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Terms of use

LEGAL NOTICE AND GENERAL CONDITIONS OF USE OF THE WEBSITE

1. IDENTIFICATION OF THE HOLDER

This website www.eshopbrainiac.com, (hereinafter, the Website) is owned by ESHOPBRAINIAC, S.L.(hereinafter, eShopBrainiac), holder of Tax Identification Number B-44800704 and registered in the Companies Register of Barcelona with the following registry details: volume 48699, folio 62, sheet b 593013, entry 1and whose contact details are:

  • Registered Office: Calle Agricultura 24 (local), 08320 Masnou, Barcelona (Spain)
  • Contact email: hello@eshopbrainiac.com

2. SCOPE OF APPLICATION

These General Conditions of Use of the Website (hereinafter, the Conditions of Use) set out the terms and conditions governing access to, browsing and use of the Website.

In this sense, accessing, using and browsing the Website confers the status of user(s) (hereinafter, the User or Users), and implies acceptance of each and every one of these Conditions of Use. The User is fully aware that the mere browsing of this Website implies acceptance of these Terms of Use and, therefore, if the User does not agree with them, he/she should not use this Website.

eShopBrainiac has its residence in Spain and therefore does not ensure that the Website complies with the legislation of other countries, either wholly or partially. If the User resides or is domiciled elsewhere and decides to access and/or browse the Website, he/she shall do so at his/her own risk, and shall ensure that such access and browsing complies with the local legislation applicable to him/her, eShopBrainiac not assuming any liability whatsoever that may arise from such access.

eShopBrainiac may, at any time and without prior notice, modify these Terms of Use, which will be published as and when such modifications are made.

3. CONDITIONS OF ACCESS AND USE

Access to the Website by the User is, as a general rule, free of charge. In the event that there are functionalities or services reserved for certain Users (for example, because it is necessary to pass a registration process) or for the payment of a price, these will be duly identified on the Website.

You must be of legal age and have sufficient legal capacity to be bound by these Terms and Conditions. Therefore, this eShopBrainiac website is not intended for minors. eShopBrainiac disclaims any liability for failure to comply with this requirement.

Access to this Website is at the sole responsibility of the User, and does not imply any type of commercial relationship between eShopBrainiac and the User. The User is responsible for ensuring that the information and content included on the Website meets his or her specific requirements.

The User undertakes to: i. Access and use the Website in good faith and in accordance with these Terms of Use, the Law, morality and public order.

ii. Provide truthful, current and lawful information in the forms offered on the Website. In any case, the User shall immediately notify eShopBrainiac about any fact that allows the misuse of the information recorded in these forms, such as, but not only, the theft, loss, or unauthorized access to identifiers and/or passwords, in order to proceed to their immediate cancellation.

iii. Not to carry out any action on the Website that may cause damage or alterations to the contents, programmes or systems of the Website, including the introduction of computer viruses, the installation of robots, or any software or file that is harmful, defective, or that may cause damage to our computer systems.

The User shall be liable in any case for any damages that may be caused to eShopBrainiac and third parties and eShopBrainiac may take technical, legal and any other measures it deems appropriate to prevent, mitigate or stop the consequences of the above prohibited conduct and to demand any liability deemed appropriate.

4. INTELLECTUAL AND INDUSTRIAL PROPERTY

All the contents of the Website, including, but not limited to, texts, images, photographs, videos, graphics, distinctive signs of any kind, icons, interfaces, as well as the software, source code, designs, architecture, presentation, layout and classification of the contents and any other element present on the Website that may be subject to intellectual property rights are the exclusive property of eShopBrainiac or of third parties who have licensed, authorised or consented to their use on this Website.

In this regard, when the User accesses, browses and uses this Website, no exploitation right that exists or may exist on all or part of the Website is conferred on the User, and eShopBrainiac reserves all these rights. The User may only view the elements of the Website and use them to the extent strictly necessary for the correct use of the Website. In particular, it is forbidden to use or resell for commercial purposes any material or content present on the Website without the prior authorisation of eShopBrainiac.

eShopBrainiac reserves the right to modify, at any time, and without prior notice, the presentation and configuration of the Website and the contents and services that may be incorporated therein. The User acknowledges and accepts that at any time ESHOPBRAINIAC may interrupt, deactivate and/or cancel any of these elements that are integrated into the Website or access to them.

If the User considers that any of the contents of the Website is a violation of the rights of protection of intellectual property, he/she must immediately inform eShopBrainiac through the contact details in section 1 (Identification of the Owner) of these Terms of Use.

5. EXCLUSION OF WARRANTIES AND LIABILITY

The information published on the Website may not be exhaustive or fully updated, and eShopBrainiac assumes no liability for the lack of completeness, updating or accuracy of the data and information contained in the various pages that form part of the Website.

eShopBrainiac does not guarantee that access to this Website will be uninterrupted or error free. Neither does eShopBrainiac guarantee that the content or software present on the Website will not cause damage to the User's computer system (software and hardware). eShopBrainiac shall not be liable for any loss, damage or harm of any kind arising from accessing, browsing and using the Website, including, but not limited to, that caused to computer systems or that caused by the introduction of viruses.

eShopBrainiac is likewise exonerated from any liability arising from improper use of this Website by the User.

Users are informed that the Website may contain, among others, links, banners, buttons, directories and search engines that allow Users to access websites belonging to and/or managed by third parties and which are therefore beyond the control of eShopBrainiac, who cannot assume responsibility for the content appearing on these pages.

In the event that you consider such content to be inappropriate or contrary to the purposes of eShopBrainiac, please bring it to our attention via the contact details above, so that we may take appropriate action.

