Terms of Service
This Agreement for Shape (the "Agreement") is made and entered into between Shape and the entity agreeing to these terms ("Customer"). The Agreement consists of Part A (General Terms), Part B (Specific Terms), Part C (Definitions) any addenda (if applicable), and each Order Form, including any statements of work, and each amendment to any of the foregoing. This Agreement is effective as of the date of the last signature appearing on Customer's initial Order Form (the "Effective Date").
A. General terms
Shape will provide the Software and Services specified in an Order Form in accordance with this Agreement, and Customer and its End Users may use the Services in accordance with Part B (Specific Terms).
2. Customer Obligations
a. Consents. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services and (b) Shape’s accessing, storing, and processing of data provided by Customer (including Customer Data, if applicable) under this Agreement and the Order Form.
b. Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with this Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Services, and (c) promptly notify Shape of any unauthorized use of, or access to, the Services of which Customer becomes aware.
c. Use Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sell, resell, sublicense, transfer, or distribute the Services; (c) access or use the Services (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) in a manner that breaches, or causes the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA; (d) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Services; (e) provide the Services on a time sharing, hosting, service provider or other similar basis, except as part of a Customer Application for External Business Purposes; (f) provide or obtain unauthorized access to the Services, including by sharing the log-on credentials for any End User with others; (g) circumvent any technical measures in the Software or Services; (h) conduct benchmarking tests or other comparative analysis of the Services for publication or disclosure to third parties or (i) disrupt the security, integrity or performance of the Services in any way.
3. Payment Terms
a. Payment. Shape will invoice Customer for the Fees for the Services and TSS. Customer will pay all invoiced amounts by the Payment Due Date. Unless otherwise provided in this Agreement or required by law, Fees for Services are non-refundable. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice.
b. Usage and Invoicing. Shape’s measurement tools will be used to determine Customer's usage of the Services. Each invoice will include data in sufficient detail to allow Customer to validate the Services purchased and associated Fees. If Customer exceeds the number of End Users, Scope of Use, or Deployment Attributes, Customer or Shape will, upon becoming aware, promptly notify the other party and the parties agree to discuss in good faith the additional fees due by Customer to Shape for such over-deployment. The agreed upon additional fees associated with the over-deployment will be memorialized in a new Order Form. This is only in the case that Shape and the Customer have agreed to payment being subject to number of End Users, Scope of Use, or Deployment Attributes.
c. Additional Usage. Customer may purchase additional Deployment Attributes (including adding End Users) during an Order Term by executing an additional Order Form. Such purchase will have a pro-rated term ending on the last day of the applicable Order Term. Deployment Attributes cannot be decreased during the Order Term.
d. Taxes. Shape will itemize any invoiced Taxes. Customer will pay invoiced Taxes unless Customer provides a valid tax exemption certificate. Customer may withhold Taxes if Customer provides a valid receipt evidencing the taxes withheld.
e. Invoice Disputes. Customer must submit any invoice disputes to email@example.com before the Payment Due Date. If the parties determine that Fees were incorrectly invoiced, then Shape will issue a credit equal to the agreed amount.
f. Overdue Payments.
i. If Customer's payment is overdue, then Shape may (i) charge interest on overdue amounts at 1.5% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full, and (ii) Suspend the Services.
ii. Customer will reimburse Shape for all reasonable expenses (including attorneys' fees) incurred by Shape in collecting overdue payments except where such payments are due to Shape’s billing inaccuracies.
g. Suspension for Overdue Payment. Shape may Suspend the Services under Section 3(f) (Overdue Payments) only if Customer's payment is overdue for more than 14 days after the Payment Due Date. Shape will notify Customer at least 7 days before suspension.
h. Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then (i) Shape will invoice Customer without a purchase order number, and (ii) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order are void.
4. Intellectual Property
a. Intellectual Property Rights. Except as expressly described in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or Intellectual Property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Customer Applications, and Shape retains all Intellectual Property Rights in the Services and Software.
b. Feedback. At its option, Customer may provide feedback and suggestions about the Services to Shape ("Feedback"). If Customer provides Feedback, then Shape may use that Feedback without restriction and without obligation to Customer.
a. Use and Disclosure of Confidential Information. The Recipient will only use the Disclosing Party's Confidential Information to exercise its rights and fulfill its obligations under this Agreement and Order Form, and will use reasonable care to protect against the disclosure of the Disclosing Party's Confidential Information. Notwithstanding any other provision in this Agreement, the Recipient may disclose the Disclosing Party's Confidential Information (i) to its Delegates who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 5 (Confidentiality); (ii) with the Disclosing Party's written consent; or (iii) subject to Section 5(b) (Legal Process), as strictly necessary to comply with Legal Process.
b. Legal Process. If the Recipient receives Legal Process for the Disclosing Party's Confidential Information, the Recipient will: (i) promptly notify the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so; (ii) attempt to redirect the third party to request it from the Disclosing Party directly; (iii) comply with the Disclosing Party's reasonable requests to oppose disclosure of its Confidential Information; and (iv) use commercially reasonable efforts to object to, or limit or modify, any Legal Process that the Recipient reasonably determines is overbroad, disproportionate, incompatible with applicable law, or otherwise unlawful. To facilitate the request in (ii), the Recipient may provide the Disclosing Party's basic contact information to the third party.
6. Marketing and Publicity
Customer may state publicly that it is a Shape customer and display Shape Brand Features in accordance with the Trademark Guidelines. Shape may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party's Brand Features only as permitted in this Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.
7. Representations and Warranties
Each party represents and warrants that it (i) has full power and authority to enter into this Agreement and (ii) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.
Except as expressly provided for in this Agreement, to the fullest extent permitted by applicable law, Shape (i) does not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (ii) makes no representation about content or information accessible through the Services.
a. Shape Indemnification Obligations. Shape will defend Customer and its Covered Affiliates, and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the Shape Indemnified Materials used in accordance with the Agreement infringe the third party's Intellectual Property Rights.
b. Customer Indemnification Obligations. Customer will defend Shape and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (i) any Customer Indemnified Materials or (ii) Customer's or an End User's use of the Services in breach of the the Use Restrictions.
c. Indemnification Exclusions. Sections 9(a) (Shape Indemnification Obligations) and 9(b) (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (i) the indemnified party's breach of this Agreement or (ii) a combination of the Shape Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under this Agreement, unless the combination is required by this Agreement.
d. Indemnification Conditions. Sections 9(a) (Shape Indemnification Obligations) and 9(b) (Customer Indemnification Obligations) are conditioned on the following:
i. Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 9(d)(1) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 9(a) (Shape Indemnification Obligations) or 9(b) (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
ii. Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (A) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (B) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
i. If Shape reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Shape may, at its sole option and expense, (A) procure the right for Customer to continue using the Services, (B) modify the Services to make them non-infringing without materially reducing their functionality, or (C) replace the Services with a non-infringing, functionally equivalent alternative.
ii. If Shape does not believe the remedies in Section 9(e)(1) are commercially reasonable, then Shape may Suspend or terminate the impacted Services.
f. Sole Rights and Obligations. Without affecting either party's termination or Suspension rights, this Section 9 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 9 (Indemnification).
a. Limited Liabilities.
i. To the extent permitted by applicable law and subject to Section 10(b) (Unlimited Liabilities), neither party will have any Liability arising out of or relating to this Agreement for any
A. indirect, consequential, special, incidental, or punitive damages or
B. lost revenues, profits, savings, or goodwill.
ii. Each party's total aggregate Liability for damages arising out of or relating to this Agreement is limited to the Fees Customer paid under this Agreement during the 12 month period before the event giving rise to Liability.
b. Unlimited Liabilities. Nothing in this Agreement excludes or limits either party's Liability for:
i. death, personal injury, or tangible personal property damage resulting from its negligence or the negligence of its employees or agents;
ii. its fraud or fraudulent misrepresentation;
iii. its obligations under Section 9 (Indemnification) of Part A (General Terms);
iv. its infringement of the other party's Intellectual Property Rights;
v. its payment obligations under this Agreement; or
vi. matters for which liability cannot be excluded or limited under applicable law.
11. Term and Termination
a. Agreement Term. This Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the "Term").
b. Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to this Agreement, Customer may terminate this Agreement or an Order Form for convenience with 30 days' prior written notice to Shape.
c. Termination for Breach.
i. Termination of an Order Form. Either party may terminate an Order Form if the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice.
ii. Termination of this Agreement. Either party may terminate this Agreement if the other party (i) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice, (ii) ceases its business operations, or (iii) becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days.
d. Effects of Termination. If this Agreement terminates, then all Order Forms also terminate. If an Order Form terminates or expires, then after that Order Form's termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), and (b) Shape will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms.
e. Survival. The following Sections will survive expiration or termination of this Agreement: Section 3 (Payment Terms), Section 4 (Intellectual Property), Section 5 (Confidentiality), Section 8 (Disclaimer), Section 9 (Indemnification), Section 10 (Liability), Section 11(d) (Effects of Termination), Section 12 (Miscellaneous) and Part C (Definitions).
a. Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Shape must be sent to firstname.lastname@example.org. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
b. Emails. The parties may use emails to satisfy written approval and consent requirements under this Agreement.
c. Assignment. Neither party may assign this Agreement without the written consent of the other, except to an Affiliate where (i) the assignee has agreed in writing to be bound by the terms of this Agreement, (ii) the assigning party has notified the other party of the assignment, and (iv) if the Customer is the assigning party, the assignee is established in the same country as Customer. Any other attempt to assign is void.
d. Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (i) that party will give written notice to the other party within 30 days after the change of Control and (ii) the other party may immediately terminate this Agreement any time within 30 days after it receives that written notice.
e. Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
f. Subcontracting. Shape may subcontract obligations under this Agreement but will remain liable to Customer for any subcontracted obligations.
g. No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
h. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
i. Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
j. No Third-Party Beneficiaries. This Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.
k. Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
l. Governing Law. All claims arising out of or relating to this Agreement or the Services will be governed by California law, excluding that state's conflict of laws rules, and will be litigated exclusively in the federal or state courts of Santa Clara County, California; the parties consent to personal jurisdiction in those courts.
m. Amendments. Except as specifically described otherwise in this Agreement, any amendment to this Agreement must be in writing, expressly state that it is amending this Agreement, and be signed by both parties.
n. Independent Development. Nothing in this Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products, programs, or technology that are similar to the subject of this Agreement, provided that the party does not breach its obligations under this Agreement in doing so.
o. Entire Agreement. This Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in this Agreement.
p. Conflicting Terms. If there is a conflict among the documents that make up this Agreement, then this should be the prevailing document.
q. Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will control.
r. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
s. Electronic Signatures. The parties consent to electronic signatures.
t. Headers. Headings and captions used in this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.
1. Governing Law; Arbitration.
(1) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED SOFTWARE OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) ("Dispute") WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA'S CONFLICTS OF LAWS RULES.
(2) The parties will try in good faith to settle any Dispute within 30 days after theDispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement ("Rules").
(3) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA.
(4) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.
(5) Subject to the confidentiality requirements in Subsection (7) below, either party may petition any competent court to issue any order necessary to protect that party's rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Subsection (5) above.
(6) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.
(7) Any arbitration proceeding conducted in accordance with this Section 12(l) (Governing Law; Arbitration) will be considered Confidential Information under Section 5 (Confidentiality) of Part A (General Terms), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to, the arbitration proceedings. In addition to the disclosure rights under Section (Confidentiality) of Part A (General Terms), the parties may disclose the information described in this Subsection (7) to a competent court as may be necessary to file any order under Subsection (5) or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).
(8) The parties will pay the arbitrator’s fees, the arbitrator's appointed experts' fees and expenses, and the arbitration center's administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party's obligation to reimburse the amount paid in advance by the prevailing party for these fees.
(9) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
B. Specific terms for Shape products
1. Using the Services
a. Use by Customer. Shape will provide the Services to Customer by (a) providing access to an Instance for the Shape Hosted Deployment or (b) providing a Docker Image for the Customer Self-Hosted Deployment. Customer may only use the Services with databases and servers licensed and/or owned by Customer. Customer may configure the Services for Internal Business Purposes and External Business Purposes only to the extent authorized in the Order Form.
b. Use by Affiliates. Customer Affiliates may (i) access and use the Services as End Users, subject to the terms of Customer's Order Form so long as Customer remains responsible for the Affiliates' compliance with the Agreement and the applicable Order Form, or (ii) execute a separate Order Form that incorporates this Agreement by reference
c. External Business Users. If the Order Form includes PBS and the PBS Client is bound to a written agreement with Customer that is at least as protective of Shape as the rights and obligations contained in this Agreement, then Customer may make the Services available for use by PBS Users, including by embedding the Services into a Customer Application; Customer may not accept, and acknowledges that Shape will not be bound by, any terms or conditions with the PBS Client that modify, add to or change in any way the Agreement or Order Form.
d. Customer Responsibilities. Customer will be solely responsible, and Shape disclaims responsibility for any acquisition, implementation, support or maintenance of third-party products or services purchased by Customer that may interoperate with the Services.
e. Beta Features. Shape may make Beta Features available to End Users subject to the provisions in the Service Specific Terms.
