Terms of service

These Terms of Service are to be read in conjunction with your Subscription Documents.

Starting on the Effective Date, you agree to be bound by these Terms without modifications on behalf of the entity set out in the Subscription Documents. If you do not agree to be so bound, you must cease using the service immediately.

App Subscription

The rights for the app to be a part of the Service relevant to the Subscription Plan in force.

Authorized Users

Employees, agents or independent contractors who have signed up to use the Service, or as described in the Subscription Documents.

Confidential Information

Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 5.

Data Processing Agreement

Shake’s Data Processing Agreement which may be modified from time to time.

Effective Date

The date when you first access or use any part of the Service.

Privacy Policy

Shake’s Privacy Policy which may be modified from time to time.

Service

The website and all content, documentation, services and products available from Shake.

Site

www.shakebugs.com website and all subdomains, including but not limited to app.shakebugs.com and help.shakebugs.com.

Subscriber Data

The data inputted by you, Authorized User, or Shake on your behalf for the purpose of using the Service or facilitating your use of the Service.

Subscription Documents

All invoices, emails, service descriptions, purchase orders and specifications which set out the agreed Price, number and nature of any Authorized Users and apps together with any Subscription Period or other terms agreed between the parties.

Virus

Any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Subscription Fees

The subscription fees payable by you to Shake for the App Subscriptions, as set out in the Subscription Documents.

Subscription Period

Shake offers a number of free and paid plans. The functionalities provided to you are those set out from time to time in the current Subscription Plan description which can be found on our Site.

Terms

These Terms of Service.

1.1 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.2 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms.

1.6 References to Clauses are to the Clauses of these Terms.

Payments and subscription

2.1 Subject to you choosing and paying the fees attributable to your chosen Subscription Plan, Shake hereby grants to you as subscriber a non-exclusive, non-transferable right to use the Service during the Subscription Period solely for your internal business operations.

2.2 You undertake that:

  1. You will not permit your logon to be used by anyone who is not lawfully engaged by your business to access the Service and as permitted by the Subscription Plan which you purchase,
  2. you will obtain the informed consent of any data subject to the storage and processing of personal data and that you will comply with the Privacy Policy and the Data Processing Agreement as published by Shake,
  3. you will comply with all local data protection laws and regulations in jurisdictions in which you operate,
  4. each Authorized User shall keep a secure password for his use of the Service, and that each Authorized User shall keep his password confidential,
  5. It is your responsibility to disable the access authority and or password for any person, employee or user who for any reason ceases to be an Authorized User or whom you believe may have used access to the Service for an unauthorized or unlawful purpose,
  6. Where the Subscription provided to you is limited by functionality or the number of records, it is your responsibility to disable redundant or unused records.

2.3 In the event of any unauthorized access or use described in Clause 2.2, you must immediately notify Shake.

2.4 One person or legal entity may not maintain more than one free Subscription Plan.

2.5 Subscription Fees (plus any applicable taxes and other charges) shall be automatically charged in advance on the first day of each Subscription Period, by credit card, or such other means as accepted by Shake. You shall ensure that sufficient funds are available on the relevant account and acknowledge that late payment may result in the suspension of Service or termination of this Agreement. All amounts and fees stated or referred to in these Terms shall be payable in US dollars and are non-cancellable and non-refundable.

2.6 Unless you cancel your paid Subscription Plan before the end of the applicable Subscription Period, your Subscription Plan will automatically renew for another Subscription Period and you authorize us to collect the then-applicable Subscription Fees using any credit card or other payment mechanism we have on record for you.

2.7 You may change your Subscription Plan or add additional App Subscriptions at any time. In such cases, you shall pay to Shake the relevant Subscription Fees for such additional Subscriptions as set out in the Subscription Documents and specified by Shake’s current rates and tariffs and specifications.

2.8 Downgrading your Service may cause the loss of content, features, or capacity of Authorized Users. Shake does not accept any liability for such loss and no rebates will be made.

2.9 In the event of non-payment your Service Plan will automatically be reduced to that attributable to our free Subscription Plan, to the extent that plan is available at the date of default.

Intellectual property

3.1 You acknowledge and agree that Shake and/or its licensors own all intellectual property rights in the Service, and that those are being solely licensed to you, not sold.