7. APPLICABLE LAW AND JURISDICTION

These Terms of Use and their execution are subject to Spanish law.

If any dispute arises as to the interpretation or application of these Terms of Use, the parties shall negotiate in good faith in an attempt to resolve any such dispute or claim. However, in the event that the dispute or claim is not resolved, the Parties shall submit to the appropriate courts or tribunals in accordance with the law.

Last modified: February 2024

App terms of use

GENERAL TERMS AND CONDITIONS OF SERVICES

These General Terms and Conditions (Terms & Conditions) constitute the regulatory framework for the contracting and provision of the services indicated in Clause 1 (the Service(s)) between ESHOPBRAINIAC, S.L. (hereinafter, eShopBrainiac or the Company) and any individual or entity accessing and/or contracting the Services (the User(s)) available through Shopify's application shop or App Store (https://apps.shopify.com/ale=es) (the App or Application).

The User, at the time of accessing our App and purchasing any of our products or Services, acknowledges having read, accepts to be bound by and to fulfil these Terms & Conditions, as amended from time to time in accordance with Clause 13, as well as the Terms of Use and Privacy Policy, which shall be complementary to these Terms & Conditions (together, the Agreement).

eShopBrainiac may establish with its Users particular or specific conditions governing their relationship (the Particular Conditions). In such cases, the Particular Conditions shall prevail over these General Terms and Conditions.

In any case, the Company reserves the right to replace, modify, extend, or reduce the catalogue of services and products offered through its App.

The User acknowledges that he/she has sufficient legal capacity to enter into a contractual obligation.

1.DESCRIPTION OF SERVICES

1.1. eShopBrainiac, through its Application, allows Users to optimise their online shop, providing information on how the public interacts when they visit the website, which are the most searched products in the shop, as well as any other type of information that is relevant and significant for your business. All this, with the aim of offering you focused analytics for strategic decision making and, thus, increase sales through your online shop.

By way of example but not limitation, eShopBrainiac’s App allows its Users to do the following:

  • Obtain focused and meaningful analytics or metrics for strategic decision-making;
  • Obtain relevant information to analyse how the business is interacting online;
  • To be able to use personalisation strategies to increase conversion;
  • Seizing opportunities by turning them into business.

1.2. The App is available on Shopify's App Store(https://apps.shopify.com) and, therefore, in order to access and/or use our Services, it will be necessary for the User to use the Shopify platform.

2.REQUIREMENTS PRIOR TO THE AGREEMENT OF SERVICES

2.1. Requirements

2.1.1. The Services may only be contracted through the App by individuals of legal age and with sufficient legal capacity to contract. If the User is a legal entity, the individual who accepts these Terms & Conditions guarantees that he/she is authorised to accept them on his/her behalf and to bind, in all its aspects, the User or owner of the online shop.

eShopBrainiac reserves the right to refuse the Services or immediately resolve the Agreement with a User if the User does not fulfil the age requirements or has insufficient legal capacity to contract or if the User has previously breached these Terms & Conditions.

2.1.2. In order to access and/or use the Services, the User must have a permanent Internet connection and use the Shopify platform. Therefore, it is the overall responsibility of the User to have the appropriate system and electronic devices in place to access the Services and to obtain the infrastructure and enter into all agreements with third parties to be able to use all connections necessary to enjoy the Services.

2.2. Login and access to the App

2.2.1. Access to the Services shall require the User to have an account or shop on the Shopify platform.

2.2.2. In order to access the eShopBrainiac’s App, the User must enter the domain of his online shop to install the App. Before proceeding with the installation of the App, the User will be informed that, to access and/or use the Services, eShopBrainiac needs access to a series of data that may contain personal data or other data relating to the online shop.

Any personal data that may be accessed by eShopBrainiac shall be processed in accordance with the provisions of Clauses 8 and 9 of this Agreement.

2.2.3. When the User accepts the installation of the App, i.e. clicks on the Install button, he/she will have access to these Terms & Conditions, which he/she must read and accept in order to install the App.

2.2.4. Once the App has been installed, the User will have access to the different plans or modalities available (the Plan(s) or Subscription Plan(s)) and must choose the Plan that best suits his/her needs.

2.2.5. Once the App has been installed and the User has acquired the Subscription Plan, it should be noted that it may take 24-48 hours for data to be processed.

Additionally, it should be considered that data processing does not take place on public holidays and weekends. Therefore, access to the Services will not be possible until the data has been fully processed.

3.MODALITIES OF ACCESS TO SERVICES

Access to the Application, in general, is free of charge. However, to obtain the Services offered by eShopBrainiac, it will be necessary for the User, as a general rule, to contract one of the available Subscription Plans.

Here are the ways to access the Services:

3.1. Subscription Plans

3.1.1. The User may choose between different types of Subscription Plans available, which are explained in detail at the following link[ Pricing Plans].

3.1.2. The existing Plans and the rates applicable to each are based on the number of orders that can be processed every 30 days. Consequently, depending on the type of Subscription Plan contracted, the User may be able to process a greater or lesser number of orders.

3.1.3. The available Plan arrangements are based on a fee for 30-day periods which, depending on the applicable tariffs at any given time, allow the number of orders indicated therein (Fee) to be processed.

3.1.4. The User may access, at any time, the information relating to each Subscription Plan, including the name of the Plan, Fee, the number of orders available, as well as the balance used and the remaining balance.

3.1.5. Any changes to Subscription Plans, whether to a superior or inferior Plan, may take up to 24 hours to be updated.

Consequently, once your Subscription Plan has changed, it may take up to 24 hours for the data to be processed.

