1. DEFINITIONS● "Customer" means the company registered to use the Service and/or entering into this GTC, and which authorizes its User(s) to use the Services. Each Customer is an individual legal entity.
● “Confidential Information” means information of the other Party that is marked as confidential or that the receiving party should reasonably understand is confidential from the circumstances of disclosure or the nature of the information.
● “Intellectual Property Rights” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
● “Personal Data” means any information of a nature where the information may be connected to a person, such as, but not limited to, personal name, social security number, date of birth, phone number, address, phone number and e-mail address.
● “Platform” means the Shapemaker cloud-based platform.
● “Service Term” means the period in which the Customer is granted the right to use the Service. The Service may be offered on a subscription basis or on a per structural analysis basis.
● “Service” or “Services” means the online services made available (as may be changed or updated from time to time by Shapemaker) via the Platform or via web service application programming interfaces (API). The Service also includes other tasks and other Value-added service delivered by Shapemaker under an applicable Agreement.
● “Third-party application” refers to software programs which are connected using the Shapemaker Service.
● “User” means the person authorized byCustomer to use the Services. The Customer is responsible for the User’s use of the Services, and its acts and omissions, as if they were Customer’s own.
● “Value-added services” means any professional consulting and advice provided by Shapemaker as set out in an agreement and billed to Customer on a time and material basis.
● "Website" means the Internet site at the domain www.shapemaker.io or any other site operated by Shapemaker.
2. USE OF SERVICEShapemaker grants Customer the right to access and use the Service, during the Service Term, via the Platform and according to Customer’s subscription level. This right is non-exclusive, non-transferable, and limited by and subject to this GTC.
3. CUSTOMER’S OBLIGATIONS ANDACKNOWLEDGEMENTS1.1 Payment Obligations andSubscription
Customer will be invoiced by Shapemaker for the relevant Service Term for the chosen period. Invoicing commences from the date Customer purchased a subscription plan or an analysis. When purchasing a subscription plan, Shapemaker will automatically renew the subscription and invoice again at the start of each new subscription period for the relevant amount for continued access to the Service until the subscription is terminated according to the terms of the subscription plan.
All Shapemaker payment receipts and tax invoices will be sent to Customer, or to a Billing Contact whose details are provided by Customer, by email. If Customer upgrades to a different Service level, Customer may be charged the price for the new Service level from the date the new Service level comes into force. If Customer downgrades to a different Service level, Customer will be charged the price for the new Service from Customer’s next payment period onwards.
Customer is responsible that billing details are kept up to date. Any failed payments may result in a disruption of the Service. Customer may be charged for any bank or debt collection fees incurred by Shapemaker for failed payments. Customer is responsible for payment of all taxes and duties in addition to the Subscription.
1.2 General obligations
If not otherwise agreed, Customer must only use the Service and Platform for Customer’s own lawful business purposes, during the Service Term, and in accordance with this GTC.
The Customer may not assign any rights or delegate any obligations created by this Agreement to a third-party without the prior written consent of Shapemaker. Any assignment in violation of thisAgreement is void. For the avoidance of doubt, Customer may not use the Service and Platform on behalf of third-part entities unless authorized to do so by Shapemaker.
All such authorized third-party entities shall comply with and accept all terms of this GTC. Customer will be responsible for such entities’ use of the Service, as if it was Customer’s own.Where the Customer is authorized to use the Service and Platform on behalf of a third-party entity, the Customer must notify Shapemaker in order for such entity to be registered with Shapemaker and will be invoiced the applicable subscription as if they were a separate Customer in their own right.
1.3 Access conditions
When accessing and using the Service, Customer must:
(A) not attempt to undermine the security or integrity of Shapemaker’s computing systems or networks or, where the Service is hosted by a third-party, that third-party's computing systems and networks;
(B) not use, or misuse, the Service in any way which may impair the functionality of theService or Platform, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Platform;
(C) not attempt to gain un authorized access to any materials other than those to which Customer has been given express permission to access or to the computer system on which the Service is hosted;
(D) not transmit, or input into the Platform, any files that may damage any other person's computing devices or software or material or Data in violation of any law;
(E) not attempt to modify, copy, adapt, reproduce, disassemble, decompile, or reverse engineer any computer programs used to deliver the Service or to operate the Platform
1.4 Access conditions
Use of the Service may be subject to limitations, including but not limited to, monthly data transaction volumes and the number of database or API calls Customer is permitted to make against Shapemaker’s application programming interface. Shapemaker follows a 'fair use' policy. If Customer’s volume of transactions, API or database calls is deemed excessive, at the sole discretion of Shapemaker, Shapemaker will contactCustomer and attempt to find a mutually acceptable solution.
1.5 Customer’s warranties
The User accessing the Service, and which registers the Customer for the Service warrants that he/she is authorized to agree to this GTC on behalf of the Customer. Customer warrants that it has the legal grounds for processing the Personal Information and Data that Customer transfers to the Platform, whether that information and Data is Customer’s own or that of a third party, and that Intellectual Property Rights of third parties are not violated.
1.6 Responsibility for calculation setc.
The Customer is solely responsible for ensuring that calculations, analyzes and solution proposals made by using thePlatform are correct and/or can be used in practice. The Customer acknowledges that the Service may contain errors, as stated in clause 7.2.
4. CONFIDENTIALITY
Except where otherwise provided in theAgreement, each Party (i) shall keep in confidence all ConfidentialInformation; (ii) may not disclose the other Party’s Confidential Information to any third parties and (iii) may not use or utilize such Confidential Information for any other purposes than for the fulfilment of the purpose of the Agreement.
