Commercial Terms

shaped.ai Inc.
COMMERCIAL TERMS
Last modified: July 2, 2024

1.          Summary.

(a)        Welcome to Shaped! Thanks for using our recommendation, ranking and machine-learning services and our software platform (our “Platform”) and certain professional services to implement, maintain and manage resources on the Platform (collectively, the “Services”). We offer our Services and make available our Platform from time to time through various mediums including Software as a Service available online. Our Services are provided by us – and when we say “us” or “we” that means shaped.ai Inc., a Delaware corporation (which we refer to herein as the “Company”) with an address at 185 Wythe Ave f2, Brooklyn, NY 11249.

(b)        By using our Platform and Services, you – like all of our users – agree to our Terms of Services (https://www.shaped.ai/terms-of-service) (“Terms of Service”) and Privacy Policy (https://www.shaped.ai/privacy-policy) (“Privacy Policy”). If you are an enterprise user and pay a “Fee” (as defined below) then you are also subject to these Commercial Terms in addition to any applicable “Order Form” (as defined below), subscription documents or other agreements and addendums that you may have already entered into or may hereafter enter into with Shaped (collectively, “Shaped Agreements”). To the extent these Commercial Terms conflict with the terms of any Shaped Agreements, the terms of the Shaped Agreements shall control, meaning if you enter into a specific commercial agreement with Shaped related to your use of the Platform or Services then that specific agreement will control over these Commercial Terms. To the extent these Commercial Terms conflict with the terms of the Terms of Service or Privacy Policy, the Commercial Terms shall control.

(b)            By using our Platform and Services, you – like all of our users – agree to our Terms of Services (https://www.shaped.ai/terms-of-service) (“Terms of Service”) and acknowledge that our Privacy Policy (https://www.shaped.ai/privacy-policy) (“Privacy Policy”) applies to anyone accessing or using our Platform and Services. If you are a user who wishes to access and use the Services and Platform for commercial purposes and pay a “Fee” (as defined below), then your access to and use of the Platform and Services are also subject to these Commercial Terms in addition to any applicable “Order Form” (as defined below), subscription documents or other agreements and addendums that you may have already entered into or may hereafter enter into with Shaped (collectively, “Shaped Agreements”). To the extent these Commercial Terms conflict with the terms of any Shaped Agreements, the terms of the Shaped Agreements shall control, meaning if you enter into a specific commercial agreement with Shaped related to your use of the Platform or Services then that specific agreement will control over these Commercial Terms. To the extent these Commercial Terms conflict with the terms of the Terms of Service or Privacy Policy, the Commercial Terms shall control.

(c)        We refer to you in these Commercial Terms as the “Customer.” All other capitalized words used in these Commercial Terms are either defined here (generally by using quotes the first time we use the term) or in our Terms of Service or Privacy Policy.

2.          Services and Support.

(a)        Subject to the these Commercial Terms and the Shaped Agreements, Shaped shall use commercially reasonable efforts to provide Customer the Services in accordance with reasonable and standard industry practices. Except as otherwise provided in a Shaped Agreement or these Commercial Terms, the Company does not make any representations, warranties or conditions about the quality, accuracy, reliability, completeness, currency or timeliness of the Services, and the Company does not assume any responsibility for any errors, omissions or interruptions in the Services.

(b)        As part of the registration process, Shaped shall provide or request the Customer to provide certain login credentials and information, including an administrative username and password, for Customer’s account on the Platform. Shaped reserves the right to modify or request changes in credentials and passwords, and to change the login process, in its discretion.

(c)        Subject to the terms hereof, Shaped shall provide Customer with reasonable technical support services in accordance with Shaped’s standard support practices.

3.          Restrictions, Responsibilities and Rights.

(a)        Customer shall not, directly or indirectly, (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or Services (collectively, the “Software”), (b) use or copy any software, documentation or other data related to the Platform or Services other than in connection with the use thereof as contemplated in these Commercial Terms, (c) use the Services or any Software for time sharing or service bureau purposes or otherwise sublicense, resell, rent, lease, transfer, assign, time share, broadcast, republish, modify, distribute or otherwise commercially exploit or make the Platform available to any third party; (d) use the Platform or Software in any unlawful manner, (e) modify, adapt or hack the Platform to, or otherwise attempt to gain unauthorized access to the Platform or its related systems or networks, or (f) remove any proprietary notices, attributions (whether of Shaped, third party platform providers, users or otherwise) or labels from the Platform or Software.

(b)        As between the parties, Shaped retains all rights, title and interest in and to Platform and the Software. With respect to any Software that is distributed or provided to Customer for use on Customer’s premises or devices, Shaped hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services and in accordance with these Commercial Terms.

(c)        Customer represents, covenants, and warrants that Customer shall use the Services only in accordance with these Commercial Terms and the Shaped Agreements and in compliance with Shaped’s standard published policies then in effect and all applicable laws and regulations. Although Shaped has no obligation to monitor Customer’s use of the Services, Shaped may do so and may prohibit any use of the Platform or Services it believes may be (or alleged to be) in violation of the foregoing.

(d)        Customer shall promptly notify Shaped if Customer learns of a security breach related to the Platform.

