THIS ENTERPRISE CUSTOMER AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF SHOGUN SOFTWARE AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE SOFTWARE AND SERVICES.
This Agreement was last updated on June 22, 2020. It is effective between Customer and Shogun Labs, Inc. (“Shogun”) as of the date of Customer’s accepting this Agreement.
Shogun has developed a cloud-based digital experience platform for eCommerce for use by its customers to build and serve their e-commerce websites (the “Shogun Software”), and Customer desires to use the Shogun Software to build and make available the Customer Websites (as defined below).
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition,
“Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Agreement” means this Enterprise Customer Agreement.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
“Customer Content” means any information, data, graphics, content and other materials provided or made available to Shogun by Customer (or, if Customer is an agency, Customer’s clients for which Customer is an agency of record (“Agency Clients”)) for the purpose of building a Customer Website.
“Customer Website” means a website branded with Customer’s trademarks (or, if Customer is an agency, those of its Agency Clients) and operated by or on behalf of Customer (or, if Customer is such an agency, its Agency Clients), for which Customer is permitted to use the Shogun Software, as set forth in the applicable Order Form.
“Order Form” means an order form or other similar document that sets forth the specific Shogun Software, Customer Website(s) and pricing therefor, and that references this Agreement and is mutually executed by the parties.
2.1 Implementation. Upon request, Shogun will perform the implementation services set forth in an Order Form or in a separate Statement of Work to configure and/or integrate the Services. The provision of implementation services by Shogun is dependent on Client providing reasonable access to relevant resources and providing timely decisions and input in connection with those implementation services.
2.2 Provision of Shogun Software. Subject to the terms and conditions of this Agreement and the Shogun Acceptable Use Policy (available at https://www.getshogun.com/policy/aup) (the "AUP"), Shogun will make the Shogun Software available to Customer pursuant to this Agreement and the applicable Order Form. Customer may permit its third party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the Shogun Software solely in connection with services provided by such third party contractors to Customer. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Agency Clients, and Customer will only use the Shogun Software on behalf of such Agency Clients that have authorized Customer to use the Shogun Software on their behalf within the scope of Customer’s other bona fide agency responsibilities for such Agency Client.
2.3 Customer Responsibilities. Customer acknowledges that Shogun’s performance of the Shogun Software is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer APIs (if applicable), personnel and Customer Content), and Customer will provide all such cooperation in a diligent and timely manner. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to Shogun a limited, non-exclusive, worldwide license to use, reproduce, create derivative works of, distribute, publicly perform and display Customer Content to provide the Shogun Software to Customer.
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Shogun and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
2.5 Ownership Rights. As between the parties, Shogun owns and will retain all right, title and interest in and to the Shogun Software and any improvements thereto, and Customer (or, if Customer is an agency, its Agency Client(s)) owns and will retain all right, title and interest in and to the Customer Content and Customer Websites (excluding any Shogun Software embedded therein). No rights are granted other than as expressly set forth herein.
2.6 Feedback. Customer may from time to time provide Shogun suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Shogun Software. Shogun will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
2.7 Shogun Platform Improvements and Marketing. Notwithstanding anything herein, Shogun shall have the right to collect and analyze data and other information relating to the use and performance of the Shogun Software and related systems and technologies and Shogun will be free to (i) use such information and data to develop, improve and provide Shogun’s offerings, and (ii) use and disclose such data in aggregate or other anonymous and de-identified form for marketing purposes and otherwise in connection with its business.
2.8 Data Security.
(a) Shogun will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Confidential Information; (ii) protect against threats or hazards to the security or integrity of Customer Confidential Information; and (iii) prevent unauthorized access to Customer Confidential Information. Shogun’s security safeguards include measures for preventing access, use, modification or disclosure of Customer Confidential Information by Shogun personnel except (a) to provide the Shogun Software and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement. Shogun will not materially diminish the protections provided in this Section during the term of this Agreement.
(b) To the extent that Shogun processes any Personal Data (as defined in the DPA referenced below) on Customer’s behalf in the operation of the Shogun Software, the terms of the Data Protection Addendum at https://www.getshogun.com/policy/dpa (“DPA”) as may be updated by Shogun if required by applicable law, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
3.1 Fees. Customer will pay Shogun the fees set forth in the Order Forms, which will include implementation fees and subscription fees for the Shogun Software. Except as otherwise set forth in the applicable Order Form, all fees not disputed in good faith are due within thirty (30) days after receipt of an invoice therefor. If Shogun has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Shogun. Further, Shogun may restrict or suspend Customer’s access to the Shogun Software if payment is not made within five (5) business days after Customer’s receipt of notice (including by email) that payment is past due. Except as otherwise specified herein or in any applicable Order Form (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable, except as expressly set forth herein. Customer is solely responsible for collecting and paying any fees associated with transactions between Customer’s end users and Customer.
3.2 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Shogun’s net income.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information hereunder. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. In addition, Customer will not (nor will it permit any third party to) (1) reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Shogun Software or modify or create derivative works based on the Shogun Software; (2) use the Shogun Software to build a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Shogun Software; or (3) use the Shogun Software in an unlawful manner, in violation of the AUP or otherwise outside the scope expressly permitted hereunder.
