Master Subscription Terms and Conditions

BY ACCEPTING THIS AGREEMENT OR USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THESE TERMS AND CONDITIONS.  IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE AS AN INDIVIDUAL, THE TERM "CUSTOMER" REFERS TO YOU.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

Customer and Shelf Engine (“Shelf Engine”) hereby agree as follows:

Scope. These Terms and Conditions shall apply to Customer's use of Shelf Engine's subscription services, packaged professional services, content, products and offline components ("Services") ordered by Customer under a free trial or ordering document (including any online form) specifying the Services to be provided hereunder ("Order"). These Terms and Conditions and all Orders (collectively referred to as this "Agreement") represent the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Shelf Engine ordering document, and no terms included in any such purchase order or other non-Shelf Engine ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control.  All capitalized terms not defined herein shall have the meanings attributed in the Order.

Free Trial.  If Customer registers for a free trial, Shelf Engine will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Services, or (b) the start date of any purchased subscriptions ordered for such Services.  Additional trial terms and conditions may appear on the trial registration web page.  Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES.

Right to Use the Services.  During the Subscription Term set forth in an Order, Shelf Engine grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services subject to the terms of this Agreement.  Each Order defines specific usage rights or locations for which the Services may be used ("Usage Rights"), and Customer shall at all times ensure that its use does not exceed its Usage Rights.

Usage Restrictions and Representations.

Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Shelf Engine; (iv) remove any proprietary notices or labels from the Services or Software; or (v) otherwise use the Services or Software outside of the scope of the rights granted in Section 3. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service or otherwise outside of the scope of the express rights granted herein.

Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Shelf Engine's provision of the Services. Customer shall be responsible for maintaining the security of its equipment and account access passwords. Customer represents and warrants that Customer will use the Services only in compliance with applicable laws and regulations.  Customer shall be liable for all acts and omissions of its Users.  

Shelf Engine may immediately suspend Customer's password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Shelf Engine has provided Customer with notice of such failure; or (ii) Customer violates Section 3, 4, or 10 of these Terms and Conditions. Any suspension by Shelf Engine of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.

Certain “free” or “open source” based software (the “FOSS Software”) may be provided by Shelf Engine hereunder, but is not considered part of the Software hereunder.  A list of the FOSS Software will be provided to Customer upon Customer’s written request.

Ownership.

Shelf Engine will retain ownership of all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Shelf Engine, and Customer hereby makes all assignments necessary to accomplish the foregoing ownership.  Any rights not expressly granted herein are reserved by Shelf Engine.

Customer will retain ownership of any data, information or material originated by Customer that Customer submits or provides in the course of using the Services ("Customer Data"). Shelf Engine has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Shelf Engine Services.  Except to the extent Customer or any Users make any Customer Data accessible to other users or the public through the Services, Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 10 below.  Customer represents and warrants that it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used or shared, as applicable, by Shelf Engine as part of the Services.

Billing and Payment.

Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 8.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Shelf Engine's income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.

All amounts invoiced hereunder are due and payable as invoiced at the end of each month and as further specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute 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 reasonable expenses of collection.

If at any time Shelf Engine determines that Customer is exceeding the Usage Rights, Shelf Engine shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Shelf Engine's notice, Shelf Engine reserves the right to charge and Customer agrees to pay Shelf Engine's then-current usage fees for such overage.

Term and Termination.

This Agreement shall commence as of the date set forth in the first Order or the beginning of a free trial, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the end of the free trial if no purchased subscription is ordered).  All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions, confidentiality obligations, warranty disclaimers, and limitations of liability.

Either party may terminate this Agreement or any Order upon 30 days prior written notice to the other party.  Upon termination, all fees set forth on outstanding Orders are immediately due and payable.

Upon any termination or expiration of an Order, Customer's right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer's request if received within 30 days of termination of the Order, Shelf Engine will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Shelf Engine's possession. Customer acknowledges and agrees that Shelf Engine has no obligation to retain Customer Data and that Shelf Engine will have the right to irretrievably delete and destroy Customer Data after 30 days following the termination of this Agreement.

Representations, Disclaimer of Warranties.

Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. Shelf Engine warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Shelf Engine of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.

For breach of the express warranty set forth above, Customer's exclusive remedy shall be the re-performance of the deficient Services. If Shelf Engine cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Shelf Engine for such deficient Services, and such refund shall be Shelf Engine's entire liability.

The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Shelf Engine's reasonable control, but Shelf Engine shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, SHELF ENGINE AND ITS THIRD PARTY DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND Shelf Engine DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Limitation of Liability. SHELF ENGINE SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SHELF ENGINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER IN THE PRECEDING 6 MONTHS.

Confidential Information. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except to perform its obligations hereunder or as permitted in Section 11 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party.  If the Receiving Party is required by law to make any disclosure of such Confidential Information, it may do so to the extent of such requirement, provided that it first gives written notice to the Disclosing Party thereof (if legally permitted).  

Statistical Information.  Notwithstanding anything else in this Agreement or otherwise, Shelf Engine may monitor Customer's use of the Services and freely use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such publicly available information does not identify Customer or its Confidential Information. Shelf Engine retains all intellectual property rights in such information.

Notices. Shelf Engine may give notice applicable to Shelf Engine's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in Shelf Engine's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in Shelf Engine's account information. If Customer has a dispute with Shelf Engine, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Shelf Engine at 1221 E Pike St, Suite 300, Seattle WA 98122, to the attention of Stefan Kalb.

General provisions.

Any action, Claim, or dispute related to this Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

This Agreement (including all Order(s)) represents the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. Customer acknowledges that this Agreement is a contract between Customer and Shelf Engine, even though it may be electronic and not physically signed by Customer and Shelf Engine, and it governs Customer’s use of the Service and takes the place of any prior agreements between Customer and Shelf Engine.  This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

No joint venture, partnership, employment, or agency relationship exists between Shelf Engine and Customer as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning party related to this Agreement. Any purported assignment in violation of this Section shall be void.