Terms and Conditions

Last modified: October 22, 2024

Binding Contract

These Use Terms are a contract between you and us and govern your use of the CommerceOptimizer Service, which is defined in the Glossary at the end of these Use Terms. These Use Terms describe our commitments to you, and your rights and responsibilities when using the CommerceOptimizer Service. Please read them carefully, and reach out to us if you have any questions.

Agreeing to these Use Terms is a condition of any CommerceOptimizer Service use. You signify your agreement to these Use Terms and are legally bound by them from the date on which you:

Amendments

You agree that we may, in our sole discretion, amend these Use Terms at any time, in any way and from time to time. We will publish details of our proposed amendments to these Use Terms in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Use Terms and the date on which these proposed amendments will become effective.

You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Use Terms regularly in the event that we do publish a notice of proposed changes. Your continued use of the CommerceOptimizer Service (except where your continued use of CommerceOptimizer Service is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Use Terms.

Interpreting these Use Terms

These Use Terms contains a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary, below, contains many of these words and phrases (others are set out in these Use Terms’ body and are designated by terms in quotation marks).

We also apply certain rules when interpreting these Use Terms and the Interpretation Guide, which sets out these rules, is below.

Duration

These Use Terms shall continue to bind you for so long as you make use of CommerceOptimizer Service.

Effects of Termination

In the event these Use Terms are terminated for any reason whatsoever, the following clauses shall survive termination and continue to bind you:

The CommerceOptimizer Service

Our Website details the CommerceOptimizer Service which, broadly, comprises the following components:

We grant you a limited and non-exclusive right to use the CommerceOptimizer Service (subject to any other applicable licenses such as the GPL) solely for the purposes which the CommerceOptimizer Service is intended for and as permitted by the licenses applicable to the CommerceOptimizer Service components. This right is not transferable to any other person unless we agree.

You agree that, except where the nature of the CommerceOptimizer Service requires otherwise, each component of the CommerceOptimizer Service constitutes a separate and distinct service, and we are not necessarily obliged to render two or more components of the CommerceOptimizer Service as a single, indivisible service.

Products

Our products are licensed under the GPL (click here to find out more about the GPL).

Content Use

CommerceOptimizer grants users a Content License in respect of CommerceOptimizer’ Intellectual Property which forms part of the Services.

To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed.

Users are further required, as a condition of this Content License, to clearly and expressly attribute CommerceOptimizer as the Content’s source.

Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event CommerceOptimizer revokes the Content License, users may no longer use the Content.

Changes to the Services

We may change any aspect of the CommerceOptimizer Service on written notice to you. These changes may include discontinuing aspects of the CommerceOptimizer Service or the CommerceOptimizer Service in its entirety. In the event we do make any changes to any aspect of the CommerceOptimizer Service, we will publish updated CommerceOptimizer Service information which shall detail the —

Changes to the CommerceOptimizer Service may, at our sole discretion, require consequential changes to fees payable for and delivery timeframes applicable to the aspects of the CommerceOptimizer Service affected by the changes. We will similarly notify you of any such changes to fees payable or delivery timeframes.

Fees

We reserve the right to modify or discontinue, temporarily or permanently, prices of all products, at any time with or without notice.

Refund Policy

If you have difficulty getting a CommerceOptimizer Service to work, you agree to allow us to try and help solve any issues you have by opening a ticket with our Support Team. In the event, that our support team declares the CommerceOptimizer Service to be broken or unusable we will be happy to provide you with a full refund within 30 days of the original purchase date. After 30 days, no refunds will be permitted.

Your use of the CommerceOptimizer Service you are claiming a refund for will be terminated when you are refunded.

Registration

You may visit our website without registering. However, in order to download any of our products, you will be required to register for an account. When creating an account we will collect your name, address, country of origin and email. If you decide to purchase any of our products, you will also be required to submit your PayPal or credit card information to our third party payment processors. We may also ask you for additional information if necessary.

By registering, you agree and represent as follows:

Once registered, you will be able to log into your account using your chosen usernames and passwords.

You may not impersonate another person and you are required to associate your real identity with your account.

We collect your personal information through the Website’s registration form in order to successfully complete the registration process. We process personal information in terms of our Privacy Policy.

You warrant that your personal information which you submit to us is accurate, current and complete. You also confirm that you have read and understand our Privacy Policy.

You agree that we may deny you use of the CommerceOptimizer Service should you breach your warranty or subsequently be found to have breached this warranty. We may take steps to verify your personal information once you have completed the requisite registration process for the CommerceOptimizer Service and these steps may include, and are not limited to, email verification. You agree to submit to this verification process and irrevocably consent to us gaining access to relevant information held by 3rd Parties which may be reasonably required to complete the verification process. You acknowledge and agree that your access to the CommerceOptimizer Service may be limited until this verification process has been successfully completed.

