Subject to the terms of the Order Form, any Statement of Work, and these Enterprise Terms and Conditions (this “Agreement”), Shade Inc. (“Shade”, “we”, “us”, and/or, “our”) provides access to Shade’s platform and software as a service, including, without limitation, certain API's, desktop applications described in an Order Form and/or professional services set forth in a Statement of Work (“Professional Services”) (collectively, the “Services”). By signing an Order Form or Statement of Work that references these Terms and Conditions you acknowledge that you have read, understand, and agree to be bound by this Agreement. The Services will be as described on each Order Form or Statement of Work that references these Enterprise Terms and Conditions and will be provided in accordance with the Service Level Terms available at https://shade.inc/sla.
If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term "you" shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
IMPORTANT: PLEASE REVIEW THE MUTUAL ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH SHADE ON AN INDIVIDUAL BASIS (WAIVING YOUR RIGHT TO A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THIS AGREEMENT ALSO CONTAINS RELEASES, LIMITATIONS ON LIABILITY, AND PROVISIONS ON INDEMNITY AND ASSUMPTION OF RISK, ALL OF WHICH MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES. PLEASE REVIEW THEM CAREFULLY.
1. Age and Eligibility.
You certify that you are a person at least 16 years of age. Services may only be used or accessed through an electronic device controlled by you at all times. A valid Shade account may only be created and maintained if you provide valid information in the signup process, and you regularly update such information to assure its accuracy.You shall be responsible for maintaining the confidentiality of login information associated with your account. Each user must have unique login credentials that must not be shared by multiple users. You are responsible for all activities that occur under your account.
2. Temporary Use License.
During the period for which you are authorized to use the Services, and subject to your compliance with the terms of this Agreement, you are granted a personal, non-sublicensable, non-exclusive, non-transferable, limited license, to use the Services for your internal business or personal purposes according to the service capacity of your account. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Shade or any third-party is granted to you in connection with the Services.
Shade shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.
3. Intellectual Property Ownership; Your Content.
You are solely responsible for all data, information, feedback, suggestions, media, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "post(ing)") in connection with or relating to the Services ("Your Content"). Shade acknowledges that, as between Shade and you, you own all rights, titles, and interests, including all intellectual property rights, in and to Your Content. You are responsible for maintaining the confidentiality of usernames and passwords associated with your account and for all activities that occur under your account. Shade reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Services, you grant Shade a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, copy, modify, reproduce, distribute, display, publish, store and perform Your Content only in connection with its provision of the Services and for security to protect the Services and third parties from fraud, malware, malicious files or content, viruses and the like. You further agree that Shade may remove or disable any of Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third-parties or authorities relating to Your Content), or for no reason at all.
4. Hobby Plan.
We offer a free hobby plan at our sole discretion. You shall only use the Services under a hobby plan for your personal or non-commercial use. We may change the terms and conditions applicable to the hobby plan or discontinue offering the hobby plan at any time. We reserve the right to disable or remove any project or website deployment on the hobby plan with or without notice at our sole discretion. We may shut down and terminate projects or deployments using the hobby plan without notice for any reason or no reason. We may shut down affected projects or deployments on the hobby plan in case of any delays or performance problems including, without limitation, those caused by a malicious attack on a project or deployment.
5. Fair Use.
We will use commercially reasonable efforts to provide all plan levels with sufficient bandwidth, egress, and storage. We will notify you if your usage is unreasonable, and we may shut down and terminate projects and accounts that are creating an unreasonable burden on our infrastructure and/or business operations, as set forth in Sections 10 and 17.1 below.
6. Acceptable Use.
The Services may only be used for lawful purposes.
You shall not attempt to undermine the security or integrity of computing systems or networks of Shade, its partners, or any other person, and must not attempt to gain unauthorized access.
The network resources of Shade may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Shade.
You must not introduce software or automated agents or scripts into Shade’s website in order to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine content or data from Shade’s website.
You must not access Shade's website through automated methods, including any use of robots or other computer code which calls Shade’s website.
You shall not send unsolicited messages or use the Services to send unsolicited messages (also known as junk mail or SPAM).
You shall not use the Services to reproduce the functionality of Shade Services, including any storage products.
You may not rent, lease, loan, or sell access to, or otherwise attempt to transfer any right in Shade’s website (which includes its software and documentation) to a third-party, through framing or any other method.
You may not engage in any namesquatting behavior within Shade namespaces such as usernames, team names, or deployment URLs; attempt to resell, barter, or trade names; or inactively hold names for future use.
You must not interfere with or disrupt the Services or create an undue burden on Shade’s website or the networks or services connected to Shade’s website.
You may not use the services or Shade’s infrastructure for proxying, scraping, to create virtual private networks, or to create virtual private servers.
You must not perform any benchmark tests or analyses relating to Shade’s website or Services without express permission from Shade.
You shall not use the Services to host any Protected Health Information or information that is subject to the Health Insurance Portability and Accountability Act (HIPPA), unless you first obtain Shade’s prior written approval.
The final decision of whether an account is in violation of any of these acceptable use terms is at the sole discretion of Shade. You agree that violations of this Agreement by yourself or any person or entity acting under your account will, in addition to any other remedies including criminal prosecution, result in termination of your access to Shade’s website and removal (taking down) of all projects and deployments. In addition, violation of these terms or any of Shade’s policies may result in tracking information being stored to identify the offending person, and permanent restriction from holding an account on Shade’s website and Services.
7. Etiquette.
Without limiting any terms of this Agreement, you shall not use the Services for, or in conjunction with, a website (including links from a website) that has any content that may be objectionable (as determined in Shade’s sole discretion), abusive, profane, hate speech or violates any applicable law. You hereby agree to indemnify and hold Shade harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services in a manner not authorized by this Agreement. Although Shade has no obligation to monitor your use of the Services, Shade may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. YOU ACKNOWLEDGE THAT SHADE MAY DISABLE OR TERMINATE THE SERVICES IF SHADE BELIEVES THERE IS ANY CONTENT THAT VIOLATES THIS AGREEMENT, INCLUDING THE ACCEPTABLE USE TERMS AND THE RESTRICTIONS ABOVE, PURSUANT TO SHADE’S DMCA POLICY AND/OR AS REQUIRED BY SHADE’s HOSTING PROVIDERS.
8. Security.
You shall configure Your Content, including any of your projects or deployments, such that the transmission, storage, or use in any way will not expose personal data or personal information without proper consent from individuals as determined by applicable law. You shall configure the Services in accordance with the Documentation and properly implement encryption as set forth in the Documentation. Shade implements regular backups of Your Content and you shall also maintain its own backups of Your Content. Shade will have no liability to you for any unauthorized access or use of any of Your Content or any corruption, deletion, destruction or loss of any Your Content to the extent that is attributable, in whole or in part, to your misconfigurations or an insecurity in your website or project, malware or malicious content in your website, Your Content or project. If any actual or suspected security incident, vulnerabilities, violations of this Section 8, or issue related to the Services are identified, you shall immediately report it to support@shade.inc
9. Data Protection.
9.1 International Transfers of Data.
To the extent that you have a self-service subscription, and Your Content or Your Data (as defined below) is subject to any applicable data protection or privacy law, as defined in Shade’s Data Processing Addendum ("DPA"), and is processed and/or stored by Shade on your behalf in connection with the Services, you agree to the terms of the DPA. If this applies to you, please return a signed copy of our DPA at your earliest convenience.
9.2 Privacy Policy.
Please visit https://shade.inc/legal/privacy to understand how Shade collects and uses your information.
10. Usage Restrictions.
You will not, directly or indirectly: (i) sublicense, resell, rent, lease, transfer, assign, or otherwise commercially exploit or make the Services available to any third party; (ii) 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 Services or any software, documentation or data related to the Services (where reverse engineering is permitted by applicable law obtaining such information as is necessary to achieve interoperability with Shade’s services, you must first request such information from Shade); (iii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Shade or authorized within the Services) or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels; (iv) remove, alter or obscure in any way any proprietary rights notices (including copyright notices) of Shade or its suppliers on or within the Services or documentation; (v) violate any applicable laws or regulations (including without limitation in violation of any data, privacy or export control laws) or infringe the rights of any third-party in connection with the use or access of the Services. You shall comply with any codes of conduct, policies or other notices, Shade provides you or publishes in connection with the Services, and you shall promptly notify Shade if you learn of a security breach or issue related to the Services. Without limiting the foregoing, you acknowledge that Shade may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data, code or other content will be retained by the Services, the maximum storage space that will be allotted on Shade’s servers on your behalf, and the maximum compute capacity provided for the execution of builds and functions and the maximum network data transferred by the Services. You further acknowledge that Shade reserves the right to change these general practices and limits at any time, in its sole discretion. Shade's DMCA Policy is incorporated by reference into this Agreement.
11. Support.
Subject to the terms hereof, Shade may, but is not required to, provide you with commercially reasonable remote technical support services during Shade’s normal business hours ("Support Services") in accordance with Shade’s current Support Terms and Conditions or support terms associated with the order form. Shade reserves the right to access your Account in order to respond to your requests for technical support.
12. Electronic Communications.
By using the Services, you consent to receiving electronic communications from Shade. These electronic communications may include notices about applicable Services fees and charges related to the Services and transactional or other information concerning or related to the Services. They may also include notices that require responses and or action to avoid service interruptions. These electronic communications are part of your relationship with Shade and you receive them as part of your use of the Services. Your account email address must be kept current and maintain a responsive user at all times. You agree that any notices, agreements, disclosures or other communications that Shade sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
13. Representation and Warranties.
13.1. Representations.
You represent and warrant that (i) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in posting and other activities (and allow Shade to perform its obligations) in connection with the Services without obtaining any further releases or consents; (ii) Your Content and other activities in connection with the Services, and Shade’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy, or publicity, or other personal or proprietary right and Your Content is not defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iii) you will use the Services only in compliance with Shade’s standard published policies and documentation then in effect and all applicable laws and regulations.
13.2. Mutual Warranty.
Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement.
14. Indemnification.
14.1 Mutual Indemnification
Each party (the “Indemnifying Party”) agrees that it will, from and after the the start of the term, pay, defend, indemnify, reimburse and hold the other party (the “Indemnified Party”), harmless for, from and against any third party loss, damage, claim, action, liability, debt, obligation or expense, including, without limitation, interest, reasonable attorneys’ fees and costs, expenses of litigation or other costs of any nature (collectively, a “Claim”) incurred or suffered or paid by, imposed upon, resulting to or threatened against an Indemnified Party and which directly or indirectly results from, arises out of or in connection with, is based upon, or exists by reason of either party’s performing or failing to perform the terms of this Agreement, provided that the Indemnifying Party shall not be required to indemnify, reimburse or hold harmless any Indemnified Party for Claims arising from an Indemnified Party’s willful or wanton behavior.
14.2 Claim Notification
An Indemnified Party shall timely notify the Indemnifying Party of any Claim. The Indemnified Party shall afford the Indemnifying Party the opportunity to undertake the defense of such Claim through counsel retained by the Indemnifying Party at its sole cost and expense (which counsel shall be, however, reasonably satisfactory to the Indemnified Party). If the Indemnifying Party (i) fails to elect to undertake the defense of such Claim within a reasonable time after notice from the Indemnified Party, or (ii) having undertaken the defense, thereafter fails to continue to do so diligently and in good faith, then the Indemnified Party may undertake the defense of such Claim through counsel of its own choosing, and all reasonable fees and expenses in connection therewith shall be timely reimbursed to the Indemnified Party by the Indemnifying Party. If the Indemnifying Party is providing a defense for the Claim, then it shall have the right to settle any such Claim, provided that no such settlement shall be made without the prior written consent of the Indemnified Party.
14.3 Duration
The provisions of this Indemnification Section 8 shall survive the expiration or earlier termination of the Agreement.
15. Confidentiality; Proprietary Rights.
15.1. Confidentiality.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, product or financial information or data relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Shade includes non-public information regarding features, functionality and performance of the Services. Your Proprietary Information includes non-public personal data provided by you to Shade to enable the provision of the Services and that you upload to the Services (collectively, "Your Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise 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 after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without confidentiality restrictions by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party as evidenced by its internal files. If a Receiving Party is required by law or a governmental agency to disclose the Disclosing Party's Proprietary Information, the Receiving Party must provide reasonable notice to the Disclosing Party of such required disclosure so as to permit the Disclosing Party a reasonable period of time to seek a protective order or limit the amount of Proprietary Information to be disclosed.
15.2. Use of Your Data.
You shall own and retain all right, title and interest in and to Your Data. Shade may use and disclose Your Data solely to the extent necessary to provide the Services to you and for security to protect the Services and third parties from fraud, illegal activities, malware, malicious files or content, viruses and the like and for no other purpose. Otherwise, Shade will not sell, disclose, or share any Your Data (or any part or product thereof) with anyone else. Shade will implement and maintain reasonable information security policies and processes (including technical, administrative and physical safeguards) that are designed to prevent unauthorized access to or use or disclosure of the Services or any Your Data.
15.3. Company Ownership.
Shade shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.
15.4. Feedback.
To the extent you or any of your users provide any suggestions to Shade regarding the functioning, features, and other characteristics of the Services, documentation, or other material or services provided or made available by Shade ("Feedback"), you hereby grant Shade a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully transferable, worldwide license (with rights to sublicense through multiple tiers of sublicenses) under all of your intellectual property rights, for Shade to use and exploit in any manner and for any purpose.
15.5. Aggregate Data.
Shade shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding Your Data and data derived therefrom), and Shade will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Shade offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
15.6. Customer Name.
During the term of this Agreement, you grant Shade a non-exclusive, royalty-free, fully-paid up license to use and reproduce your trademarks, tradenames and logos in Shade's marketing materials and website(s) and to indicate that you are a Shade customer. Shade will abide by any written trademark usage guidelines provided by you. All goodwill arising out of the use of your trademarks, tradenames and logos shall inure to your benefit.
16. Payment of Fees.
16.1 Payments and fees.
You will pay Shade the then applicable fees described in the Order Form and/or Statement of Work for the Services set forth therein”) in accordance with the terms therein (collectively, the “Fees”) and as follows:
Fees for subscription-based Services and Service Capacity shall be paid in advance on an annual basis as set forth in the Order Form. At any time during the term of your subscription, you may submit an Order Form to increase the Service Capacity of the Services and, upon Shade’s acceptance of such Order Form, you shall pay the Subscription Fees for such increased capacity, pro-rated for the remainder of your then-current term, and such Order Form shall renew concurrently with your then-current subscription for a period equal to your initial term.
Fees for additional usage, including usage fees incurred in excess of Service Capacity, shall be paid in arrears within thirty (30) days of the invoice date, or as set forth in the Order Form.
Fees for Professional Services as set forth in a Statement of Work shall be paid within thirty (30) days of the invoice date.
16.2. Payment Information
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 suspension of Services upon written notice to you of late payment.
You represent and warrant to Shade that all of your payment information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. All fees are non-refundable, except as otherwise expressly stated in this Agreement.
16.2. Currency and Taxes.
All payments shall be made in the currency of, and within the borders of the United States. You will pay all applicable taxes, duties, withholdings, backup withholding and the like; when Shade has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by you directly to Shade. If all or any part of any payment owed to Shade under this Agreement is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Shade of the amounts otherwise payable under this Agreement. You will reimburse Shade any pre-approved and agreed upon costs. Shade may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for you until the start of the next payment period. Shade will provide written notice to you for any changes to the fees that affect the Services purchased by you. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount.