3.2. Operation of Subscription Plans

3.2.1. The Plans and the Fee are associated with the number of orders that can be processed during the 30 days.

For example, if the User contracts the Start Plan, the App will allow the processing of a maximum of 50 orders. This means that, during 30 days, the App will process all the data associated with your online shop, provided that the maximum number of orders associated with your Plan, i.e. 50 orders, is not exceeded.

3.2.2. If the maximum number of orders for the contracted Plan has been exceeded, the User shall have the following options:

(i) Increase the App Spending Limit;
(ii) Wait for the start of the next period to continue enjoying the Services; and
(iii) Switch to a higher Subscription Plan.

“App Spending Limit" shall mean the additional amount that the User may pay if the number of orders to be processed during the 30-day period has been exhausted. Such payment will allow a greater number of orders to be processed depending on the amount or additional amount paid.

3.2.3. In the event that the App Spending Limit paid for is exhausted, the User will still be able to view the data generated up to that point, but no new orders will be processed until the User carries out one of these actions:

(i) Increase the App Spending Limit. The new or additional App Spending Limit increase will be used to cover the remaining orders for that month; or
(ii) Upgrade to a higher Plan or Upgrade. If the User chooses to upgrade to a higher Plan, eShopBrainiac will deduct from the Fee the excess between the orders that have been paid for and the orders that have not been processed.

For example, if, on the 15th, the User consumes the 50 orders of his Plan and pays an extra 10€. If each extra order costs 2€, the User would get 5 extra orders.

If we reach day 25, the User has consumed all the extra orders, i.e. 55 orders in total. The User would have 2 orders that are not being processed. Therefore, if he/she decides to change to a higher Plan, eShopBrainiac will reduce the 2 extra orders that have not been processed and, therefore, the User will start with 0 orders from the 25th day and will have the 100 orders of the higher Plan to consume until the 25th of the following month.

If the User benefits from the reduction of the surplus and proceeds to change to a lower Plan, without two (2) months having elapsed since benefiting from the surplus, the benefit obtained will be lost and the extra orders reduced from the contracted Plan will be deducted.

Returning to the previous example, if the User had benefited from the 2 extra unprocessed orders and, without two (2) months having elapsed, changed to a lower Plan. The Company would deduct the 2 extra orders from the 50 orders that he/she had placed in the lower Plan. Therefore, you would only have 48 orders to consume during the 30-day period.

3.2.4. If the User chooses neither to increase the App Spending Limit nor to change to a higher Plan, but to wait for the next 30-day period to start, the data will not be processed until the start of the new period. At this point, the orders that could not be processed and those of the new period will be considered.

For example, in the event that the User has contracted the Start Plan and the 50 orders for the month of January have been used up, in addition to which, for example, 10 orders have not been processed.

At the beginning of February, the 10 orders that could not be processed will be deducted from the 50 orders available for February. Consequently, the User will be able to process the remaining 40 orders during February.

3.3. Changes in Subscription modality or Plans

The User shall always have the option to modify the Subscription Plan to a higher or lower Subscription Plan from the Settings section.

In this respect, the following changes to the Subscription Plan are permitted:

(i) Upgrade. The User may change the subscription mode or plan to a higher plan, e.g. from a Start plan to a higher or Grow plan that allows the User to process more orders or, where applicable, the use of additional functionalities.
The charge will be pro-rated according to the price difference and the number of days remaining in the billing cycle. For example, if you start a 30-day billing cycle on a 5€ plan and then upgrade to a 15€ plan on day 15 of the billing cycle, you will be charged 5€+(15 - 5) * (15/30) = 10€.

(ii) _ Downgrade_. The User may change the Subscription mode or plan to a lower plan, for example, from a Grow plan to a Start plan, implying the limitation of the number of orders to be processed or, if applicable, the restriction to some additional functionalities.

When the User switches from a more expensive charge to a lower charge, the User is automatically offered an application credit based on the price difference and the number of days remaining in the billing cycle.

3.4. Free Access

3.4.1. eShopBrainiac, in its sole discretion, may offer certain Users a limited period of free access to certain Services, for the selected Users to provide comments, ideas or suggestions to the Company in connection with the Services (the Feedback).

It is at the sole discretion of eShoBrainiac to establish which projects and/or services can benefit from Free Access, in case it is enabled, it will be indicated in the App which Users can benefit from it. As a general rule, this period of Free Access or also called Early Adopters will be provided to the first clients. However, in no case is it mandatory for eShopBrainiac.

3.4.2. Free Services shall be limited to specific projects and/or services, as well as to the period of time indicated by the Company in order to improve the services offered by the Company. Therefore, the User is welcome to provide Feedback when deemed appropriate.

In any case, the relationship between the parties shall be subject to the previously agreed Special Conditions.

3.4.3 The User acknowledges and agrees that the Feedback is confidential and authorizes eShopBrainiac to use it or not for the improvement of the Services. In no event shall the Company be required to pay any amount for the Feedback provided, nor shall it be subject to payment of compensation.

3.4.4. Once the Free Access period has expired, the User must subscribe to one of the available Subscription Plans in order to continue accessing the Services.

3.4.5. eShopBrainiac, at any time and without prior notice, may terminate Free Access to Users, at its sole discretion.

4.FEE AND TERMS OF PAYMENT

4.1. The price or Fee

4.1.1. The price and type of each available Plan will be indicated at the time of contracting. Generally, the available Plan types are based on a fee for 30 days (Fee), according to the applicable tariffs at any given time, which will be renewed for the same period if the User does not cancel the Subscription Plan.

4.1.2. The User may also adapt and customise its Plan, adding functionalities in the Services or extending existing limitations, which will affect the final Fee payable by the User.

4.1.3. The price of the Fee payable by the User will be indicated at the time of contracting, based on the current rate, applicable taxes, and any applicable discounts.

