly solicit the other's personnel involved in the engagement, except through general public advertising.
• Force majeure — neither party is liable for delay or failure caused by events beyond its reasonable control.
• Assignment — neither party may assign these Terms without the other's consent, except to a successor in connection with a merger or sale of substantially all assets.
• Severability — if a provision is held unenforceable, the rest remains in effect and the provision is modified to the minimum extent necessary.
• No waiver — failure to enforce a provision is not a waiver of it.
• Notices — legal notices must be in writing and sent to the addresses in these Terms.
• Entire agreement — these Terms together with the applicable SOW are the entire agreement between the parties on their subject matter and supersede prior discussions.

15. Governing law and disputes

These Terms are governed by the laws of the State of California, without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

The parties will first attempt in good faith to resolve any dispute through discussion between senior representatives. If it is not resolved within 30 days, the parties submit to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, and each consents to venue there. Either party may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property or confidential information.

16. Changes to these Terms

We may update these Terms from time to time. Changes apply to website use from the date they are posted, and to Services from the start of the next SOW or renewal term. We will update the effective date above, and give notice of material changes.

17. Contact

Questions about these Terms can be sent to legal@mindhive.dev, or by post to: