Updated October 12, 2022
BY AGREEING TO A DOCUMENT INCORPORATING THESE TERMS OF SERVICE (“THE TERMS”) SHAPE SOFTWARE INC. (“SHAPE”) AND YOU (TOGETHER “PARTIES”) AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY SHAPE PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO YOU AS SET FORTH IN ANY SHAPE SERVICE AGREEMENT OR ORDER FORM. AS TO ANY PARTICULAR SERVICE AGREEMENT, THE ORDER FORM, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE SERVICE AGREEMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE SERVICE AGREEMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
PLEASE READ THESE CUSTOMER TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “You”, “Your”, or “Customer”) AND SHAPE SOFTWARE INC., A DELAWARE CORPORATION, WITH OFFICES AT 9070 IRVINE CENTER DR. SUITE #140 IRVINE, CA 92618 (hereinafter “Shape” or “Shape Software”) GOVERNING YOUR USE OF ALL SHAPE SERVICES AND INFORMATION AND GOVERNING YOUR SERVICE AGREEMENT.
“Agreement” means these Customer Terms of Service, any hyperlinks found in the footer of our website www.setshape.com and any Shape Service Agreement that You execute. This Agreement fully incorporates and recapitulates each of the Customer Agreements as defined above.
“Billable Users” means those types of Users (defined below) for which we charge you fees as set forth on our Pricing Page or in an Order Form (“Shape Service Agreement”) (further defined below).
“Billing Period” means the period for which you agree to pay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Contact” means a single customer, prospect, lead, or other individual (other than a User) whose Contact Information is stored by you in the Service.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Service or uploaded by you to the Service.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services, subject to the terms and conditions of your Order Form.
“Crowdsourced Data” means the information you submit to us (if you use our CRM) to update the data in certain properties in our company database.
“Customer Data” means all information that you submit or collect via the Service.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Service.
“Email Send Limit” means the number of emails that you may send in any given calendar month.
“Enrichment Data” means the data we make available to you as part of the Service and Crowdsourced Data. Enrichment Data also includes information about Users, such as social media handles, avatars, and alternate email address, that we obtain from public or third party sources.
“Free Services” means the Service or other products or features made available by us to you, through explicit notification that it is free, on an unpaid trial or free basis. “Shape Portal” means the online access and account that Shape provides you to use Shape’s services.
“Shape Software Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Service or Consulting Services, including Enrichment Data.
“Order” or “Order Form” means the Shape Software approved form, online subscription process, or Shape Service Agreement, by which you agree to subscribe to the Service and purchase Services. Most Orders are completed through our online payment process or via in-app purchase. Orders completed through means other than a standard Order Form are governed by the terms of the documents (including emails or other electronic documents) which complete the order. The Order may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
“Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
“Site Visit” or “Visit” means interaction with your website by a single visitor in a single session.
“Subscription Fee” means the amount you pay for the Service.
“Service Agreement” means the Shape Software approved form by which you agree to subscribe to the Service and that is executed by you.
“Service” means all of our software, web-based inbound marketing and sales applications, tools and platforms that you have subscribed to by an Order Form or Service Agreement or that we otherwise made available to you, and are developed, operated, and maintained by us, accessible via or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
“Subscription Term” means the initial term of your subscription to the applicable Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Service. These products and services include non-Shape apps available from, for example, the following: our integrations products page, partner directory, template marketplace, links made available through the Service and non-Shape services listed on services.Shape.com.
“Third-Party Sites” means third-party websites linked to from within the Service, including Communications Services.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service for your benefit and have unique user identifications and passwords for the Service.
“Shape Software”, “Shape”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
“You”, “your” or “Customer” means the person or entity using the Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the Customer.
During the Subscription Term, we will provide you access to use the Service as described in this Agreement and the applicable Order. We might provide some or all elements of the Service through third party service providers. A User License can only be used by one person and cannot be shared. Customer may add User Licenses through the Shape System.
We try to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance. Customer support is provided by e-mail 24 hours a day and phone support is provided Monday through Friday, 9AM to 5PM Pacific Time. Shape expressly disclaims any obligation to guarantee consistent or permanent up-time. Shape notifies Customers of planned down-time on a “best efforts” basis and is not obligated to notify Customers of unplanned down-time.
Customer agrees to pay Shape on a monthly basis 1) any recurring charge amounts and 2) the Fees and Charges associated with each feature in each User License Account or service found in the “Billing & Transactions” section of the Account Settings page within the Company’s Account, which can be found at https://secure.setshape.com/billing-transactions# (“Billing Page”) in their Shape Account. Payment terms may be subject to further terms and conditions set forth on Order Forms. Fees due under Order Forms are not refundable. Further fees may be due in the event of a chargeback fee or other costs imposed on Shape as a result of Customer’s breach of the terms of this Agreement and/or the applicable Order Form. User Licenses added by Customer during the Term will remain in effect for the remainder of the Term and cannot be terminated or removed by Customer before the end of the Term. All payment obligations are non-cancelable, and all amounts paid are non-refundable. Customer is responsible for paying for all User Licenses ordered for the entire Term, whether or not such User Licenses are used. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, Customer shall notify Shape in writing and shall pay such additional amounts as necessary to ensure that the net amount paid to Shape, after such deduction and withholding, equals the amount Shape would have received if no such deduction or withholding had been required. Customer shall indemnify, hold harmless, and defend Shape at Customer’s own expense from any claim or controversy arising from Customer’s failure to notify Shape of any such deduction or withholding. Customer shall further indemnify, hold harmless, and defend Shape at Customer’s own expense from any claim or controversy arising from Shape’s appeal of any chargeback, and shall be responsible for other costs associated with the collection of fraudulent chargebacks. Additionally, Customer shall provide Shape with supporting documentation evidencing Customer’s payment of the withholding and deducted amounts to the relevant taxing authority.
By using Shape’s services, Customer agrees to the fees outlined in the “Billing and Transactions” section of the Settings page within each Shape system. The Google Maps API service is on by default for every user and system and each user is charged $20 per month for 1,000 lookups per month for this service.
If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, including charges made by our billing account which may show up on your credit card or bank statement as “Shape Software LLC” or “Shape Software Inc.”. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. If a payment method is declined, Shape reserves the right to pursue Customer payment obligations, including any costs imposed on Shape as a result of such payment method’s decline.
If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
You will keep your contact information, billing information and credit card information (where applicable) up to date with Shape through your Shape Portal. Changes may be made on your Billing Page within your Shape Portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Shape Software Agency Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
If you register for a free trial, we will make the applicable Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Service before the end of the free trial, all of your data in the Service may be permanently deleted at the end of the trial, and we will not recover it except where your rights under the GDPR, as defined above, require us to preserve such information. If we include additional terms and conditions on the trial registration web page, those will apply as well.
Shape may charge you for additional third party services (“Third Party Charges” or “TPC”). These Third Party Charges shall be disclosed to you in writing via e-mail or other communication, or they will be outlined in your Order Form or other agreement with Shape. If you wish to opt out of certain TPCs, notify your Shape representative prior to the issuance of an Order Form, or upon receipt of an Order disclosing TPCs.
Failure to Pay: Failure to timely pay any Fees due to Shape by You or Company, authorizes and allows Shape to, in its sole and absolute discretion take any or all of the following actions (together or separately) 1) any remedies outlined in a Shape Service Agreement 2) accelerate the payment of any and all Fees due to Shape such that all unpaid Fees shall immediately be payable to Shape regardless of any previous payment terms offered to You and 3) restrict or suspend your access to any Shape Services or products. Company agrees to pay all costs incurred by Shape in connection with its collection of delinquent payments, including attorney’s fees and court costs, costs associated with failed payment such as chargebacks or fees associated with a payment method being declined, . Company will continue to be charged for User Licenses during any period of suspension. Shape reserves the right to impose a reconnection fee in the event of a suspension and subsequent request for reconnection by Company. In addition to all other remedies available to Shape, Shape shall be entitled to receive interest of 2% per month on any delinquent amounts (including any fees due, attorney fees or collection fees accrued in connection with collecting fees due by Company), or the maximum permitted by law, whichever is less.
Please see the Shape Acceptable Use Policy and related Customer Agreements for terms controlling use and limitations on use. All individual licenses are for one user only. Customer agrees to use the Service solely for its internal business purposes as contemplated by this Agreement and further agrees that it will not, nor allow any third party to: (i) license, sublicense, sell, disclose, lend, transfer, convey, resell, rent, lease, assign, distribute, timeshare or otherwise commercially exploit or make the Service available to any third party, other than as expressly set forth in this Agreement; (ii) send or store any information or material that a) is in violation of any law or regulation, b) is libelous or otherwise unlawful or tortious or that infringes or violates any third party’s intellectual property, publicity or privacy rights c) contains viruses, worms, Trojan horses or harmful computer codes, files, scripts, agents or programs, d) interferes with or disrupts the integrity or performance of the Service, the Shape System or the data contained therein, e) attempts to gain unauthorized access to the Service , the Shape System or its related systems or networks. Customer shall not (a) modify, alter, tamper with, copy or create derivative works based on the Service or Shape System or any software included within the Service to a) create internet “links” to or from the Service, or “frame” or “mirror” any content forming any part of the Service other than on Customer’s own intranets or otherwise for its own internal business purposes; or b) disassemble, reverse engineer or decompile the Service or the Shape Technology or otherwise attempt to derive the source code of any software included within the Service for any purpose or reason.
You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Service; (iii) attempt to gain unauthorized access to the Service; (iv) access the Service other than through our interface; or (v) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
Customer shall indemnify, hold harmless, and defend at its own expense Shape from any loss, liability, or claim, including losses not amounting to the institution of formal litigation or analogous administrative process such as reputational harm arising from breach of the Acceptable Use Policy, any term of this Agreement (including this section), or any other term or provision of any Customer Agreement.
You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service. You agree not to use data from the Service in legal proceedings or otherwise as evidence.
YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product. Shape expressly disclaims any duty or obligation related to the propriety of using any Third-Party Sites or Products, including any duty to warn. Third-Party Sites or Products may be subject to separate terms and conditions between a Customer and a Third-Party.
Shape Services are deemed to be unavailable to a Customer (“Unavailable”) if i) Shape Services are unavailable to Customer for more than thirty six (36) total hours during any given Term, ii) all accounts payable to Shape are current with Customer iii) Shape did not notify Customer of such Unavailability at least 24 hours in advance, and iv) the Unavailability was not the result of Customer’s request to Customize or do other work to the Shape System. In addition, the Service will not be deemed to be Unavailable for any outage of the Service due to (a) Customer’s information content or application programming or software, acts or omissions of Customer or its agents, failures of equipment, software, technology or facilities provided by Customer or any third party, or network unavailability outside of the Shape Network; (b) issues arising from bugs or other problems in the software, firmware or hardware of Shape’s suppliers; (c) delays or failures due to circumstances beyond Shape’s reasonable control that could not be avoided by its exercise of reasonable care; (d) any outage or downtime outside of the Shape Network; or (e) suspension or termination by Shape of Customer’s right to access the Service. If Shape Services are Unavailable to a Customer, then Customer shall be given a credit (“Service Credit”), applicable toward the next Term, up to a maximum amount of 50% of the prior Term’s Monthly Recurring Fee already paid to Shape, pro-rated by the percentage of minutes during the Term that the Shape System was Unavailable. This Section 9 sets forth Shape’s sole and entire liability to Customer, and Customer’s sole remedy, for the Service being Unavailable. Service Credits are exclusive of all other remedies. Shape is not responsible for any losses, including consequential or other special damages, related to Unavailable Services for any reason, even if Service Credits are rejected or not used. To receive Service Credits, Customer must submit a written request or notify the Shape Customer Service Manager responsible for Customer’s account within 30 days following the last day of the month in which the Unavailability occurred. Otherwise, Customer will be deemed to have waived its right to receive Service Credits with respect to the Unavailability.
Your initial subscription period will be specified in your Order, and your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, you must notify Shape in writing, by clicking “Cancel Account” at https://setshape.com/cancel and completing the account cancellation verification process at least thirty (30) days prior to the expiration of the Term. The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then the last-stated Subscription price on your Order Form will apply. If the Subscription price is not stated, then our standard pricing available on our Pricing Page on the date of renewal will apply. The Subscription Term will end on the expiration date and the subscription cannot be canceled early. We do not provide refunds if you decide to stop using the Shape Software subscription during your Subscription Term.
Shape may terminate this Agreement with or without cause, as to any or all Services immediately, either verbally or in writing.
We may suspend or terminate any User’s access to any or all Services for any reason, in Shape’s sole and absolute discretion including but not limited to: (i) use of the Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Shape Software email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity, or (iii) defamation, defined in Shape’s sole and absolute discretion, on any website, or publicly or privately to any person or entity.
We will provide you with notice of non-payment of any amount due. Your obligation to pay any amounts due is not subject to notice or further demand from Shape. Unless the full amount has been paid, we may suspend your access to any or all of the Services one (1) day after such notice. If a Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service. If any amounts due are not paid within thirty (30) days of when payment is due, we reserve the right to delete any and all of your data or information in our sole and absolute discretion.
If your website on, or use of, the Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
If your paid subscription is terminated or expires, we may choose to continue to make available to you our Free Services, and you will continue to be subject to this Agreement for as long as you have access to a Shape Software portal. The Customer Agreements continue to apply, including as to their continuing acceptance as stated above, each time you access or use any Shape product, service, or website.
Email sent from the Service is divided into two categories; email sent to users (“Internal Email”) and email sent to leads (“External Email”). Internal & External Email volume is restricted by your server bandwidth and is based on a monthly allowance. Customer may send an unlimited volume of Internal Email based on server bandwidth to valid email addresses directly associated with users in the Customer’s Lead Management account. Customer may receive a monthly allowance of External Email, which may be sent to valid email addresses directly associated with leads in the Customer’s account. The available volume is based on the current number of user licenses and Service edition. The monthly allowance is reset on the first day of each calendar month. The unused portion of a monthly allowance shall not accrue and is not available for use in any subsequent month. Customer may enable additional email volume, in excess of the monthly email allowance, at a cost of $.01 per email by providing written notice to Shape and charges for such additional email volume will be charged in the next billing cycle. Some sending limits do require dedicated sending servers, which may incur additional costs. Solutions are available for increased sending bandwidth and is assessed on a case-by-case basis.
Over 5,000 Emails $0.01 per Email
Customer is prohibited from transmitting, distributing or delivering unsolicited bulk or commercial email through the Service. Customer is always subject to the Acceptable Use Policy and the terms of this Agreement, and all other Customer Agreements, related to acceptable use. Customer agrees that all emails sent, or caused to be sent, by Customer to or through the Service shall be 100% opt-in and shall not use or contain invalid or forged headers; use or contain invalid or non- existent domain names; employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; use other means of deceptive addressing; use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party; or contain false or misleading information in the subject line or otherwise contain false or misleading content. Customer shall at all times comply with the CAN-SPAM Policy, which may be viewed at http://www.consumer.ftc.gov/. Customer shall indemnify, hold harmless, and defend at its own expense Shape from any claim or controversy arising from Customer’s violation of the CAN-SPAM Act or the FTC’s CAN-SPAM Policy, whether or not such claim or controversy arises directly from breach of this Agreement or any Customer Agreements.
Customer shall not directly or indirectly send, transmit, handle, distribute or deliver any email through the Service (nor assist in any such action, nor engage or enlist another to do so) with content, or in a manner that: (a) is threatening, abusive, harassing, or defamatory; (b) is deceptive, false, misleading or fraudulent; (c) is invasive of another’s privacy; (d) contains vulgar, obscene or indecent material; (e) infringes any third party’s intellectual property right(s); (f) violates export control laws and/or regulations; (g) violates the usage standards or rules of an entity affected by User’s use, including without limitation any ISP or news or user group (h) is legally actionable by private parties and/or (i) is in violation of any applicable local, state, national or international law or regulation, including without limitation the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) , 15 U.S.C. sec. 7701 et seq.
If Shape believes that Customer has breached any of the provisions of Section 26(d) or 26(e) above, it may, without notice, in addition to all other remedies available to it, take such action as it deems appropriate, including but not limited to: Requiring Customer to use a third-party email provider at an additional charge of $250.00 per month for integration and maintenance services, blocking the delivery of Customer’s email messages and/or suspending Customer’s use of the Service. Suspension for any such reason does not terminate Customer’s continuing payment obligations through the suspension date of Service.
Short Message Definitions – The following terms shall have the following meanings with respect to SMS policies:
“Device” shall mean any hardware capable of receiving or sending wireless messages.
“Operator” shall mean the wireless carrier (e.g. T-Mobile) to which Shape has commercial connectivity.
“Subscriber” shall mean the consumer or end-user on a wireless telecommunications network that sends or receives messages via a wireless device. The Subscriber is the consumer of the messaging services provided by Shape and the Customer as enabled by the Operator.
Customer may not directly or indirectly send, transmit, handle, distribute or deliver any SMS messages using a Shape product (nor assist in any such action, nor engage or enlist another to do so) with content, or in a manner that: (a) is threatening, abusive, harassing, or defamatory; (b) is deceptive, false, misleading or fraudulent; (c) is invasive of another’s privacy; (d) contains vulgar, obscene or indecent material; (e) infringes a third party’s intellectual property right(s); (f) violates export control laws and/or regulations; (g) violates the usage standards or rules of an entity affected by User’s use, including without limitation any ISP or news or user group (h) is legally actionable between private parties and/or (i) is in violation of any applicable local, state, national or international law or regulation, including without limitation the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) , 15 U.S.C. sec. 7701 et seq.
Customer shall adhere to the policies of the Operators regarding Content, Service, Subscriber interaction, and Transmission of Messages, and other policies that may be issued by specific Operators or from the Mobile Marketing Association (“MMA”). A breach of this section shall result in immediate and irreparable damage to Shape and Operator, for which Customer shall be fully responsible for all costs and damage amounts including reasonable attorneys’ fees and shall further be a material breach of this Agreement allowing for termination.
Customer agrees to be solely responsible for all Content. Customer will not send Messages for which it does not retain all rights necessary or where approval has not been received from Operator. Customer agrees to be solely responsible for any liability relating to Customer Content or its use of the Shape Service. Under no circumstances will Shape or any of the Shape indemnified parties be responsible for any loss, damage or liability arising out of the Content or Data of any transaction, including any billing or payment issues or mistakes contained in the Content or Data or the use or transmission of the Content or Data. Customer shall indemnify, hold harmless, and defend at its own expense Shape from any claim or controversy arising from Customer’s Content in any form, including Content transmitted via SMS, email, or otherwise.
Customer acknowledges and agrees that with respect to Operator communication services: (i) one hundred (100%) percent of the Messages or Content may not be delivered; and (ii) neither Shape nor any Operator will be liable to Customer for any Messages or Content (or part thereof) deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, network issues, message processing, Operator action, or transmission errors.
Customer acknowledges that Shape is merely a facilitator and accepts no liability or obligations for changes to content executed by Operators. Use of the Service involves transmission through Operators or companies other than Shape and messages and transactions may not be private in certain circumstances and may be changed by those other companies to conform and adapt to requirements of their networks and devices. Shape assumes no responsibility for timeliness, deletions, miss-delivery or failure to store any Content or transaction. Customer may be subject to Operator terms and conditions. Shape expressly disclaims any liability for any outage, failed SMS delivery or other Message failure for any reason, including reasons directly or indirectly attributable to Operators.
For purposes of this Agreement and as a result of the operation of its Software, Shape collects some of the Data generated from the transactions including but not limited to the success or failure of the transaction. Customer acknowledges that Operators cannot guarantee the privacy of Messages, and accordingly Customer agrees that neither Shape nor the Operators will be liable to Customer or any other party for any lack of privacy or security experienced when using the Service. Customer also acknowledges that to the extent permitted by law, Operators have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including without limitation, to protect the efficient operation of their networks or to comply with governmental authorities. All other terms and conditions of this Agreement and the other Customer Agreements notwithstanding, any data privacy right, duty or obligation which is attributable to an Operator is solely the right, duty or obligation of that Operator and not of Shape. Shape has no control over Operator use of Customer data, and expressly disclaims any obligation to compel any Operator conduct, or to disclose any information to Customer the disclosure of which is the responsibility of the Operator.
Notwithstanding anything in this Agreement to the contrary: (a) the services provided by any Operator by means of a wireless network or the Internet, are “as is”, “where is” and “when available”; (b) Shape is not responsible for the availability of any Operator, or the availability and/or performance of the wireless network or the Internet; and (c) Shape is not responsible for any damages or costs Customer suffers or incurs as a result of any instructions given, actions taken or omissions made by Customer.
If Shape believes that Customer is in violation of its SMS messaging policy, it may, without notice, in addition to all other remedies available to it, take such action as it deems appropriate, including but not limited to the following: requiring Customer to send SMS messages via a dedicated short code; blocking the delivery of Customer SMS messages and suspending use of the Service provided.
Customer understands and acknowledges that Shape does not and is not required to provide Emergency Service, where “Emergency Service” is defined as services that connect a user to emergency services personnel or a public safety answering point (“PSAP”), pursuant to applicable regulatory requirements. In the United States, Emergency Service is provided by dialing the digits “911” on a wired or a wireless telephone. Services provided by Shape do not permit the dialing of “911” or any other emergency telephone numbers.
Shape does not provide Emergency Service in conjunction with the Software Suite, the Service or any other services that may be used by Customer in connection with the Service. Shape, its officers, directors, employees, shareholders, affiliates nor agents will be liable for any claim, damage, or loss arising from, or relating to, Customer’s use of any other service provided hereunder to contact a PSAP or Emergency Services personnel. Customer specifically waives, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to Shape’s services or any other service provided hereunder to contact a PSAP or other Emergency Services personnel. Customer agrees to defend, indemnify, and hold harmless Shape, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorneys fees) arising out of the fact that Shape does not offer Emergency Service.
Customer agrees to comply with all federal, state and/or local law (including, without limitation, 47 USC § 227) related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. Customer assumes all liability and responsibility for use of the Service in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment, automatic telephone dialing systems, artificial or prerecorded voice messages, and other telephony and telecommunications products and services. Customer’s limitations on its use of the Service may include but are not limited to: commercial solicitations; advertisements; delivering artificial or prerecorded telephonic messages to homes, businesses, hospitals, cellular phones or paging systems without the prior consent of the called party; and restrictions on the time of day in which such calls are permissible. A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use the Service for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into this Agreement to determine the extent of permissible activities. To assist Customer in complying with certain laws, rules, and regulations relevant to direct marketing and to help Customer determine if a particular phone number is a wireless phone number, Shape may obtain and make available as part of the Services via a third party service provider standard third party wireless number lists (the “Wireless Lists”). In the event such Wireless Lists are made available by Shape, Customer may submit a phone number to Shape, in a manner and format to be determined by Shape, to check against the Wireless Lists to determine if the number submitted matches a number on such lists. Shape disclaims any obligation to conduct such checks absent a Customer request. Customer requests to check a phone number against a Wirelist List or any other list may be subject to further fees as stated on your Order Form. Customer agrees and acknowledges that Shape makes no representations, warranties or covenants relating to the availability of the Wireless Lists at any particular time during the Term of this Agreement. Customer further acknowledges and agrees that, while Shape may make available the Wireless Lists to assist Customer in complying with certain laws, rules, and regulations relevant to direct marketing, Customer’s use of the Wireless Lists could generate results that are not compliant with such laws due to inaccuracies or errors in the Wireless Lists as provided by their publishers. Shape DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY WITH RESPECT TO THE WIRELESS LISTS OR THE USE OF SUCH WIRELESS LISTS TO ENSURE CUSTOMER’S COMPLIANCE WITH ANY LAW, RULE OR REGULATION. WITHOUT LIMITING THE FOREGOING, Shape DOES NOT WARRANT OR GUARANTEE THAT THE WIRELESS LISTS WILL BE ACCURATE OR ERROR-FREE OR THAT THE USE OF SUCH WIRELESS LISTS WILL ACCURATELY INDICATE WHETHER ANY PHONE NUMBER SUBMITTED BY CUSTOMER TO Shape IS OR IS NOT A WIRELESS NUMBER. Shape shall have no responsibility or liability to Customer, under this Agreement or otherwise, with respect to (x) any inaccuracies or errors in the Wireless Lists; and (y) Customer’s use of the results obtained from accessing the Wireless Lists. Customer agrees that Shape will not be responsible for Customer’s use of the Service, and Customer agrees to indemnify Shape for any claims, liabilities or expenses (including attorneys’ fees) incurred by Shape based upon Customer’s use of the Service in any manner not in compliance with federal, state or local laws (including any private right of action thereunder). Customer is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which Customer intends to send communications or Messages using the Service. Customer agrees to periodically review the list of recipients to be contacted, to contact only those persons who the Customer is legally permitted to contact from Customer Data, and only in the manner permitted, under federal, state and local law, and to delete those recipients that no longer wish to receive communications from Customer. If Customer is advised by any party that they do not wish to receive communications from Customer, then Customer agrees to promptly add those parties to its internal company-specific Do Not Call List, and thereafter refrain from calling such parties. If Shape determines, in its sole discretion, that the receipt of communications via the Service is not consensual, or violates any federal, state and/or local rule and regulation, or is harassing to consumers or businesses, Shape may suspend the Turbo Dialer service for Customer until Shape is reasonably satisfied that the violation is cured. Such suspension does not terminate Customer’s obligations to pay any sums due under a Customer Order.
Customer agrees that usage of Turbo Dialer will not exceed two thousand (2,000) minutes of calling time per license each month (“Reasonable Usage Limit”). In circumstances where Customer exceeds the Reasonable Usage Limit, Shape may charge Customer for minutes of call time used that exceed two thousand minutes of calling time per license at five (5) cents per minute.
Notwithstanding anything in this Agreement to the contrary: (a) Turbo Dialer is provided on an “as is” and “as available” basis; (b) Shape does not warrant that the Turbo Dialer service will be uninterrupted or that all communications will be delivered; (c) Shape makes no warranties, expressed or implied, including, but not limited to, any implied warranties or merchantability or fitness for a particular purpose in relation to Turbo Dialer; and (d) Customer understands that Turbo Dialer may be inaccessible or inoperable for reasons outside of Shape’s control including but not limited to (i) Customer equipment malfunctions; or (ii) service interruptions caused by independent telecommunication providers.
Turbo Dialer multi-line dialing customers agree to record and maintain a safe harbor message that complies with the Federal Trade Commission ”Telemarketing Sales Rule” by stating the name and telephone number of the seller on whose behalf a call is placed.
Shape Software Inc. (“Shape”) makes no representation, warranty, or guaranty regarding Shape’s service-level agreement, uptime, downtime or any software, services, or products provided or sold by Shape. Shape does not provide any refunds or compensation related to the availability or quality of its features, software, services, or support. While Shape’s uptime has historically been over 99%, past performance should not be relied upon and is not an indicator of future results or performance.
Customer is responsible, and Shape shall not have any responsibility, for all activities of Customer’s Users or that occur using the security credentials for accessing under Customer’s Users’ accounts. Without limiting the generality of the foregoing, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service (including, without limitation, causing all Users to change temporary passwords issued by Shape for accessing the Service), and Customer shall notify Shape promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal and foreign laws and regulations in using the Service. To realize the full value of Shape’s Services and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, one or more content creators, a sales sponsor, an executive sponsor and a technical resource (or equivalent). Shape need not recite with specificity your obligations, or other best practices, in order to maximize the value of your Order. Shape is not responsible for any failure or refusal to supply adequate personnel or other administrative needs reasonably necessary to make full use of Shape services. Responsibilities that may be required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Service; attending regular success review meetings; and supporting the integration of the Service with other sales and marketing systems.