4.1.4. Any feature, cost or service not specified in the description as being included is not included.

4.1.5. Upon completion of the Subscription Plan purchase process, the User shall receive an email from Shopify detailing the information regarding the contracted Plan, the Fee or App Spending Limit, and other information regarding his/her Plan.

4.2. Additional charges

4.2.1. In the event of a special taxable event associated with the Services, expressly ordered by the User or resulting from the exceeding of any threshold previously determined in relation to its Plan, the User undertakes to pay such financial amount, which shall be specified in the next invoice issued by Shopify on behalf of eShopBrainiac.

4.3. Taxes

4.3.1. The Plans offered on the App may be subject to taxes, which ARE NOT INCLUDED in the price, unless otherwise stated.

4.3.2. Before confirmation of the contracted Plan and prior to payment of the first Fee, the final price of the selected Plan, including applicable taxes (if any), and other applicable charges, will be displayed on the payment screen.

4.4. Payment methods and invoicing

4.4.1. eShopBrainiac uses Shopify as its payment service provider. In this respect, we do not have any economic or financial data as the payment is made through Shopify's tools, Shopify acting as our payment service provider, and Shopify sends you the invoice on our behalf.

4.4.2. Shopify issued the invoice, where you will find the Fee or amounts corresponding to the Subscription Plan, the amount related to the App Spending Limit, and any other amounts related to the eShopBrainiac Services.

4.4.3. As stated above, eShopBrainiac does not issue an invoice. Therefore, in case you would like to learn more about Shopify invoices, Shopify’s billing cycles, among other things, we recommend you to visit the following link: https://help.shopify.com/en/manual/your-account/manage-billing/your-invoice/apps#subscriptions#subscriptions

5.DURATION OF THE AGREEMENT

This Agreement comes into force on the date of contracting the Services by the User (date of acceptance of these General Terms and Conditions) and is of indefinite duration, being in force until it is resolved by the User or by eShopBrainiac.

6. LICENCE AND CONDITIONS OF USE OF THE SERVICES

6.1. eShopBrainiac grants the User a non-exclusive, non-sublicensable, non-transferable, revocable, worldwide, limited licence to access and use the App and the Services associated with it, for the exclusive use of the person who contracts the Service and may not commercialise or transfer it to third parties for the purposes defined in Clause 1 during the term of this Agreement (the Licence). In the event that other limitations are established for any Subscription Plan, access to the App and use of the Services shall be limited to such limitations.

6.2. The License to access and use the Services or the App shall remain in effect until and unless terminated by the User or eShopBrainiac. The User acknowledges and agrees to use the Services for its own use and not for commercial purposes and will fulfil the restrictions set forth in this section.

6.3. The User may only use the App and the Services in accordance with this Agreement. Any other use is prohibited unless expressly authorised by eShopBrainiac. The User, with respect to the Services, which include the App itself, its content, the computer codes of the elements that make up the Services, shall not do (including encouraging, facilitating or causing any other party to do) the following:

(a) Use the Services for any competitive or public purpose or for any purpose other than that specified in Clause 1;
(b) Use the Services for unlawful purposes;
(c) copy/reproduce, lend, sell, rent, sublicense, broadcast, distribute, edit, transfer to third parties, as well as adapt the Services or any part thereof in any way;
(d) Reverse engineer, decompile, disassemble, modify or create derivative works of the App, the Services or any part thereof, except to the extent permitted by applicable regulation;
(e) Circumvent, modify, remove, delete, erase, alter or otherwise tamper with any security, encryption or other technology or software that is part of the Services, in particular those used to enforce Free Access restrictions;
(f) Carrying out any action contrary to the Terms of Use (including the introduction of viruses or other malicious programs, the intentional overloading of the servers or any other action that prevents the normal use of the App or that is likely to cause damage to computer systems, the access provider, its suppliers or third party Internet users);
(g) Impersonating other users or Users;
(h) Use the Services in any way that could interfere with, hinder, adversely affect or prevent other Users from fully enjoying the Services, or that could damage, disable, overburden, or impair the operation of the Services.
(i) Otherwise, use the Service in violation of copyright or other laws.

In short, ANY ACCESS TO OR USE OF THE SERVICES AND THE APP THAT IS CONTRARY TO THE PROVISIONS OF THIS AGREEMENT AND, IN PARTICULAR, THAT MAY BE UNLAWFUL, ABUSIVE, FRAUDULENT OR THAT MAY HARM THE RIGHTS OF ESHOPBRAINIAC, OTHER USERS AND THIRD PARTIES IS PROHIBITED.

IN CASE OF SUSPICION BY ESHOPBRAINIAC OF THE USE OF THE APP FOR SUCH PURPOSES, THE COMPANY MAY REFUSE AND/OR DISABLE THE USE OF THE APP LICENCE OR OTHER SERVICES.

THE USER ACCEPTS AND ASSUMES ALL RESPONSIBILITY AND LIABILITY THAT MAY ARISE FROM ANY ACTIVITY THAT TAKES PLACE UNDER HIS NAME OR THROUGH THE DOMAIN OF HIS ONLINE SHOP.

6.4.Any use of the App and the Services in breach of this clause shall be deemed a material breach of the Agreement, which shall allow eShopBrainiac to resolve it with immediate effect, and to cancel or block access to the Services, as well as to take appropriate measures to prevent repeated breaches of these stipulations.

6.5. The User undertakes to hold eShopBrainiac harmless against any possible claim, fine, penalty or sanction that eShopBrainiac may be obliged to bear because of the User's breach of any of the rules of use indicated above, eShopBrainiac reserving the right to request compensation for damages.

7.INTELLECTUAL PROPERTY RIGHTS

7.1. eShopBrainiac is the owner of all intellectual or industrial property rights, or has sufficient authorisation, on the App (software and applications associated with it) and all content, including, but not limited to, all content included as part of the Services, trademarks, copyrights, source and object code, designs, interfaces, texts, images, videos or any other material, derived rights, as well as the architecture, presentation, arrangement and classification of the content of the App.

7.2. When the User uses the App and the Services, eShopBrainiac does not grant the User any right to exploit all or part of the same, except for the rights granted in this Agreement, with eShopBrainiac reserving all such rights. The User may only view the elements of the App and use the contracted Services in accordance with these Terms & Conditions and even print them, access them, at any time in the Settings section, copy them and store them on their device or on any other physical medium provided that it is exclusively for their personal use.

8. DATA PROTECTION

8.1. When the User installs the App, eShopBrainiac can access specific personal data linked to your online shop, such as the owner's identification data, email address, or others.

8.2. Consequently, in accordance with the provisions of the current and applicable data protection regulations, eShopBrainiac and the User are informed that the personal data derived from the contractual relationship which, if applicable, may be processed, will be used to comply with the obligations derived from the provision of services between the parties for the duration of the same, and may subsequently be kept blocked for the periods that may arise for the prescription of legal actions related to said processing.

8.3. The data will not be used for other purposes, and express consent must be requested otherwise. For the appropriate purposes, only service providers will have access to the data of the parties who must have it to enable the relationship between the parties to be properly maintained.

8.4.For the exercise of rights of access, rectification, erasure, opposition, portability and limitation of processing recognised by the GDPR, the parties may contact the contact details of each party. In addition, they may also contact the competent authority to assert their rights (www.aepd.es).

8.5. Accordingly, if eShopBrainiac has access to the personal data of any identified or identifiable individual under its responsibility in connection with the subject matter of this Agreement, such data shall be processed in accordance with the provisions of Clause 9.

9. DATA PROCESSING AGREEMENT

9.1. The purpose of this Clause is to regulate the relationship between eShopBrainiac (hereinafter, the Processor or the Data Processor) and the User (hereinafter, the Controller or the Data Controller), as appropriate, to the provision of Services by eShopBrainiac involving access to personal data under the responsibility of the User.

9.1.1. Purpose of the Processor. To provide the Services in an effective way, the Processor may have access to personal data under the responsibility of the Controller, in particular, to the following: Identification data, e-mail, IP, postal address. The Processor, for the provision of the service, may carry out the following processing operations: storage, consultation, collation, and deletion. This list is given by way of example, without prejudice to the fact that the Processor may, in the specific case, carry out additional processing operations on personal data under the responsibility of the Controller.

9.1.2. Obligations of the Data Controller. The Data Controller is responsible for carrying out the following tasks in addition to complying with the obligations set out in this Clause:

a. To comply with all the technical and organisational measures necessary to guarantee the security of the processing, premises, equipment, systems, programs and individuals involved in the processing of the personal data in question, as stipulated in the regulations in force and applicable at any given time.
b. To deliver the Processor with the data and instructions necessary to carry out the processing of the data as required to provide the Services.
c. To respond to the rights exercised by data subjects, such as the rights of access, rectification, erasure and objection, limitation of processing, data portability and not to be subject to automated individual decisions, with the collaboration of the processor.
d. To carry out, where appropriate, an assessment of the impact on the protection of personal data of the processing transactions to be carried out by the Processor.
e. To ensure, in a prior way and during the processing, that the processor complies with the applicable data protection regulations.
f. To supervise the processing, including carrying out inspections and audits.
g. To communicate to the Processor any variation that may occur in the personal data provided, so that they can be updated.

Furthermore, the Controller guarantees that the data that are subject to processing as a result of the provision of the Services have been collected and processed by the Controller in accordance with the obligations stipulated by REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE BOARD of 27 April 2016 (hereinafter, the GDPR), taking into account, in particular, the need for a legal basis legitimising the processing. The Controller shall hold the Processor harmless in the event that the Processor is sanctioned for a breach of data protection regulation caused by the negligence of the Controller in fulfilling its obligations as a data controller.

9.1.3. Obligations of the Processor. The Processor shall fulfil, during the provision of the Services, the following stipulations:

1. The Processor has sufficient technical capacity to fulfil its obligations under the Agreement.
2. The Processor undertakes, in relation to the Services provided, to comply with the requirements of the GDPR and other applicable personal data protection legislation.
3. The Processor shall maintain the confidentiality and secrecy of the personal data to which it has access.
4. The Processor shall process and use the personal data to which it has access, solely according to the instructions of the Controller, and in accordance with the purposes regulated in the Agreement. The Processor shall be deemed responsible for the processing if he/she uses the data for other purposes, communicates them or uses them in breach of the stipulations of this Clause, and shall be liable for any infringements that he/she may have personally incurred.
5. The Processor shall not communicate to third parties the data to which it has access by virtue of the Services provided, without prejudice to the contracting of auxiliary services necessary for the regular operation of the Processor’s activity and those sub-processors authorised by the Controllers.
6. The Processor shall have at the disposal of the Controller the information necessary to evidence compliance with its data protection obligations.
7. The Processor shall provide such assistance as may be required by the Controller for audits or inspections, carried out by the Controller or by another auditor authorised by the Controller. Audits may be carried out on regularly, planned, or ad hoc basis, subject to reasonable notice to the Processor, during the Processor's regular working hours.
8. The Processor guarantees that the individuals authorised to process personal data have undertaken, expressly and in writing, to fulfil the established security measures and to respect the confidentiality of the data. Compliance with this obligation must be documented by the Processor and made available to the Controller.
9. The Processor shall cooperate in the fulfilment of the Controller's obligations, and shall provide support to the Controller, where appropriate, in carrying out (i) impact assessments relating to the personal data to which it has access; (ii) prior consultation with the supervisory authority.
10. If the Processor deems that compliance with a specific instruction from the Controller could lead to a breach of data protection regulations, the Processor shall immediately notify the Controller thereof. The Processor shall in this communication request the Controller to amend, withdraw or confirm the instruction given and may suspend compliance pending a decision by the Controller.
11. Upon termination of the provision of the Services, the Processor shall delete or return the personal data to which it has had access and any existing copies, as instructed by the Controller. If the Controller requests the deletion of the data in a specific manner that is not part of the Processor's normal business, the costs of deleting the data in the manner indicated by the Controller shall be borne by the Controller.

The processor shall be obliged to delete or return:
a) data included in files under the responsibility of the Controller, at the disposal of the Processor as a consequence of the provision of the Services;
b) data generated by the Processor during the processing of data under the responsibility of the Controller;
c) media on which these data are recorded.

The Processor may keep a copy with the data duly blocked, for as long as liabilities may arise from the performance of the Services.

The Processor shall notify the Controller, without undue delay and in any event no later than within 24 hours of any suspected or confirmed data protection incident within its area of responsibility. Among other things, it shall notify the Controller of any processing that may be deemed unlawful or unauthorised, any loss, destruction or damage to data and any incident deemed to be a breach of data security. The notification shall be accompanied by all relevant information for the documentation and communication of the incident to relevant authorities or affected data subjects. In this regard, it shall provide the Controller with, as a minimum, the following information:

a) Description of the nature of the data security breach, including, where possible, the categories and approximate number of data subjects affected, and the categories and approximate number of personal data records affected;
b) Name and contact details of the data protection officer or other point of contact where further information can be obtained;
c) Description of the possible consequences of the data security breach;
d) Description of the measures taken or proposed to remedy the data security breach, including, where appropriate, measures taken to mitigate possible negative effects.

The Processor shall in addition initiate an investigation into the circumstances of the incident, and shall submit a report to the Controller with observations on the incident.
The Processor shall cooperate fully with the investigation conducted by the Controller, for its part, by providing the assistance requested by the Controller in investigating the incident.

The Processor shall also assist the Controller in relation to the notification obligations under the GDPR (in particular Articles 33 and 34 of the GDPR) and any other applicable present or future regulation modifying or supplementing such obligations.

12. The Processor shall provide the information and/or documentation requested by the Controller to respond to requests for the exercise of rights that the Controller may receive from data subjects whose data are processed.

13. When the affected individuals exercise their rights of access, rectification, erasure and objection, limitation of processing, data portability and the right not to be subject to automated individual decisions, the Processor must communicate this by e-mail to the address provided by the User or Data Controller in the Specific Conditions. The communication must be made in such a way that it can be dealt with within the established legal deadlines.

14. The Processor may subcontract the Services, always informing the Controller of the processing to be subcontracted and identifying in a clear and unambiguous way the subcontracting company and its contact details. This obligation shall not apply in the case of ancillary services necessary for the normal operation of the Processor.

The subcontractor (or Sub-processor), who shall also have the status of processor, shall also be obliged to fulfil the obligations imposed on the Processor and the instructions issued by the Controller, as dictated in the Agreement. It is up to the Processor to regulate the new relationship in an agreement signed by the Processor and the Sub-processor, in such a way that the Sub-processor is subject to the same conditions (instructions, obligations, security measures...) and with the same formal requirements as the Processor, as regards the proper processing of personal data and the guarantee of the rights of the individuals concerned.

In this regard, the Controller is informed that the Processor receives the services of:

  • Amazon Web Services (AWS), located in the United States, for the provision of computer hosting services. The mechanism that allows the international transfer of data to this entity is the Data Privacy Framework, www.dataprivacyframework.gov, and in its absence, the Standard Contractual Clauses approved by the European Commission.

eShopBrainiac confirms that it has an agreement with these companies in which they assume the obligations of the processor.

15. The Processor shall keep a written record of the categories of processing activities carried out, in accordance with this Clause, specifying:
a) The name and contact details of the Processor and of each Controller on behalf of whom the Processor acts and, where applicable, of the representative of the Controller or the Processor and of the data protection officer;
b) The categories of processing operations carried out on behalf of each controller;
c) Where applicable, transfers of personal data to a third country or international organisation the identification of that third country or international organisation and documentation of appropriate safeguards;
d) A general description of the technical and organisational security measures relating to:
- (i) Pseudonymisation and encryption of personal data;
- (ii) The ability to ensure the continued confidentiality, integrity, availability and resilience of processing systems and services;
- (iii) The ability to restore availability and access to personal data in a rapidly in the event of a physical or technical incident;
- (iv) The process of regular verification, evaluation, and assessment of the effectiveness of technical and organisational measures to ensure the security of processing.

16. The Processor may only carry out international transfers of personal data to which it has access, under the responsibility of the Controller, if such transfers are duly regularised in accordance with Articles 45, 46 or 47 of the GDPR.

In relation to technical and organisational security measures, the Processor shall implement all those applicable in accordance with the GDPR (in particular and without limitation, those provided for in article 32 of the GDPR) and in any other applicable regulations that modify, complement or replace it.

In any case, the Processor shall put in place mechanisms to:

a) Ensure the continued confidentiality, integrity, availability and resilience of processing systems and services;
b) Restore availability and access to personal data in a timely way, in case of a physical or technical incident;
c) Verify, evaluate and assess, on a regular way, the effectiveness of the technical and organisational measures implemented to ensure the security of the processing;
d) Pseudonymise and encrypt personal data, where appropriate.

Upon request of the Controller, the Processor shall provide a detailed list of the security measures implemented to protect personal data under this Agreement.

9.1.4. Liability. The Processor shall be deemed to be the Data Controller if it uses the data for other purposes, communicates them or uses them in breach of the provisions of this processing assignment clause or the obligations of the applicable data protection regulations.

The Controller must inform the Processor immediately of any sanctioning procedures initiated by the Spanish Data Protection Agency (AEPD) or any other authority against the Controller for such breaches, so that the Processor can assume the legal defence in a coordinated way with the Controller.

10. LIMITATION OF LIABILITY

10.1. The use of the eShopBrainiac’s Services is at the User's own risk. The User shall be solely responsible for his/her decisions and for using of the information and/or data provided as part of the Services. eShopBrainiac does not guarantee specific results to the User from using of the Services.

10.2. eShopBrainiac does not guarantee that the availability of the Services will be continuous and uninterrupted, as the Services may suffer difficulties due to circumstances caused by problems in the Internet network, breakdowns in computer devices and other unforeseeable circumstances. The User undertakes to bear within reasonable limits such circumstances, and therefore expressly waives eShopBrainiac any contractual or extra-contractual liability for possible failures, errors, and use of the contracted Service.

10.3. THE SERVICES AND THEIR CONTENT ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. ESHOPBRAINIAC MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ERROR-FREE NATURE OR ACCURACY OF THE SERVICES OR THEIR CONTENT. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, NO WARRANTIES (EXPRESS OR IMPLIED), INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, ARE MADE.

In addition, the User agrees to exclude eShopBrainiac from any liability arising out of or because of:
(a) the use of the App and/or contracted Services, and/or;
(b) any breach or violation of the terms and conditions of this Agreement by the User, even after termination of the Agreement.

10.4. eShopBrainiac reserves the right to deny, withdraw/block access to the Services and/or the App without prior notice, at its own request or at the request of a third party, to those Users who do not fulfill this Agreement.

10.5. eShopBrainiac will prosecute any breach of this Agreement, as well as any improper use of the App, reserving the right to exercise all civil and criminal actions to which it is entitled.

10.6 To the extent permitted by law, the total liability of eShopBrainiac, its partners and its staff for any damage, injury or claim arising out of the Services is limited to the total amount of payments made by the User to eShopBrainiac under this Agreement during the twelve (12) months period immediately preceding the event giving rise to such liability.

Indirect damages, loss of profit, consequential damages or opportunity costs shall not be subject to claims. This limit shall not apply if eShopBrainiac has been guilty of fraud or gross negligence declared by a final judgment in performing of the Services covered by this Agreement.

11. CANCELLATION AND TERMINATION OF SERVICES

11.1.The User may cancel its Plan at any time. However, any cancellation of the Plan will be considered for the current period provided that it is made at any time prior to the collection of the Fee.

11.2.If the cancellation is made after the stated deadline, the cancellation will still be effective, but for the next period. This means that it will only be renewed once more, so that for the next period the Plan will be active but will not be renewed again.

11.3.In the event of cancellation of the Plan, the User shall continue to have access to the Services until the end of the current billing period. After this period, the User may access the App for a further 30 days. However, after this period, the User will no longer be able to access the App. Under no circumstances will the unused portion of the current billing period be refunded.

11.4. IN THE EVENT OF BREACH OF ANY OF THESE GENERAL TERMS AND CONDITIONS BY THE USER, ESHOPBRAINIAC RESERVES THE RIGHT TO DISABLE OR BLOCK ACCESS TO THE APP AND SERVICES, IN WHOLE OR IN PART, TEMPORARILY OR PERMANENTLY, WITHOUT COMPENSATION OR REIMBURSEMENT AND WITHOUT PREJUDICE TO ANY CLAIM AGAINST THE USER.

12. RIGHT OF WITHDRAWAL AND REFUND POLICY

12.1.The right of withdrawal is the right of any consumer to withdraw from an agreement within 14 calendar days from receipt of the products purchased or, in the case of services, from the contract, without having to justify their decision or bear any penalty for it.

12.2. The User shall have the right to withdraw from this Agreement within 14 calendar days of the conclusion of this Agreement. However, such withdrawal shall not apply if the Service has been fully executed, when execution has begun, with the prior express consent of the User and with the acknowledgement that, once the Agreement has been fully executed, the User will have lost his or her right of withdrawal.

12.3. In the case of the Services, the User expressly agrees that this Agreement shall begin to run from the time of its conclusion (contracting a Plan), i.e. during the withdrawal period, and therefore acknowledges that, once the Agreement has been fully executed, the User will have lost its right of withdrawal.

12.4. Notwithstanding the foregoing, the User may not withdraw from the contracting of the Services when he/she does not have the status of consumer in accordance with the provisions of the applicable regulations.

12.5.The exercise of the right of withdrawal is not subject to any formality, so it is sufficient for the User to inform eShopBrainiac of his/her wishes within the period indicated above at our postal address (Calle Agricultura 24 (local), 08320 El Masnou, Barcelona (Spain) or electronically (hello@eshopbrainiac.com) using the withdrawal form below:

Cancellation form:

For the attention of ESHOPBRAINIAC, S.L.
I hereby give notice that I am withdrawing from the Agreement in relation to the following Services:
Agreement on / reference:
Consumer data:
Signature of the consumer:
Date:

12.6. Consequences of withdrawal

12.6.1.If the User exercises its right of withdrawal from this Agreement, eShopBrainiac shall, if applicable, reimburse all payments received from the User, without undue delay and in any event no later than 14 calendar days from the time of receipt of the effective communication of the withdrawal. Notwithstanding the foregoing, if the provision of the Services has started during the withdrawal period, eShopBrainiac shall deduct from the reimbursement an amount proportional to the part of the Services already provided until the notice of withdrawal in relation to the entire subject matter of the Agreement.