3.2 These Terms do not grant you any rights to, or in, patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service.

Subscriber Data

4.1 You own all right, title and interest in and to all of your Subscriber Data and shall have sole responsibility for the legality, security, reliability, integrity, accuracy, quality and use of all of the data which you upload to the Service.

4.2 Shake shall not be responsible for any loss, destruction, alteration, corruption or unauthorized disclosure of any Subscriber Data.

4.3 In the event of any loss or damage to Subscriber Data, your sole and exclusive remedy shall be for Shake to use commercially reasonable efforts to restore the lost or damaged Subscriber Data from the latest backup of such Subscriber Data maintained by Shake.

4.4 Shake shall, in providing the Service, comply with these Terms and its Privacy Policy and Data Processing Agreement relating to the privacy and security of your Subscriber Data.

4.5 Shake shall be entitled to maintain logs and records of your use of the Service. Such data may be used to track faults and improve the quality of the Service provided to you.

4.6 Shake may use your organization name as a reference for marketing or promotional purposes on Shake’s webpages and in other communication with existing or potential clients. By using our Service, you are consenting to us using your information in this way. For example, Shake might list your company on one of our webpages under lists of Service customers. Shake does not want to list customers who do not want to be listed, so please send an email to friends@shakebugs.com stating that you do not wish to be used as a reference if you wish to opt out of this.

4.7 If Shake processes any personal data on your behalf when performing its obligations under these Terms, the parties record their intention that you shall be the data controller and Shake shall be a data processor and in any such case:

  1. You acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorized Users are located in order to carry out the Service and Shake’s other obligations under these Terms,
  2. You shall ensure that you are entitled to transfer the relevant personal data to Shake so that Shake may lawfully use, process and transfer the personal data in accordance with these Terms on your behalf,
  3. You shall ensure that the relevant Third Parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation,
  4. You shall take appropriate technical and organisational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage, and
  5. Shake shall process the personal data in accordance with these Terms.

Confidentiality

5.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that:

  1. is or becomes publicly known other than through any act or omission of the receiving party,
  2. was in the other party’s lawful possession before the disclosure,
  3. is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure,
  4. is independently developed by the receiving party, which independent development can be shown by written evidence, or
  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

5.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any Third Party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms.

5.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms.

5.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any Third Party.

5.5 You acknowledge that details of the Service, and the results of any performance tests of the Service, constitute Shake’s Confidential Information.

5.6 Shake acknowledges that Your Data is the Confidential Information of You.

5.7 This Clause 5 shall survive termination of these Terms.

Third-Party providers

6.1 Shake makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any Third-Party website, or any transactions completed, and any contract entered into by you, with any such Third Party.

6.2 Any contract entered into and any transaction completed via any Third-Party website is between you and the relevant Third Party, and not Shake. Shake recommends that you refer to the Third Party’s website terms and conditions, privacy policy and data processing agreement prior to using the relevant Third-Party website. Shake does not endorse or approve any Third-Party website nor the content of any of the Third-Party website made available via the Service.

Subscriber’s obligations

7.1 You shall:

  1. provide Shake with all necessary co-operation in relation to these Terms,
  2. provide Shake with all necessary access to such information as may be required by Shake in order to provide the Service, including but not limited to Subscriber Data, security access information and configuration data and information,
  3. comply with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) with respect to its activities under these Terms,
  4. carry out all other responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, Shake may adjust any agreed timetable or delivery schedule as reasonably necessary,
  5. ensure that all of your Authorized Users use the Service in accordance with these Terms and shall be responsible for any Authorized User’s breach of these Terms,
  6. obtain and shall maintain all necessary licences, consents, and permissions necessary for Shake, its contractors and agents to perform their obligations under these Terms, including without limitation the Service,
  7. ensure that its network and systems comply with the relevant specifications provided by Shake from time to time, and
  8. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Shake’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

Prohibitions

8.1 You may use the Service only if you are 13 (and in certain jurisdictions 16) years or older and are not barred from using the Service under applicable laws.

8.2 You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:

  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive,
  2. facilitates illegal activity,
  3. depicts sexually explicit images,
  4. promotes unlawful violence,
  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or
  6. in a manner that is otherwise illegal or causes damage or injury to any person or property.

and Shake reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this Clause.