17. Term and Termination.
17.1. Term.
Subject to earlier termination as provided below, the term of this Agreement will commence on acceptance of this Agreement and will continue for as long as the Services are being provided to you under this Agreement. The term of each Order Form shall automatically renew for successive terms equal in duration to the initial subscription term unless either party notifies the other party in writing, and, at least sixty (60) calendar days before the expiration of the then-current subscription term, that such party does not wish to renew the Services for an additional subscription term.
Either party may terminate this Agreement for the other party's material breach of this Agreement on thirty (30) days prior written notice if the breach (if curable) remains uncured within such time period, except that Shade also may terminate this Agreement on fifteen (15) days' prior written notice if you exceed any Service Capacity and do not pay for such use.
17.2. Survival.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 16.1 and 16.2, and accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
17.3. Effect of Termination.
Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Services shall immediately terminate and you and your users shall cease use of the Services; (ii) Shade will cease providing any Support Services; (iii) you shall pay to Shade the full amount of any outstanding fees due hereunder; and (iv) within fourteen (14) calendar days of such termination, each party shall destroy or return all Proprietary Information of the other party in its possession or control, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement.
18. Disclaimer.
THE SERVICES AND SUPPORT SERVICES ARE PROVIDED "AS IS" AND SHADE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SHADE DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES 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 OR DELIVERABLES.
19. Limitation of Liability.
19.1. Limit of Liability and Waiver of Consequential Damages.
EXCEPT FOR YOUR BREACH OF SECTIONS 10, 15, OR 16, OR YOUR BREACH OF ANY REPRESENTATIONS OR WARRANTIES OR YOUR INDEMNITY OBLIGATIONS, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR (C) FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OF LIABILITIES IN AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF ONE HUNDRED DOLLARS AND THE FEES PAID BY YOU TO SHADE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER THIS AGREEMENT.
19.2. Limits.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, SHADE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
20. Miscellaneous.
Shade may change this Agreement from time to time by providing notice either by emailing the email address associated with your account or by posting a notice at https://shade.inc You can review the most current version of this Agreement at any time at https://shade.inc/legal/terms The revised Agreement will become effective immediately after Shade posts or sends you notice of such changes, and if you use the Services after that date, your use will constitute acceptance of the revised Agreement. If any change to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to Shade Support via the Help page. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You may not assign, transfer or sublicense without the prior written consent of Shade, but Shade may assign or transfer this Agreement, in whole or in part, without restriction. Any attempted assignment or transfer of this Agreement by the parties in contravention of the foregoing shall be null and void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all amendments must be in writing signed by both parties, except as otherwise provided herein. Shade’s failure to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.Any delays in or failure of performance of Shade shall not constitute a default hereunder or give rise to any claims for damages if, to the extent that, and for such period that, such delays or failures of performance are caused by any events beyond the reasonable control of Shade including, without limitation, any of the following specific occurrences: acts of God or the public enemy, acts of terrorism, pandemics, epidemics, labor strikes, expropriation or confiscation of facilities, compliance with any unanticipated duly promulgated governmental order, acts of war, rebellion or sabotage or damage resulting therefrom, fires, floods, explosion, or riots.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.Customer agrees that in the event of a breach or threatened breach of the scope of the access rights herein or of its obligations of confidentiality, Company will suffer irreparable harm for which it will have no adequate monetary remedy, and shall be entitled to seek injunctive and other equitable relief for such breach, in addition to and not in limitation of any other legal or equitable remedies to which it would otherwise be entitled.
21. Governing Law; Disputes; Arbitration.
21.1. Law.
This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
21.2. Binding Contract.
You acknowledge that this Agreement is a contract between you and Shade, even though it may be electronic and may not be physically signed by you and Shade, and it governs your use of the Services.
22. Previews.
Shade may elect to provide certain Previews from time to time. Previews are provided "AS-IS", "WITH ALL FAULTS", and "AS AVAILABLE". Shade’s warranties, indemnities and SLA terms do not apply to Previews and Support Services are not provided for Previews. Shade may change, discontinue or terminate your use of Previews at any time without notice. "Previews" means Services, releases, features, or functionality provided for preview, pre-release, evaluation, demonstration, beta, or similar uses and purposes.