2. Data Processing and Security
To the extent Customer provides Shape with access to Customer Data under this Agreement, the following will apply:
a. Protection of Customer Data. Shape will only access or use Customer Data to provide the Services and TSS ordered by Customer to Customer and will not use it for any other products, services, or advertising. Shape has implemented and will maintain administrative, physical, and technical safeguards designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data stored in the Instance.
Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Shape will not be responsible for any breach or loss to the extent resulting from Customer's security configuration or Customer's administration of the Services.
3. Services Use Review
Within 30 days of Shape’s reasonable written request, Customer will provide a sufficiently detailed written usage report listing the Deployment Attributes being used for each Scope of Use, the number and type of End Users using the Services during the requested period, and the Instance(s) deployed, along with the related license key(s). To the extent the usage reports can be measured by a ping from Shape’s license server, the ping will serve as the report. If there is a PBS deployment, Customer will provide a complete list of the software and applications where the Software and Services are deployed. If requested, Customer will provide reasonable assistance and access to information to verify the accuracy of any information provided to Shape, which verification may include access to records relating to Customer's use of the Services. If the review indicates an underpayment, Customer will pay the additional Fees associated with the underpayment.
4. Updates to Services and Terms
a. Changes to Services.
i. Limitations on Changes. Shape may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.
b. Changes to Terms. Shape may update the URL Terms, provided the updates do not (a) result in a material reduction of the security of the Services, (b) expand the scope of or remove any restrictions on Shape’s processing of Customer Data (if applicable), or (c) have a material adverse impact on Customer's rights under the URL Terms. Shape will notify Customer of any material updates to URL Terms.
c. Permitted Changes. Sections 4(a) (Changes to Services) and 4(b) (Changes to Terms) do not limit Shape’s ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to Beta Features or new or pre-general availability Services, offerings, or functionality.
5. Temporary Suspension
a. Services Suspension. Shape may Suspend Services if (a) necessary to comply with law or protect the Services or Shape’s infrastructure supporting the Services.
b. Limitations on Services Suspensions. If Shape Suspends Services under Section 5(a) (Services Suspension), then (a) Shape will provide Customer notice of the cause for Suspension without undue delay, to the extent legally permitted, and (b) the Suspension will be to the minimum extent and for the shortest duration required to resolve the cause for Suspension.
6. Technical Support
Unless otherwise agreed in an Order Form, Shape will provide Technical Support Services to Customer during the Order Term in accordance with the Technical Support Services Guidelines. Customer is responsible for the technical support of its Customer Applications, including PBS Users using the Services for External Business Purposes.
7. Provision of Software
Shape may make Software available to Customer in connection with Customer's use of the Services, including third-party software. Some Software may be subject to third-party license terms.
8. Ceasing Software Use
If this Agreement or the Order Form terminates or expires, then Customer will stop using the Software.
9. Professional Services
If Customer purchases PSO Services, such PSO Services will be provided in accordance with a separate agreement between Customer and Shape.
10. Termination of Previous Agreements
If Customer has previously entered into an agreement for Shape to provide the Software or Services, then that agreement will terminate on the Services Start Date, and this Agreement will govern the provision and use of the Services going forward.
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Shape” refers to either (i) Teamspace Technologies Ltd, the entity or (ii) the SaaS product provided to the “End User”.
"BAA" or "Business Associate Agreement" is an amendment to this Agreement covering the handling of Protected Health Information (as defined in HIPAA).
"Beta Features" have the meaning set forth in the Service Specific Terms.
"Brand Features" means each party's trade names, trademarks, logos, domain names, and other distinctive brand features.
"Confidential Information" means information that one party or its Affiliate ("Disclosing Party") discloses to the other party ("Recipient") under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer's Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the recipient.
"Control" means control of greater than 50% of the voting rights or equity interests of a party.
"Covered Affiliate" means Customer's Affiliate using the Services (i) via an Order Form that is subject to the terms of this Agreement, and (ii) in compliance with the Agreement and the applicable Order Form.
"Customer Application" means a software program that Customer creates or hosts and that uses the Services. A Customer Application may be a website.
"Customer Data" means (a) all data in Customer's databases provided to Shape by Customer or End Users via the Services and (b) all results provided to Customer or End Users for queries executed against such data via the Services.
"Customer Self-Hosted Deployment" means the Software installed by or for Customer at Customer's premises or on a Customer-controlled server within a data center selected and managed by Customer.
"Customer Indemnified Materials" means Customer Data and Customer Brand Features.
"Delegates" means the Recipient's employees, Affiliates, agents, or professional advisors.