5.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. Either party may terminate this Agreement upon written notice to the other party if there are no Order Forms then outstanding. Except as set forth in an Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
5.2 Termination. Each party may terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. In addition, Shogun may terminate an Order Form if its agreement with the applicable e-commerce platform(s) related to such Order Form terminates, in which case Shogun will refund to Customer a pro rata portion of any prepaid amounts corresponding to the terminated portion of the applicable subscription term for the Shogun Software.
5.3 Survival. Upon termination of this Agreement Customer will discontinue any further use of the Shogun Software and all rights and obligations will immediately terminate, except that any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to payment, proprietary rights, confidentiality, disclaimers, indemnification, limitations of liability and termination, and the general provisions below.
6.1 Shogun. Shogun warrants that it will, consistent with prevailing industry standards, maintain the Shogun Software in a manner which minimizes errors and interruptions in the Shogun Software and provide the Shogun Software in a professional and workmanlike manner.
6.2 Customer. Customer warrants that it has the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Content and Customer Websites (excluding the Shogun Software embedded therein) in connection with the Shogun Software as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from each of its Agency Clients to use the Shogun Software and Customer Content related to such Agency Client on such Agency Client’s behalf.
6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SHOGUN SOFTWARE ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. SHOGUN DOES NOT WARRANT THAT THE SHOGUN SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT PROVISION OF THE SHOGUN SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, INCLUDING ANY ERRORS OR OMISSIONS IN THE RESULTS OBTAINED THROUGH USE OF THE SHOGUN SOFTWARE.
6.4 BETA SERVICES. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH SHOGUN WHERE CUSTOMER GETS TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY SHOGUN. THE BETA SERVICES ARE NOT GENERALLY AVAILABLE, MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS, AND ARE PROVIDED “AS IS”. SHOGUN DOES NOT PROVIDE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR SHOGUN MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA SERVICES AT ANY TIME.
7.1 Indemnity by Shogun. Shogun will defend Customer and its Affiliates and their respective officers, directors, employees and agents against any claim, demand, suit, or proceeding (“Claim”) made or brought against any of them by a third party alleging that the Shogun Software as provided by Shogun (excluding any Customer Content) infringes any third party intellectual property right and will indemnify them against any damages finally awarded against (or any settlement approved by Shogun) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Shogun of such Claim, (b) Shogun will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Shogun may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Shogun in connection therewith. Notwithstanding the foregoing, Shogun will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Shogun Software or any breach of this Agreement by Customer, (ii) any combination of the Shogun Software with other products, equipment, software, uses or data not supplied, authorized or recommended by Shogun, (iii) any modification of the Shogun Software by any person other than Shogun or its authorized agents or contractors or (iv) any activity after Shogun has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Shogun Software (collectively, “Excluded Claims”). If Shogun reasonably believes that all or any portion of the Shogun Software, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Shogun will procure, at Shogun’s expense, for Customer the right to continue using the Shogun Software in accordance with the terms hereof, replace or modify the allegedly infringing Shogun Tool to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Shogun may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer a pro rata portion of any prepaid amounts corresponding to the terminated portion of the applicable subscription term for the Shogun Software.
7.2 Indemnification by Customer. Customer will defend Shogun and its Affiliates and their respective officers, directors, employees and agents against any Claim made or brought against any of them by a third party arising out of the Excluded Claims, Customer Content or the Customer Websites (excluding the Shogun Software embedded therein), and Customer will indemnify them against any damages finally awarded against (or any settlement approved by Customer) Shogun in connection with any such Claim; provided that (a) Shogun will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Shogun’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Shogun of all liability) and (c) Shogun reasonably cooperates with Customer in connection therewith.
EXCEPT FOR A BREACH OF SECTION 4 OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM.
9.1 Insurance. Shogun shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Commercial General Liability, on an occurrence basis, with a minimum combined single limit of $1,000,000 per occurrence and $2,000,000 in the aggregate, naming Customer as an additional insured; and (b) Automobile Liability, with coverage limits of not less than $1,000,000 per claim.
9.2 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Shogun Software.
9.3 Publicity. Shogun may use Customer’s name and logo on Shogun’s website and marketing materials to identify Customer’s relationship with Shogun, and Shogun may publicize that Customer is a customer of Shogun and utilizes the Shogun Software.
9.4 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.5 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.8 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of San Francisco, California, and the parties hereby consent to the personal jurisdiction of these courts.
9.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery, and must be sent to the address set forth in the signature page below (or such other address to which a party may change by written notice in accordance with this Section)
9.10 Entire Agreement. This Agreement comprises the entire agreement between Customer and Shogun with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Shogun, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There shall be no force or effect to any different terms of any pre-printed purchase order or similar forms of Customer, even if signed by the parties after the date hereof.
9.11 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.12 Government Terms. Shogun provides the Shogun Software, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Shogun Software, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Shogun Software were developed fully at private expense.
9.13 Interpretation. For purposes hereof, “including” means “including without limitation”.