A Party may disclose ConfidentialInformation to its affiliates on the condition that the Party shall restrict access to Confidential Information to those of its affiliates’ officers, directors and employees who have a legitimate need-to-know to carry out the purpose of the Agreement and who are obligated to protect such ConfidentialInformation pursuant to terms and conditions no less protective of the other Party than those contained in the Agreement and the disclosing Party shall be liable for any failure of its affiliates to abide by the provisions of theAgreement as if such failure was the act or omission of such Party.
This confidentiality obligation shall not apply to information: (i) which at the time of disclosure is or later becomes generally available or otherwise public through no breach of the Party receiving the information; (ii) which was in the possession of the receivingParty without a confidentiality or non-use obligation prior to receipt of the same from the other Party; (iii) which the receiving Party receives from a third party who did not breach an obligation of confidentiality when disclosing the information; (iv) which the receiving Party can prove the receiving Party has developed independently without using the Confidential Information of the other Party; or (v) which the receiving Party is obliged to disclose pursuant to an order by an authority or court or otherwise in accordance with law. If Customer does disclose Confidential Information for any reason, it must notify Shapemaker in writing within ten (10) calendar days.
5. FORCE MAJEUREExcept with respect to payment obligations, which will not be subject to this Section, a Party shall not be liable for the delays, defects or damages that are caused by factors due to an impediment beyond his control, which he cannot reasonably be deemed to have taken into account at the time of the conclusion of that agreement, and the consequences of which he could not reasonably have avoided or overcome.
Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, failures in Internet and other public networks or data traffic, security attacks, strikes and other labour disputes or acts of government or authorities. A labour dispute shall be considered a force majeure event also when the Party concerned is the target or a party to such an action.The force majeure events suffered by subcontractors shall also be deemed as force majeure events.
6. INTELLECTUAL PROPERTYTitle to, and all Intellectual PropertyRights in the Service, the Platform and any documentation relating to such remain the exclusive property of Shapemaker (or its licensors).
It is Customer’s responsibility to maintain backup copies of all Data and/or Personal Data inputted into the Service orPlatform. Shapemaker adheres to its best practice policies and procedures to prevent data loss but shall have no liability if there is any loss of Data.
Shapemaker makes no representation whatsoever about any third-party applications or websites which Customer may access from the Platform and Service, and Customer does such correspondence on its own behalf.
7. SHAPEMAKER’S LIMITED WARRANTY7.1 Limited warranty
Shapemaker and its third-party suppliers make no warranties of any kind, express or implied, statutory or otherwise, and expressly disclaim any warranties of merchantability, fitness for a particular purpose, non infringement, or otherwise arising from the course of performance or usage of trade. Neither Shapemaker nor its third-party suppliers warrant that the services, including the components thereof, provided pursuant to this agreement will be uninterrupted or error free or that certain results may be obtained from the use thereof.
7.2 Quality of Services
Customer accepts that Shapemaker is providing software-based Services that may include errors or bugs, as is the case with any software. Upon the Customer notifying Shapemaker of any errors for which Shapemaker accepts responsibility, Shapemaker will use reasonable commercial efforts to rectify said errors as soon as practicably possible.
8. LIMITATION OF LIABILITYNeither Party shall be liable to the otherParty for any indirect or consequential damages including without limitation, interruption of business, loss of profits and lost revenue arising out of thisGTC (including without limitation the Services, the use of Services or the inability to use the Services).
The Customer’s maximum entitledcompensation is limited to EUR 5,000.
The said limitations shall not apply in thecase of gross negligence or willful misconduct on the part of the breachingParty or anyone for whom it is responsible.
9. TERMINATION FOR BREACHIf any of the Parties
(A) breaches any of the terms in this GTC (including, without limitation, by non-payment of any subscription or analysis) and do not remedy the breach within 14 days after receiving notice of the breach (if the breach is capable of being remedied); or
(B) breaches any of the terms in this GTC and the breach is not capable of being remedied(which includes, without limitation, any breach of clause 3.3 or any payment of subscription or analysis that are more than 30 days overdue); or
(C) a Party becomes insolvent or a Party’s business goes into liquidation or has a receiver or manager appointed of any of its assets or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction
then the other Party may take any or all of the following actions, at its sole discretion:
(1) Terminate this GTC with immediate effect; or
(2) If breach by Customer: Suspend for any definite or indefinite period of time, Customer’s use of the Services and the Platform.
For the avoidance of doubt, if payment for subscription or analysis due in relation to any of Customer’s accounts is not made in full by the relevant due date, Shapemaker may suspend or terminateCustomer’s use of the Service or the authority for all or any of Customer’s organizations to use the Service.
10. ACCRUED RIGHTSTermination of this GTC is with out prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this GTC the Customer will remain liable for any accrued charges and amounts which become due for payment before or after termination.
11. GENERAL11.1 Survival
Upon termination of the GTC, the provisions relating to title and Intellectual Property Rights, confidentiality, limitations of liability and governing law and jurisdiction, shall survive.Also, any other provisions which by their nature contemplate effectiveness beyond the termination of any GTC, shall survive the termination.
11.2 Governing law and jurisdiction
This Agreement is governed by and construed in accordance with Norwegian law. Both parties hereto submit to the exclusive jurisdiction of the courts of Norway for all disputes arising out of or in connection with this Agreement, with Oslo, Norway as their exclusive legal venue.
11.3 Severability
If any part or provision of these Terms is invalid, unenforceable or in conflict with applicable laws, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that invalid provision. The remainder of these General Terms & Conditions will be binding on the parties.
11.4 Notices
Shapemaker may be required to notify Customer of certain events. Customer hereby acknowledges and consents that such notices will be effective upon posting on our Website, in the Platform, or delivering them to Customer through e-mail. Notices to Customer will be sent to the email address which Customer provided when setting up Customer’s access to the Service.