"Deployment Attributes" means the quantified usage of the Services as specified on an Order Form, which include, but are not limited to the number of Instances, End Users, API calls or other licensing attributes defined by the Scope of Use.
"Dispute" has the meaning set forth in Section 13 (Regional Terms) of Part A (General Terms).
"Documentation" means the user guides and manuals for the Services provided by Shape for Customer's own internal use.
"End User" or "Customer End User" means an individual that Customer permits to use the Services. End Users may include employees of Customer's Affiliates or PBS Users.
"Export Control Laws" means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
"External Business Purposes", "PBS" or "Powered by Shape" means use of the Services by or for the benefit of Customer's customers or clients and their users or other third parties.
"Fees" means the product of the amount of Services or Software ordered by Customer multiplied by the Prices, plus any applicable Taxes.
"Shape Indemnified Materials" means the Services, Software and Shape’s Brand Features.
"High Risk Activities" means activities where the use or failure of the Services would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage (such as the creation or operation of weaponry).
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
"including" means including but not limited to.
"In-Product Services" means the services hosted and made accessible by Shape through the Software, specifically licensing data, configuration backups, system error reports, data actions and support tickets.
"Indemnified Liabilities" means any (a) settlement amounts approved by the indemnifying party, and (b) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
"Instance" means one single configuration of the Software's administrative settings and application database, subject to the platform restrictions detailed in the Order Form. Each Instance requires a unique license key to operate. Multiple identically configured Instances running with separate configurations are considered separate instances.
"Intellectual Property" or "IP" means anything protectable by an Intellectual Property Right.
"Intellectual Property Right(s)" means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
"Internal Business Purposes" means use of the Services by or for the benefit of Customer's internal operations.
"Legal Process" means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
"Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
"Shape Hosted Deployment" means the Software installed by Shape on a web connected platform that is run in a third-party hosting facility designated by Shape, unless otherwise agreed by the parties in an Order Form. A Shape Hosted Deployment includes the In-Product Services.
"Shape Service Specific Terms" means the then-current terms specific to the Services.
" Technical Support Services" or "TSS" means the then-current technical support service provided by Shape to Customer under the Technical Support Services Guidelines.
"Shape Technical Support Services Guidelines" or "TSS Guidelines" means the then-current technical support service provided by Shape to Customer.
"Notification Email Address" means the email address(es) designated by Customer in the Order Form.
"Order Form" means an order form executed by Customer, or Customer Affiliate, and Shape specifying the Services Shape will provide to Customer under this Agreement.
"Order Term" means the period of time starting on the Services Start Date for the Services and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.
"Payment Due Date" means 30 days from the invoice date.
" Client" means (i) the Shape User or (ii) Customer's client that authorizes use of the Services by Shape Users.
"Shape User" is an individual authorized to use the Services for External Business Purposes as an End User subject to the terms of the applicable Order Form.
"Prices" means the then-current applicable prices for the Services or Software agreed to by Shape and Customer in an Order Form or amendment to this Agreement. Prices do not include Taxes.
"PSO Services" means advisory and consulting services purchased by Customer from Shape.
"Scope of Use" means Customer's specific use case for the Services as defined in an Order Form, which may include limitations on Customer's use for Internal Business Purposes and/or External Business Purposes.
"Services" means an integrated platform, including cloud-based infrastructure (if applicable), and software components (including any associated APIs) that enables businesses to analyze data and define business metrics across multiple data sources. Services exclude Third Party Offerings.
"Services Start Date" means either the start date described in the Order Form or, in the absence of any such date, the date Shape makes the Services available to Customer.
"Software" means any downloadable tools, including the licensed data platform provided under this Agreement, and any other computer software provided by Shape for use in connection with the Services, and any copies, modifications, derivative works or enhancements thereto, excluding any Third-Party Offerings.
"Suspend" or "Suspension" means disabling or limiting access to or use of the Services or components of the Services.
"Taxes" means all government-imposed taxes, except for taxes based on Shape’s net income, net worth, asset value, property value, or employment.
"Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
"Third-Party Offerings" means (a) third-party services, software, products, and other offerings that are not incorporated into the Services or Software and (b) offerings identified in the " Third-Party Offerings" section of the Service Specific Terms.
"Trademark Guidelines" means Shape’s Brand Terms and Conditions.
"URL" means a uniform resource locator address to a site on the internet.
"URL Terms" means Terms Provided in this agreement.
"Use Restrictions" means the restrictions in Section (A)(2)(c) (Use Restrictions).
For any additional information contact email@example.com.
54 Brook Mews,
London W1K 4EG, UK