PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY BEFORE USING THE SERVICE. THESE USE OF THE SERVICE AFFIRMS YOUR CONSENT AND AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE.
These Terms of Service (“Terms”) state the terms and conditions under which Shibumi’s website and hosted applications (“Service”) may be accessed and used by you, agent and end-users whether in connection with a paid subscription to the Service or a free trial of the Service.
This is a binding agreement between Shibumi.com, Inc., a Delaware corporation, and You (the “Agreement”) and governs your use of the Shibumi Service including, without limitation, all content such as text, information, images, applications, templates software and other information, services and materials and all information made available to you or by you through this site by Shibumi and/or third parties. The "Customer" shall mean the entity, organization or person identified in registration or ordering documentation by Shibumi for use of the Service, and a “User” shall mean a unique user of the Service authorized by Customer to access and use the Service on Customer’s behalf. Users may include but are not limited to Customer’s employees, consultants, contractors and agents. If You are entering into these Terms of Service on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to these Terms of Service for that Entity and representing to Shibumi that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Customer,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service. These terms may be subject to superseding terms contained in an enterprise or master service agreement between Shibumi and your organization. Please consult with the legal or procurement representatives for your enterprise to understand your continuing obligations.
Shibumi in its sole discretion, reserves the right to revise, update and change this Agreement from time to time without notice to you, and you agree to be bound by such modifications or revisions. Any new features that augment or enhance the current Service, including the release of new features and resources, shall be subject to this Agreement.
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
“Account” means any Shibumi accounts or instances created by or on behalf of Customer or its Users within the Service.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“API” means the application programming interfaces developed and enabled by Shibumi that permits Customer to access certain functionality provided by the Service, including without limitation, the Shibumi REST API that enables the interaction with a Shibumi instance automatically through HTTP requests and the Shibumi application development API that enables the integration of a Shibumi instance with other web applications.
“Confidential Information” means all information disclosed by You to Shibumi or by Shibumi to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
“Customer Data” means all electronic data, text, messages or other materials submitted to the Service by Customer and its Users and in connection with use of the Service, including, without limitation, Personal Data.
“Data Privacy Laws” means all applicable laws, regulations and regulatory guidance in relation to the processing or protection of Personal Data, as amended from time-to-time, including but not limited to, Regulation (EU) 2016/679 of 27 April 2016, General Data Protection Regulation (“GPDR”).
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionality of the Service provided or made available by Shibumi to Customer or Users through the Site or otherwise.
“Form” means any Shibumi generated service order form executed or approved by Customer with respect to a subscription to the Service, which form may detail, among other things, the number of Users authorized to use the Service under the Customer subscription to the Service and the Service Plan(s) applicable to the subscription to the Services.
“Other Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which Customer and Users may connect to or enable in conjunction with the Services, including, without limitation, Other Services which may be integrated directly into Shibumi Accounts.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
“Service” means the on-demand Shibumi cloud application and tools provided by Shibumi, including, individually and collectively, any related software, the API and any Documentation. Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (“Updates”) are also subject to these Terms and Shibumi reserves the right to deploy Updates at any time. You understand and agree that the Services may be sold separately or as a bundle; and, that individual Services may be subject to separate and distinct Service Plans.
“Service Plan(s)” means the service plan(s) and the functionality and services associated therewith for which You subscribe with respect to any User.
“Site” means www.shibumi.com and other websites that Shibumi operates to provide the Service.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Service with respect to any individual User.
“Shibumi” means Shibumi.com, Inc., a Delaware corporation or any of its successors, assignees or Affiliates. In these Terms, Shibumi may also be referred to through the use of “We” or “Our.”
2.1. During the Subscription Term and subject to compliance by Customer with these Terms, Customer has the limited right to access and use the Service for internal purposes consistent with the Service Plan(s) subscribed for. Without limiting the foregoing, the Customer’s right to access and use the API is also subject to the restrictions and policies implemented by Shibumi from time to time with respect to the API as set forth in the Documentation or otherwise communicated to in writing.
2.2. A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect to the Service, including, but not limited to, “web browser” software that supports protocols used by Shibumi, including Secure Socket Layer (SSL) protocol or other protocols accepted by Shibumi, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying Customer or any Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Shibumi. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3. In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Users in furtherance of Customer’s internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party other than Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Shibumi, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Shibumi; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in violation of these Terms.
2.4. Customer is solely responsible for ensuring that use of the Service to store and transmit Customer Data is compliant with all applicable laws and regulations. Customer also maintains all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Customer business purposes. Subject to any limitation on the number of authorized Users available under the Service Plan for which Customer subscribes, access to and use of the Service is restricted to the specified number of Users permitted under Customer’s subscription to the Service. Customer agrees and acknowledges that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. You will not share a User Login among multiple individuals. Customer and its authorized Users are responsible for maintaining the confidentiality of all Login information for the Customer Account.
2.5. Shibumi reserves the right, in Shibumi’s reasonable discretion, to temporarily suspend Customer access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Shibumi will use commercially reasonable efforts to provide notification in advance both through our forum page and a notice to Customer Account owner) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if Shibumi suspects or detects any Malicious Software connected to Customer Account or use of the Service by Customer or its Users. We will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours in our various geographically diverse hosting zones.