By using any of Shape’s Services (also referred to as “CRM”) with other parts of the Service, you understand that all Contact Information will be stored in a unified database of Contacts associated with your subscription, and that all workflows you use will pull from this unified list of Contacts.
If you use our CRM, you may see fields in our company database marked with an orange dot, or highlighted in some other way. These fields are those that we let our CRM users update, to aim to keep our company database as current as possible. If you choose to submit updated information to these fields, you grant us the right to use such information in any manner that we choose (including, without limitation, publicly), without any payment or attribution to you. You represent and warrant that you have a right to share such information with us for our use and that you are not violating any confidentiality obligations by submitting the information. This information submitted by you will not be considered Customer Data or Confidential Information under this Agreement.
We do not guarantee the availability of our CRM’s outbound calling feature in any or all geographical areas. If you are interested in obtaining a list of countries to which we currently offer outbound calling, please contact our Support team. We may update this list at any time without notice to you. We may also disable your ability, or charge you a fee, to make calls to certain countries if we choose to, even if we generally offer outbound calling to these countries. One reason we may do this is if you are making a disproportionate or excessive number of calls to these countries.
Certain features of the CRM allow you to integrate your email account with the CRM. By enabling those features, you grant us access to your incoming mail, inbox history, and contacts to enable us to identify relevant emails to be stored within the CRM. The CRM tracks email correspondence that you flag for tracking by sending the email from inside the CRM, BCC’ing the email to the CRM, or otherwise opting to have an email tracked. You understand that the correspondences you track will be visible to other users on your CRM team.
If we make alpha or beta access to some or all of the Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
In providing the Service, Shape utilizes (i) certain audio and visual information, documents, software and other works of authorship and (ii) other technology, software, products, processes, algorithms, user interfaces, know- how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material and information used or provided by Shape in providing the Service (collectively “Shape Technology”), which are covered by intellectual property rights, as between the parties, owned by or licensed to Shape (collectively “Shape IP Rights”). Other than as is expressly set forth in this Agreement, no license or other rights in or to the Shape Technology or the Shape IP Rights are granted to Customer, and all other rights are expressly reserved by Shape. Customer grants to Shape a non-exclusive, royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information (“Feedback”) provided by Customer or its Users and to reproduce, distribute, modify create derivative works of, publicly perform, publicly display and sublicense such Feedback in connection with the operation of the Service. With respect to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users, Customer represents and warrants that such Feedback, in whole or in part, (a) is legally distributable by Customer, either because Customer owns the copyright or because Customer has fully complied with any copyright terms associated with the software or content, (b) contains no third party software and (c) does not violate, misappropriate or infringe any intellectual property rights of any third party.
Customer hereby grants to Shape a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use (i) Customer Data (including, without limitation, personally identifiable information that may be contained therein) in connection with Shape’s operation of the Service and performance of its obligations under this Agreement, and (ii) de-personalized Customer Data to create and develop analytical and statistical analysis relating to the use of the Customer Data (“Shape Analytical Data”). Customer hereby authorizes Shape to make any commercial use of the Shape Analytical Data including, without limitation, sharing such Shape Analytical Data with third parties; provided that Shape does not sell, trade, or otherwise transfer outside of Shape any Customer Data that personally identifies any third party sales lead. Further, Shape may use Customer’s name to identify Customer as a customer of Shape on Shape’s website and in a list of Shape’s customers for use and reference in Shape’s corporate, advertising, promotional and marketing materials. In addition, Shape may issue press releases identifying Customer as a customer of Shape and describing Customer’s use of the Service and the benefits that Customer expects to receive from its use of the Service.
This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Shape Software Content, the Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at (which we may update at any time without notice to you) and you may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service (unless, of course, you have a source other than the Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service or Consulting Services, without payment or attribution to you.
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Service and Consulting Services to you and as permitted by this Agreement. If you are using the Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, without limitation, business and marketing plans, technology and technical information, product designs and business processes. Without limiting the generality of the foregoing, the terms of this Agreement, the Service and the Shape Technology shall be deemed to be Shape’s Confidential Information. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party without confidentiality obligations prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received without restrictions on use or disclosure from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to a third party, other than its employees or consultants who have a need to know such information in connection with the Receiving Party’s performance hereunder, or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
A Receiving Party may disclose Confidential Information to the extent required by any applicable law, regulation or court; provided however, that the Receiving Party will (to the extent it is not prohibited from doing so) notify the Disclosing Party in writing, promptly after becoming aware of its obligations to make such a disclosure and will permit the Disclosing Party to seek to challenge or limit such required disclosure. Further, each party may disclose Confidential Information of the other party for the limited purpose of enforcing its rights under this Agreement before a court of competent jurisdiction, provided that such disclosure is accomplished in such a manner so as to protect the rights of the parties to this Agreement to the maximum extent reasonably possible.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 17, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such breach is likely to result in irreparable harm to the Disclosing Party for which legal remedies are inadequate.