(e)        For purposes of these Commercial Terms, “Confidential Information” means any information, software and know-how disclosed or made available by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) hereunder. The Receiving Party shall: (i) not use the Disclosing Party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any party, other than its employees and consultants who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by law to make any disclosure of such Confidential Information, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Information shall not be deemed Confidential Information hereunder if such information: (1) is known or becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party prior to receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (2) becomes publicly known, except through a breach hereof by the Receiving Party; or (3) is independently developed by the Receiving Party without any use of the Disclosing Party’s Confidential Information.

4.          Fees.

(a)        The Customer shall pay Shaped the then applicable fees for the Services described in the Order Form or other form of fee notice, such as an email, webpage or click-through form, describing such fees (“Order Form”) in accordance with the terms therein (the “Fees”). Shaped reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the “Initial Service Term” (as defined in Section 5(a)) or then current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If the Customer believes that Shaped has billed the Customer incorrectly, the Customer must contact Shaped no later than 30 days after the closing date on the billing statement in which the error or problem appeared, in order to receive, if otherwise applicable, an adjustment or credit. All inquiries regarding Fees and billing should be directed to Shaped customer support department at support@shaped.ai.

(b)        Shaped may choose to bill Fees through an invoice, in which case, full payment for invoices issued in any given month must be received by Shaped no later than 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Shaped’s net income.

5.          Term and Termination.

(a)        Subject to earlier termination as provided herein, these Commercial Terms shall apply for the initial term of service specified in the Order Form (the “Initial Service Term”) which shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current Term. If no term of service is specified in the Order Form then the Initial Service Term shall be 12 months.

(b)        In addition to any other remedies it may have, either party may terminate a “Subscription” (as defined in the Terms of Service) upon 30 days written notice (or without notice in the case of nonpayment) if the other party materially breaches any of the Shaped Agreements or these Commercial Terms. The Customer shall pay all Fees in full up to and including the last day access to the Platform or the Services are available. Upon any termination, Shaped shall make data or content provided by the Customer to Shaped, or by Shaped to the Customer, in connection with the Services available to Customer for electronic retrieval for a period of 30 days. Thereafter Shaped may, but is not obligated to, delete stored Customer Data. All sections of these Commercial Terms which by their nature should survive termination shall survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.          Disclaimers. Shaped shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Shaped or by third-party providers, or because of other causes beyond Shaped’s reasonable control, but Shaped shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. OTHER THAN AS SET FORTH ABOVE OR IN THESE COMMERCIAL TERMS, THE PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. SHAPED DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE PLATFORM, WHETHER EXPRESS, IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.

7.          Limited Indemnity. Shaped shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Shaped is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Shaped shall not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Shaped, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Shaped, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with these Commercial Terms. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Shaped to be infringing, Shaped may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate these Commercial Terms and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8.          Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE TERMS OF SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SERVICES WILL NOT EXCEED THE AMOUNT ACTUALLY PAID AND/OR PAYABLE BY YOU FOR THE APPLICABLE PORTION OF THE SERVICES AT ISSUE WITHIN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. OTHER THAN IN THE EVENT OF A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. IN ALL CASES, THE COMPANY, AND ITS SUPPLIERS AND DISTRIBUTORS, INCLUDING EXTERNAL SERVICES, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

9.          Miscellaneous. For all purposes under these Commercial Terms each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. These Commercial Terms shall be governed by the laws of the state of New York without regard to the principles of conflicts of law. These laws shall apply no matter where in the world the Customer resides or is domiciled, but if the Customer resides or is domiciled outside of the United States, the Customer may be entitled to the protection of consumer protection provisions of the Customer’s local jurisdiction. Neither party shall have the right to assign these Commercial Terms, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. In the event that any provision of these Commercial Terms shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated so that these Commercial Terms shall otherwise remain in full force and effect and enforceable. The failure of either party to exercise or enforce any right or provision of these Commercial Terms shall not be a waiver of that right.

10.       Use of Customer’s Name and Data for Marketing. The Customer agrees to allow Shaped to include Customer’s name and logo, and certain data demonstrating Shaped’s Services for the Customer (e.g., estimated uplift results), in descriptions of Shaped’s customers and Services in Shaped’s case studies, marketing, promotional and other written materials, including on Shaped’s website. If Customer does not want to be mentioned in such materials and/or on Shaped’s website, the Customer should write to their account contact at Shaped in order to opt out.

11.       Data Protection. If the parties have entered into a separate Data Processing Addendum, the parties shall comply with their respective obligations set forth therein. In the case of any inconsistency or conflict between any of the provisions of these Commercial Terms and a Data Processing Addendum, the provisions of the Data Processing Addendum shall prevail in preference to these Commercial Terms.

12.       About These Commercial Terms.

(a)        We may modify these Commercial Terms from time to time. You should look at these Commercial Terms regularly. We’ll post notice of modifications to these Commercial Terms on this page. We may also post notice of modified Commercial Terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than five business days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified Commercial Terms, you should discontinue your use of that Service as allowed under your Shaped Agreements.

(b)        These Commercial Terms control the relationship between the Company and you. They do not create any third-party beneficiary rights.

(c)        If you do not comply with these Commercial Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).

(d)        If it turns out that a particular term in these Commercial Terms is not enforceable, this will not affect any other terms.

13.       Contact Us. If you have any questions or suggestions about these Commercial Terms, do not hesitate to contact us at support@shaped.ai.