Should you not agree to our verification process or withhold your consent to us processing your personal information, your CommerceOptimizer Service use may be suspended or terminated.

Without limiting our liability limitation provisions below, you waive any claims you may have against us or our Associates in the event we deny you use of the CommerceOptimizer Service where you have breached these Use Terms or otherwise failed to fulfill your obligations to CommerceOptimizer.

Passwords and Account Security

You agree that the security of their CommerceOptimizer Service user account is solely your responsibility. You further agree that:

Your Privacy

For information about our data protection practices, please read our Privacy Policy. This policy explains how and under what conditions we will process your personal information, and protect your privacy, when you use the CommerceOptimizer Service.

You agree that we may process your personal information in accordance with our Privacy Policy.

Warranties

Except as expressly set out in these Use Terms, we do not make any representation or give any warranties whatsoever with respect to the CommerceOptimizer Service.

You represent and warrant that your use of the CommerceOptimizer Service:

If you are not, factually or legally, authorised to bind another person as our Customer to these Use Terms, you agree that you will be personally liable to CommerceOptimizer for any amounts due to us in terms of these Use Terms or otherwise as a consequence of using the CommerceOptimizer Service in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal CommerceOptimizer Service use.

Liability

Disclaimers and Limitation of Liability

To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the CommerceOptimizer Service and you use the CommerceOptimizer Service at your own risk.

You agree that neither we or our Associates shall be liable for any Losses which you may sustain however arising and whatever the cause, in particular pursuant to your or any 3rd Party’s use of, access to and/or interference with the CommerceOptimizer Service.

You also agree that our liability to you pursuant to these Use Terms shall furthermore be limited to the total amount of the fees you paid for your CommerceOptimizer Service use.

We have not reviewed, and cannot review, all of the items for sale through sites or stores using the CommerceOptimizer Service. We have no control over those stores and are not responsible for their contents. We are not responsible for any use or effects from the sale or purchase of items through a site or store using the CommerceOptimizer Service. So, for example:

Indemnity

You agree to indemnify and hold harmless CommerceOptimizer, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement, Content that you post, and any eCommerce activities conducted through your or another user’s website.

Maintenance and Repair

You acknowledge that from time to time the CommerceOptimizer Service may be suspended, either in part or as a whole, for maintenance, repair and improvements. We agree, wherever reasonably possible, to give twenty-four (24) hours notice of suspension of the CommerceOptimizer Service affected by the proposed suspension. We deal with this in more detail in our Support Policy.

Save as set out elsewhere in these Use Terms or the Support Policy, we shall not be liable for any Losses which may be sustained as a result of the suspension of the CommerceOptimizer Service save as provided for in the Support Policy, where applicable.

Support Policy

What Our Support Service Covers

We only support our products sold on commerceoptimizer.com. Our Support Service includes assistance with Product installations, configuration and use.

Bug Fixing

We will fix any defects in our Products as quickly as possible after they are brought to our attention. We will also try to provide a solution via our Helpdesk for smaller defects or errors as a precursor to a more substantial update to the particular Product as part of our scheduled Product updates. If you think you have found a bug, please let us know.

What Our Support Service Does Not Cover

Our Support Service does not cover our Products supplied by Third Parties who are not our Resellers or Third Party products and services. We may require you to disable Third Party products that are installed alongside our Products before we are able to assist you.

Customisation

We provide our Products as is. While we can help you to configure our products within the capabilities of each product, we do not customise our Products or support any Third Party customisations of our Products. A customisation is anything that changes the way our Products look or function relative to how we make our Products available to you

Product Support Channels

We provide Support Services through our Helpdesk. We do not provide our Support Service through any other channel (including, but not limited to direct e-mail, Facebook, Twitter or over the phone) at this time.

You need to submit a ticket using the Helpdesk to take advantage of our Support Service. We may ask you to send us your login details if we need them to assist you. Our Helpdesk tickets, and information you share with us through these Helpdesk tickets, are confidential. Only you and our support team will see your ticket.

Our general support hours are Monday to Friday, 09:00 to 17:00 (Irish Standard Time, or UTC+1). Although we strive to respond to all queries within 24 hours, our actual response times may vary and we may take longer to respond to more advanced or technical queries.

Rights Infringements

If any person is of the view that his, her or its rights have been infringed through unlawful CommerceOptimizer Service use by any person, that person may address a complaint to CommerceOptimizer which satisfies the following requirements and/or sets out the following information:

Notifications must be addressed to:

CommerceOptimizer Abuse

Email: [email protected]

We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action, where necessary. Such action may include, but is not limited to, removing offending Content and/or taking appropriate steps against offending users or Customers, where appropriate. We may not be able to, or it may not be appropriate for us to, respond to or act on every complaint.

Breach

Subject to any other provision of these Use Terms providing for the remedy of any breach of any provision of these Use Terms, should either Party (“the Offending Party”) commit a breach of any provision of these Use Terms and fail to remedy such breach within 30 days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to:

in either event without prejudice to the Aggrieved Party’s right to claim damages.

We reserve the right to terminate your use of and access to the CommerceOptimizer Service if we determine in our sole discretion that your use violates these Use Terms.

Either Party shall be entitled to summarily terminate these Use Terms in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Use Terms shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.

Governing Law and Jurisdiction

Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the Republic of Ireland. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the courts located in the Republic of Ireland.

Interruption Event

You acknowledge that, from time to time, the CommerceOptimizer Service may be suspended due to causes beyond our control which we refer to as Interruption Events.

You agree that we will be relieved of our obligations in terms of these Use Terms during the period that the Interruption Event and its consequences continue, only to the extent we are reasonably prevented from fulfilling our obligations, and we shall not be liable for any Losses which you may suffer as a result.

We will make reasonable efforts to notify you of an Interruption Event in writing as soon as we become reasonably aware of the Interruption Event.

In the event that an Interruption Event exceeds 2 calendar months and in the event that neither we or our nominee are able to provide alternative services and/or facilities, either you or we may terminate these Use Terms and shall only remain liable for performance under these Use Terms which fell due immediately prior to the Interruption Event.

Assignment

By users or you

Users or, where appropriate, you shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Use Terms except with our prior written consent. We will not unreasonably withhold our consent.

By CommerceOptimizer

We are entitled to cede, delegate, assign or otherwise transfer all or any of our rights, interests or obligations under and/or in terms of these Use Terms subject to us giving you reasonable written notice to that effect.

Severability

If any court which has jurisdiction finds any clause or term of these Use Terms to be unenforceable, then the Parties agree that the remaining terms and provisions of these Use Terms shall be deemed to be severable from the unenforceable provisions and shall continue in full force and effect unless such unenforceability goes to the root of these Use Terms, in which case these Use Terms shall terminate.

General

These Use Terms, as read with the documents referenced in these Use Terms, constitute the sole record of the agreement between the Parties in regard to its subject matter.

No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Use Terms.

No addition to, variation or consensual cancellation of these Use Terms, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.

No data message, including an e-mail, SMS and recorded voice message, which you send to us shall amend these Use Terms or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Use Terms or the Parties’ rights and duties in any material respect.

No indulgence which any of the Parties (“the Grantor”) may grant to any other (“the Grantee(s)”) shall constitute a waiver of any of the Grantor’s rights, who shall not be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.

The Parties undertake at all times to take all reasonable steps to implement and comply with these Use Terms.

Interpretation Guide

In these Use Terms, headings are for convenience and are not intended to be used to interpret the Use Terms.

If the Use Terms refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Use Terms will also be applicable to and binding on that Party’s liquidator or trustee, as the case may be.

Unless these Use Terms indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.

The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Use Terms, shall not apply.

Where in these Use Terms provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Use Terms or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.

The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.

All annexures, addenda and amendments to these Use Terms form an integral part of these Use Terms and, therefore, our contract with you.

The words and phrases in the Glossary and, where appropriate, elsewhere in these Use Terms bear the meanings assigned to them and related expressions bear corresponding meanings.

Glossary

“3rd Party” means a person other than CommerceOptimizer and a Customer;

“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;

“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what a Customer may have access to as part of, or through the Customer’s Service use;

“Content License” means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Use Terms and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent;

“Customer” means the person contracting with us to use the CommerceOptimizer Service subject to these Use Terms and is either:

“GPL” means the GNU General Public License, version 2 (or later) from the Free Software Foundation;

“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;

“Intellectual Property Rights” means legal or moral rights in Intellectual Property;

“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;

“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Use Terms by reason of an Interruption Event;

“Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);

“Parties” means CommerceOptimizer and the Customer;

“Products” means the CommerceOptimizer products which are made available through the Website and which are described in the Website;

“Subscription” means any CommerceOptimizer Service that is offered on a recurring basis for a designated period, whether free or paid.

“Support Policy” means the terms and conditions establishing our minimum support undertakings in respect of the Services and located here;

“Support Service” means our Product support and update service described on the Website;

“use” bears its ordinary meaning and when used in the context of:

“user” means a person who is not a Customer and who uses the CommerceOptimizer Service or the Website;

“Use Terms” means these terms and conditions, as amended from time to time;

“VAT” means Value-Added Tax;

“Website” means the CommerceOptimizer website located at https://www.commerceoptimizer.com or such other websites as may be associated with and controlled by CommerceOptimizer from time to time;

“CommerceOptimizer”, “us”, “we” and “our” means or refers to MadeInContext Ltd. trading as CommerceOptimizer, a company duly registered and incorporated in accordance with the laws of the Republic of Ireland and with company number 548016.

“CommerceOptimizer Service” means the Content, Products and Support Service, as defined in these Use Terms, either collectively or in any combination.