You grant us the right to add your name and company logo to our customer list and website. Customer agrees that Shape may use Customer’s name and trademarks in Shape’s advertising, publicity and other promotional activities. Shape shall comply with applicable trademark usage guidelines or other instructions provided by Customer in writing regarding the proper use of its trademarks. If Customer does not supply such usage guidelines or other instructions, Customer shall be deemed to have granted Shape a freely-revocable license to use the name and logo(s) of Customer in its marketing materials. Customer shall indemnify and hold harmless Shape from any claim or controversy arising from Customer’s logo or other intellectual property, including from claims under the Digital Millennium Copyright Act that a Customer’s logo infringes upon the intellectual property rights of a third party.
Customer agrees to defend, indemnify and hold Shape, its affiliates, licensors and business partners, and its and their respective officers, directors, employees, agents and representatives, harmless against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) Customer experiences as a result of using any products or services provided by Shape Software Inc. Customer agrees to defend, indemnify and hold Shape, its affiliates, licensors and business partners, and its and their respective officers, directors, employees, agents and representatives, harmless against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Shape by a third party relating to or arising out of (i) Customer’s use of the Service and/or any Third Party Services; (ii) Customer Data or the use of Customer Data; or (iii) Customer’s violation of any of the terms and conditions of this Agreement; provided, that Shape (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Shape of all liability); and (c) provides to Customer at Customer’s cost all reasonable assistance. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
THE SERVICE, SHAPE TECHNOLOGY AND THIRD PARTY SERVICES ARE PROVIDED “AS IS.” CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ITS USE OF THE SERVICE. SHAPE AND ITS LICENSORS DO NOT WARRANT THE SERVICE OR THIRD PARTY SERVICES WILL BE ERROR FREE, WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR THE PERFORMANCE OR THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICE OR THIRD PARTY SERVICES. SHAPE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHAPE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Shape AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR THIRD PARTY SERVICES WILL BE UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA STORED WITHIN THE SERVICE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WITH THE EXCEPTION OF THE AVAILABILITY COMMITMENT SET FORTH IN SECTION 9a, Shape AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS.WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, SHAPE SOFTWARE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE, SHAPE SOFTWARE CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER SHAPE, INCUDING ITS AFFILIATES AND ASSIGNS, NOR ITS LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. SHAPE’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT, IN ANY CASE, EXCEED THE TOTAL CHARGES PAID BY CUSTOMER TO Shape HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. SOME JURISDICTIONS PROHIBIT LIMITING LIABILITIES, SO IN CERTAIN JURISDICTIONS THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE TO YOU.
Any disputes by Customer must be described in writing and submitted to Shape by Customer within thirty (30) days following the date of the dispute. Customer shall not be entitled to any refund or credit relating to any dispute about which Shape is first notified after such thirty (30)-day period. Payment obligations not promptly disputed are deemed stipulated to by their respective obligors, who accept such payment obligations without refund, setoff, or other adjustment to payment obligations stated on the instrument creating or reciting such an obligation (such as a Customer Order). Customer must identify the specific issue that is being disputed and submit detailed data and information in support of the dispute. The written notice of dispute must be signed by an officer of Customer and include a statement warranting the dispute and accompanying detail is accurate to the best knowledge and belief of Customer and the officer submitting it. A billing dispute does not relieve Customer from paying its invoices in accordance with the terms of this Agreement. Should Customer dispute a portion of its invoice, Customer shall pay all undisputed amounts in accordance with this Agreement.
We may update and change any part or all of these Terms of Service, including the fees and charges associated with the use of the Service. The updated Customer Terms of Service will become effective and binding when posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
We will comply with all U.S. state and federal laws (where applicable) in our provision of the Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Service or Consulting Services to prohibited countries or individuals or permit use of the Service or Consulting Services by prohibited countries or individuals.
If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Your physical address determines which Shape Software entity you are contracting with for the Subscription Services. For this Agreement, “located in” means your shipping or physical address.
If you are located in North America or South America, then you are contracting with Shape Software. For contracts with Shape Software, both parties consent to the exclusive jurisdiction and venue of the courts in Los Angeles, California, U.S.A. for all disputes arising out of or relating to the use of the Service or the Consulting Services.
EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, AND OUR LIABILITY FOR FULL LIABILITY CLAIMS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE TO YOU.”