12.6.2.Such reimbursement shall be made using the same means of payment that the User used for the initial transaction, unless otherwise expressly resolved; in any event, the User shall not incur any costs because of such reimbursement.

13. AMENDMENTS TO THIS AGREEMENT

13.1. eShopBrainiac reserves the right to modify, at any time and without prior notice, these General Terms and Conditions.

13.2. eShopBrainiac will always offer the User the possibility to withdraw from the Services within thirty (30) calendar days prior to the date of entry into force of the amendments to these General Terms and Conditions.

In any event, continued use of the Services shall constitute acceptance of the amendments to the Agreement. If the User chooses not to accept the amendment, the User must cancel the subscription in accordance with Clause 11.

14. BREACH OF THESE GENERAL TERMS AND CONDITIONS

14.1. eShopBrainiac reserves the right to refuse, withdraw/block access to the Services without prior notice, at its request or that of a third party, to those Users who do not comply with this Agreement. eShopBrainiac will pursue the breach of the Agreement, as well as any improper use of the Services, reserving the right to use, by way of example but not limited to, the following means, without prejudice to exercising all civil and criminal actions to which it is entitled:

  • (i) immediate interruption of the provision of the Services;
  • (ii) automatic locking/unlocking of access to the App;
  • (iii) refusal to process new orders;
  • (iv) additional measures that may be appropriate to prevent repeated breaches of these General Terms and Conditions.

14.2.If eShopBrainiac becomes aware of any breach of this Agreement, eShopBrainiac will conduct a case-by-case investigation process to clarify any issues raised. The User undertakes to hold eShopBrainiac harmless against any possible claim, fine, penalty or sanction that eShopBrainiac may be forced to bear as a result of the User's breach of any of the rules or restrictions indicated in the Agreement, and eShopBrainiac reserves the right to request compensation for damages.

14.3. In the event that the User's access to the Services is blocked or suspended in any way, the User will not be able to access the content and/or information generated so far, or any other element, and no third party will have the right to access the information stored and linked to the User's shop domain until (or if) such incident is resolved, subject to prior written confirmation from eShopBrainiac.

15. MISCELLANEOUS

15.1. If any provision of these Terms & Conditions is declared wholly or partially null and void or ineffective, such nullity or ineffectiveness shall only affect such provision or the part thereof that is null and void or ineffective. The Agreement shall survive in all other respects, such provision, or the part thereof that is affected being deemed not to have been made.

15.2. All communication between the Parties shall be made via the App or, where appropriate, by e-mail to the contact addresses indicated by the Parties or by any means of which there is evidence of receipt to the individuals and addresses indicated.

15.3. The headings of the individual clauses are for information purposes only and shall not affect, qualify or extend the interpretation of this Agreement.

15.4. The failure of eShopBrainiac to require the User to comply with a term of this Agreement that it has contravened shall not constitute a waiver in the future of the application of such a clause, which may be enforced at any time.

15.5. These General Terms and Conditions contain the complete, full and exclusive binding relationship between the User and eShopBrainiac (regardless of the specific content of the other terms applicable to this Agreement indicated in these General Terms and Conditions). These General Terms and Conditions supersede all previous agreements between the User and eShopBrainiac, if any, relating to the Services.

15.6. The User acknowledges having read, understood, and accepted these General Terms and Conditions and therefore affirms that they are sufficient to exclude error in the consent to this Agreement and, therefore, fully and expressly accepts them.

15.7. Every Clause of this Agreement which by its nature must remain in force after the termination of the contractual relationship between the User and eShopBrainiac, E shall survive the termination of this relationship, whatever its purpose, unless it disproportionately harms the interests of eShopBrainiac.

16. ASSIGNMENT

16.1. eShopBrainiac may assign, transfer, or dispose of, at its sole discretion, any rights or obligations under this Agreement, in whole or in part, to the extent that the foregoing does not prejudice any prior undertakings made to the User, at any time and without the prior written consent of the User.

16.2. The User may not assign or transfer its subscription to any other individual or entity without the prior written consent of eShopBrainiac.

17. LANGUAGE VERSION; APPLICABLE LAW AND JURISDICTION

17.1. This Agreement may be made available to the User in several languages. However, in case of doubt or contradiction between the different versions, the English version published on the App shall always prevail.

17.2. These Terms & Conditions and their execution are subject to the Spanish regulation, unless otherwise provided by law.

17.3. In the event of any dispute arising as to the interpretation or application of these contractual conditions, the parties shall negotiate in good faith in an attempt to resolve such dispute or claim. However, if the discrepancy or claim is not resolved, the Parties shall submit to the courts or tribunals of the User's address, in the event that the User is acting as a consumer. However, only in cases where the regulations do not provide for a mandatory jurisdiction (i.e. in the event that the User is not considered a consumer), eShopBrainiac and the User submit the decision of the matter to the Courts and Tribunals of the city of Barcelona (Spain).

17.4. The European Commission also offers an App for Alternative Dispute Resolution, which any consumer can access at the following link:

https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN

18. CONTACT

18.1.In case of doubts, queries or to make any claim, the User may contact eShopBrainiac at any time through the following channels:

  • Registered address: Calle Agricultura 24 (local), 08320 El Masnou, Barcelona (Spain).
  • Contact email: hello@eshopbrainiac.com.

Last amendment: 9 February 2024