Theme developer agreement

Draft for legal review. This agreement has not yet been reviewed by a lawyer. Remove this notice once it has.

This agreement is between [LEGAL ENTITY NAME], [ADDRESS], Portugal ("WhizzyCommerce", "we", "us") and the person or company that accepts it in the Developer area ("you"). It governs building, submitting, selling and supporting themes for WhizzyCommerce. Our terms of service still apply to your use of the platform itself.

1. The programme

The theme developer programme lets approved developers build themes for WhizzyCommerce shops, submit them for review, and sell them to merchants through our marketplace. Admission is at our discretion.

The programme's published terms at whizzycommerce.com/developers describe the checks, the review, the revenue share, the payout schedule and the marketplace rules in detail. They form part of this agreement. Where they and this agreement disagree, this agreement wins.

You are responsible for everyone you add to your developer account, and for keeping your login and any tokens you create secure.

2. Your themes stay yours

You keep all rights in the themes you create. Nothing in this agreement transfers ownership to us.

You grant WhizzyCommerce a worldwide, non-exclusive, royalty-free licence, for as long as this agreement lasts and afterwards as section 11 describes, to:

• host, store, copy, validate, compile and review your themes;
• show them in the marketplace, with screenshots and public demo shops, and in our own marketing of the marketplace;
• sell and distribute licences to merchants, and deliver your updates to shops that have the theme;
• make the technical changes needed to run a theme on the platform, such as scoping its CSS and removing anything our validator refuses.

Each merchant who buys or installs a theme receives a non-exclusive, non-transferable licence to use it, and its updates, on one shop. A merchant may customise the theme for that shop, but may not resell or redistribute it.

The licence is non-exclusive. You may sell the same design elsewhere.

3. Your promises

For every theme and every version you submit, you confirm that:

• it is your original work, or you have the right to license everything in it to us and to merchants on these terms;
• every font, image, icon and piece of text in it or in its demos is licensed for that use, and you can show the licence if we ask;
• it contains no malware, no tracking of shoppers or merchants, and nothing designed to get around the platform's security or checks;
• it does not infringe anyone's copyright, trademark or other rights, and does not copy another brand or theme;
• its listing describes it truthfully.

4. Revenue share

WhizzyCommerce sells theme licences to merchants as merchant of record, sets the checkout, and collects and pays the sales taxes due on those sales.

For each paid sale of your theme you earn 70% of the price the merchant paid, before tax. Developers we name as founding developers earn 80% on sales made in their first 12 months in the programme. We pay the card and payment fees out of our part.

You set the price of a paid theme between €49.00 and €400.00 before tax, or offer it free. A price change applies to new buyers only. Discounts and promotions in the marketplace are set by us, and your share is of the discounted price.

A purchase of your own theme by your own account earns no share.

We may change the share or these amounts for future sales by giving you at least 30 days' notice under section 13. A change never affects sales already made.

5. Payment

• Hold. Each share becomes payable 30 days after the sale.
• Minimum. We pay once your payable balance reaches €50.00. A smaller balance carries over.
• Schedule. We pay payable balances monthly, on or shortly after the 5th day of the month, or sooner when you request a payout from the Developer area. We may review a payout before it is sent, and hold it while we look into suspected fraud, abuse or a breach of this agreement, telling you why.
• Method. By bank transfer, or through Stripe where we offer it. You must give accurate tax details and payout details before we can pay you.
• Self-billing. You agree that we issue a self-billing statement in your name for each payout, that you will not issue your own invoice for the same amounts, and that you will tell us at once if your tax status changes or if your country does not permit self-billing.
• Taxes. The taxes on your earnings, including income tax and any VAT you must account for, are your responsibility. Our amounts are stated excluding any VAT you may be required to charge. We may withhold amounts where the law requires it. We do not give tax advice.

6. Refunds and chargebacks

Merchants may receive refunds under our terms of service, and card holders may dispute charges. When a sale is refunded or reversed:

• if your share has not been paid yet, it is cancelled;
• if it has been paid, the same amount is deducted from your future earnings. If your account closes with an amount still owed, you agree to repay it within 30 days of our request.

7. Support

For as long as a theme is listed, you support it: you reply to merchants' support threads within two business days, and you fix defects that stop the theme working as its listing describes. Support does not include custom work, which you may offer separately.

You see only what a thread shows you: the shop's name, country and theme version, and the merchant's contact details once they open a thread. You use that information only to provide support, and never contact shoppers.

8. Review and removal

Every version is checked automatically and reviewed by us before merchants receive it. We may approve, request changes to, or decline any version, and we decide what appears in the marketplace and in what order.

We may delist a theme for new sales if it breaks a promise in section 3, if it has not been updated for 12 months, if a platform change breaks it and it is not fixed within 30 days of our notice, or if its support duty is repeatedly missed. A theme that harms shops or shoppers may also be switched off on the shops that have it.

9. Suspension and termination

You may end this agreement at any time from the Developer area or by writing to us. Your themes are then delisted for new sales.

We may end it with 30 days' notice for any reason, or at once, or suspend your account, if you seriously or repeatedly breach it, act fraudulently, or put merchants, shoppers or the platform at risk.

After it ends we pay any balance you have earned, less refunds, chargebacks and amounts owed, on the normal schedule once holds have passed, unless we ended it because of fraud.

10. Our platform

The platform, the theme format, the tools and the marketplace are ours, and we may change them. We will tell you in advance about changes that require you to update your themes whenever we reasonably can.

11. What survives termination

• Merchants who bought or installed a theme keep using the versions they have, for as long as their shop exists, and our licence continues for as long as needed to host those versions for them.
• Sections 2 (as it applies to those merchants), 3, 5, 6, 9, 11, 12 and 14 continue to apply.

12. Liability

The programme and the platform are provided as they are. To the extent the law allows, neither of us is liable to the other for indirect or consequential loss, or for lost profits, revenue or data.

To the extent the law allows, our total liability to you under this agreement in any 12 months is limited to the shares we paid you in those 12 months.

You will cover our reasonable costs and losses from a claim that a theme you submitted infringes someone's rights or breaks the law.

Nothing in this agreement limits liability that cannot be limited by law, such as for fraud.

13. Changes to this agreement

We may change this agreement. We will email you at least 30 days before a material change takes effect. The Developer area then asks you to accept the new version; until you do, you cannot submit new versions or receive payouts for sales made after the change takes effect. If you do not accept it, you may end this agreement under section 9.

14. General

This agreement is governed by the laws of [GOVERNING LAW], and the courts of [JURISDICTION] have jurisdiction, without taking away any protection the law of your country gives you and cannot be waived.

You are an independent contractor, not our employee or agent. You may not transfer this agreement without our consent. If part of it is found unenforceable, the rest still applies.

Contact

[DEVELOPER SUPPORT EMAIL]

[LEGAL ENTITY NAME], [ADDRESS], Portugal