8.3 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under these Terms, you shall not:

  1. copy or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means, or
  2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service, or
  3. access all or any part of the Service in order to build a product or service which competes with the Service, or
  4. use the Service to provide services to Third Parties, or
  5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any Third Party except the Authorized Users, or
  6. attempt to obtain, or assist Third Parties in obtaining, access to the Service.

8.4 It is expressly forbidden to tamper with, disable or modify any Shake usage tracking mechanisms.

Disclaimers

9.1 Shake and its suppliers and licensors:

  1. do not warrant that your use of the Service will be uninterrupted or error-free; or that the Service and/or the information obtained by you through the Service will meet your requirements, and
  2. are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.2 These Terms shall not prevent Shake from entering into similar agreements with Third Parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.

9.3 Shake has no obligation to provide maintenance or support of the Service.

9.4 Shake reserves the right, at its sole discretion, to modify or replace any part of these Terms or the Service.

9.5 It is your responsibility to check these Terms periodically for changes. Your continued use of or access to the Service following the posting of any changes to these Terms constitutes acceptance of those changes.

9.6 Shae may also, in the future, offer new services and/or features through the Service (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of these Terms.

9.7 Shake reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.

9.8 Prices of all Services, including but not limited to monthly subscription fees to the Service, are subject to change upon 30 days notice from us. Such notice may be provided at any time by posting the changes to the Site or by contacting you by email.

Term and termination

10.1 All of the Service are provided in accordance with the Subscription Plan which you choose and in relation to which you pay the fees attributable to that Plan.

10.2 Without affecting any other right or remedy available to it, Shake may terminate these Terms or your access to all or any part of the Service at any time, with or without notice, with or without cause, and with immediate effect.

10.3 On termination of these Terms for any reason:

  1. your account or access to your account may be deleted,
  2. the content in your account may be forfeited and relinquished,
  3. all licences granted under these Terms shall immediately terminate,
  4. you shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to Shake, and
  5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

Indemnity

11.1 You shall defend, indemnify and hold harmless Shake and its officers, directors, employees and agents, from and against claims, disputes, actions, proceedings, losses, liabilities, damages, expenses and costs (including without limitation court costs and legal fees) arising out of or in connection with:

  1. your use of the Service,
  2. your and any of your Authorized Users’ user content,
  3. acts or omission of any of your Authorized Users, or
  4. your or your Authorized Users’ violation of these Terms or any applicable law.

11.2 The foregoing and Clause 12.4 state your sole and exclusive rights and remedies, and Shake’s (including Shake’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Limitation of liability

12.1 This Clause 12 sets out the entire financial liability of Shake (including any liability for the acts or omissions of its employees, agents and subcontractors) to you:

  1. arising under or in connection with these Terms,
  2. in respect of your use of the Service, and
  3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

12.2 Except as expressly and specifically provided in these Terms:

  1. You assume sole responsibility for results obtained from the use of the Service, and for conclusions drawn from such use. Shake shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts you provided to Shake in connection with the Service, or any actions taken by Shake at your direction,
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms, and
  3. the Service is provided to you on an “as is”, “as available” basis, with all faults and without warranty of any kind.

12.3 Shake shall not be liable whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.

12.4 Shake’s total aggregate liability in contract (including in respect of the indemnity at Clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid by you during the three (3) months preceding the claim from which the claim arose, or one hundred dollars ($100), if you have not had any payment obligations to Shake, as applicable.

General terms

13.1 Shake is under no obligation to give you notice and shall have no liability to you under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Shake or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

13.2 If there is any conflict between the provisions of these Terms and any Subscription Documents, the terms in the Subscription Documents shall prevail.

13.3 Shake’s failure or delay to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4 Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

13.5 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

13.6 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

13.7 These Terms, and any documents referred to in it, constitute the entire agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

13.8 Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person (whether a party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.

13.9 You shall not, without the prior written consent of Shake, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

13.10 Shake may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

13.11 Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.12 All notices required or permitted under this Agreement will be by email. All notices to Shake will be sent to friends@shakebugs.com (or to such other email address as we may notice to you from time to time). All notices to you will be sent to the email address you provide to Shake as part of the Subscriber Data (or to such other email address as you may notify to us from time to time).

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