Last Updated: November 28, 2018
Thank you for using Shogun! To be eligible to register for a Shogun account and use Shogun Software (as defined below), you must review and accept these Shogun Terms of Service (this "Agreement" or these "Terms" ) by clicking on the "Get" or "Signup" button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE SHOGUN SOFTWARE, YOU AGREE TO THESE TERMS AND CONDITIONS WITH SHOGUN LABS, INC. ("SHOGUN"). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE "I ACCEPT" BUTTON AND YOU SHOULD NOT USE THE SHOGUN SOFTWARE.
In this Agreement, "you," "your" and "Customer" will refer to you. If you are registering for a Shogun account or using the Shogun Software on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Shogun that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms "you", "your" and "Customer" will refer to that entity or organization).
1.1 The following terms, when used in this Agreement will have the following meanings:
"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 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) that uses an e-commerce platform that has integrated the Shogun Software, for which Customer is permitted to use the Shogun Software as set forth in Customer's Shogun account.
"Shogun Software" means the cloud-based page building software tools made generally available by Shogun for use by its customers to build and serve their e-commerce websites.
2.1 These Terms. Shogun may revise these Terms from time to time. If Shogun does revise these Terms, the revised Terms will supersede prior versions, effective at the beginning of your next subscription renewal. Shogun will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Shogun has on file. For other revisions, Shogun will update the effective date of these Terms at the top of the page. Shogun encourages you to check the effective date of these Terms whenever you visit Shogun's website or account portal. Your continued access or use of the Shogun Software constitutes your acceptance of any revisions, effective at the beginning of your next subscription renewal. If you don't agree to the revisions, you should cancel your subscription to the Shogun Software. Subject to the foregoing, 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.
2.2 Shogun Software. You acknowledge that Shogun may change or deprecate any feature of the Shogun Software from time to time, and that it is your responsibility to ensure that calls or requests you make to the Shogun Software are compatible with then-current version of the Shogun Software. Although Shogun endeavors to avoid changes to the Shogun Software that are not backwards compatible, if any such changes become necessary Shogun will endeavor to notify you at least thirty (30) days prior to Shogun's implementation of any such incompatible changes to the Shogun Software of which it becomes aware.
3.1 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/aup) (the "AUP"), Shogun will use commercially reasonable efforts to make the Shogun Software available to Customer pursuant to this Agreement based on the pricing plan for the Shogun Software selected by Customer. 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.
3.2 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.
3.3 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.
3.4 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.
3.5 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.
3.6 Data Processing Addendum and Privacy Shield. To the extent that Shogun processes any Personal Data (as defined in the DPA referenced below) provided by Customer's customers on Customer's behalf in the provision of the Shogun Software, the terms of the data processing addendum at https://www.getshogun.com/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. For the purposes of the DPA (including the Standard Contractual Clauses attached to the DPA), Customer is the data controller and data exporter, and Customer's entering into this Agreement shall be treated as signing of the DPA (including the Standard Contractual Clauses and their Appendices). Shogun further represents to Customer that it has certified its adherence to the EU-US or Swiss-US Privacy Shield Framework, as administered by the US Department of Commerce and detailed at https://www.privacyshield.gov.
4.1 Fees. Customer will pay Shogun the fees set forth in Shogun's standard pricing plan, as may be updated from time to time, or any other order forms for the Shogun Software ordered by you and accepted in writing by Shogun. Shogun may change the terms of its pricing plan at any time by updated the pricing plan webpages on its website located at https://getshogun.com/ (the "Site"). Customer is responsible for checking the Site for any updates to the applicable pricing plan. All changes to Shogun's pricing plan will be effective upon Customer's next subscription renewal. All fees are due and payable at the beginning of your subscription term and each renewal thereof. 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 mutually agreed upon in writing, (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.
4.2 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 business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary 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 Proprietary 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.
6.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
6.2 Termination and Suspension. You may terminate your account at any time by deleting the Shogun Software app in the applicable e-commerce platform you are using that has integrated the Shogun Software. Shogun may terminate or suspend your account in the event you commit any breach of any provision of these Terms (including the AUP), and Shogun may terminate your account effective at the end of your then-current subscription upon written notice to you of non-renewal of your subscription. Shogun may also terminate or suspend your account immediately for cause if: (a) there is reason to believe the traffic created from your use of the Shogun Software or your use of the Shogun Software is fraudulent or negatively impacting the operating capability of Shogun Software; (b) Shogun determines, in its sole discretion, that providing the Shogun Software is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Shogun Software; or (c) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Shogun suspends your account, Shogun will make a reasonable attempt to notify you. Note that no refund will be provided in the event of any suspension or termination of your account.
6.3 Survival. Upon termination of this Agreement or your account, 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.
7.1 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.
7.2 DISCLAIMER. THE SHOGUN SOFTWARE AND ANY BETA SERVICES (AS DEFINED BELOW) ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. SHOGUN HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SHOGUN SOFTWARE AND BETA SERVICES. WITHOUT LIMITING THE FOREGOING, SHOGUN DOES NOT WARRANT THAT THE SHOGUN SOFTWARE OR BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
7.3 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, AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS.
Customer will defend, indemnify and hold Shogun and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to the Customer Content, Customer Websites or its breach of these Terms ("Claim"). Shogun and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Customer's expense. Shogun reserves the right, at Customer's expense, to retain separate counsel for themselves in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim that is subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys' fees and any settlement amounts or damages awarded against Shogun or its affiliate in connection with any Claim. Customer will also be liable to Shogun for any costs and attorneys' fees Shogun incurs to successfully establish or enforce Shogun's right to indemnification under this Section.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SHOGUN BE LIABLE TO YOU FOR ANY (I) 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 SHOGUN HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
10.1 Export Controls. The Shogun Software may be subject to applicable export control laws and economic sanctions regulations. In receiving the Shogun Software, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Shogun Software, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Shogun Software. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any aspect of the Shogun Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce's List of Denied Persons, Entity, or Unverified List, and the Treasury Department's List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Shogun Software if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2 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.
10.3 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.
10.4 Waiver. 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.
10.5 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.
10.6 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.
10.7 Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, 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, and 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. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 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. Notices to Customer must be sent to the email or other address set forth in in your account information. Notices to Shogun must be sent to the following address: Shogun Labs, Inc., 340 S Lemon Ave #1085, Walnut, CA 91789, Attn: Legal.
10.9 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.
10.10 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.
10.11 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.
10.12 Interpretation. For purposes hereof, "including" means "including without limitation".
11.1 First Try Customer Support. If you have any issues with the Shogun Software or Shogun, you must try to resolve the issue first through Shogun customer support
11.3 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Shogun and its affiliates on the other hand, agree that the parties will go to court to resolve disputes relating to your, your affiliate's, Shogun's or Shogun's affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) or your violation of the AUP. Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4 Details of Arbitration Procedure.
a. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association ("AAA"), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA's rules and procedures on their website https://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA's Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
b. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
c. The arbitrator's award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
d. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
11.5 Class Action Waiver. Both you and your affiliates, on one hand, and Shogun and its affiliates on the other hand, agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Shogun and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Shogun customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.