2.6. Shibumi reserves the right to modify, suspend or terminate the Service (or any part thereof), Customer Account or Your and/or Agents’or End Users’rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Agents or End Users have violated these Terms. Unless legally prohibited from doing so, Shibumi will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Shibumi shall not be liable to You, Agents, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End Users may be referred to law enforcement authorities at Our sole discretion
3.1. Subject to the express permissions of these Terms, You and Shibumi will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between You and Shibumi entered prior to these Terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Your Data.
3.2. Shibumi will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL/TLS or similar technologies) and at rest using AES256-bit level encryption.
3.3. You agree that Shibumi and the service providers it utilizes to assist in providing the Service to You shall have a limited, non-exclusive, royalty-free, worldwide license and right to access Customer Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Customer Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations.
3.4. Shibumi may also access or disclose information about You, Customer Account, Agents or End Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Shibumi’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Services; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
3.6. Shibumi is a certified member of the EU and Swiss Harbor Frameworks operated by the U.S. Department of Commerce and enforced by the Federal Trade Commission and adheres to the U.S.-EU and U.S-Swiss Safe Harbor Framework principles with respect to the transfer, processing and security of any Personal Data transferred from the European Economic Area or Switzerland to the United States.
3.8. Your Data is currently hosted by Shibumi or its authorized service partners in data centers located in the United States or the European Economic Area. If Your principal location is within the European Economic Area or the United States, We will use commercially reasonable efforts to notify You at least thirty (30) days before Our election to host Personal Data provided to Shibumi in connection with use of the Service in data centers located outside the European Economic Area or the United States. If You are entitled to this notice and do not wish to have Your Personal Data hosted in data centers located in such other country or territory, You may terminate Your Subscription and Customer Account with immediate effect upon written notice to Shibumi within thirty (30) days or Your receipt of such notice. For avoidance of doubt, the foregoing shall not, in any event, be deemed to limit any other manner of processing of such Personal Data within Shibumi or to authorize service providers whether in the European Economic Area, the United States or elsewhere.
4.1. Shibumi alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Shibumi technology, the content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, Shibumi technology or its intellectual property rights. The Shibumi name, the Shibumi logo, and the product names associated with the Service are trademarks of Shibumi or third parties, and no right or license is granted to use them.
4.2. All copyrights and/or other intellectual property rights, title and interests in a) software on which the Service is based and made available to the Customer and/or User, b) source codes or other software components of the Service, c) content of the website shibumi.com and its subdomains and the Service including text and graphics, excluding data stored by the Customer and/or User, d) trademarks, names etc. are the sole property of Shibumi, and/or third parties having granted Shibumi license for its use, and the Customer and/or User shall gain no rights to said intellectual property rights other than the limited right of use as stipulated in this Agreement.
4.3. The Customer and/or User shall not reproduce or redistribute any software, content or trademarks, intellectual property in any form, except as allowed in this Agreement.
4.4. Without limiting Customer’s ownership rights in the Customer Data, Customer acknowledges and agrees that Shibumi shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Customer identifiable data or information resulting from Customer’s use of the Services (“Statistical Data”). Shibumi retains all intellectual property rights in such aggregate and statistical information. Statistical Data may be collected by Shibumi for any lawful business purpose without a duty of accounting to Customer or User, provided that the Statistical Data is used only in an aggregated form, without specifically identifying the source of the Statistical Data unless otherwise agreed to through an “opt-in” procedure to participate in enhanced Shibumi services.
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Shibumi with respect to such Other Services. Shibumi is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Shibumi to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHIBUMI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SHIBUMI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM SHIBUMI OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS
7.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
7.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SHIBUMI’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 7.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SHIBUMI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SHIBUMI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
7.3. Some jurisdictions 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 JURISDICTIONS, SHIBUMI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You will indemnify and hold Shibumi harmless against any claim brought by a third party against Shibumi arising from or related to use of the Service by You, Agents or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that Shibumi promptly notifies You of the threat or notice of such a claim.
9.1. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Shibumi’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of Shibumi or in connection with any merger or change of control of Shibumi or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
9.2. These Terms, together with any applicable master service agreements with your organization, constitute the entire agreement, and supersede any and all prior agreements between You and Shibumi with regard to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features or functionality Shibumi offers through the Services (the “Additional Terms”). In those instances, Shibumi will notify You of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Customer Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Customer Account activate the feature or functionality. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
9.3. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Shibumi as Your consent to any such amendment. Shibumi’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
The Service and other software or components of the Service which Shibumi may provide or make available to You, Agents or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, software and such other components by You, Agents and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Agents or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End Users are located.
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 1, 3, 4 and 7-16 shall survive any termination of our agreement with respect to use of the Service by You, Agents or End Users. Termination of such agreement shall not limit Your or Shibumi’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
All notices to be provided by Shibumi to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any Form; or (ii) electronic mail to the electronic mail address provided for Customer Account owner. You must give notice to us in writing by Courier or US Mail to the following address: Shibumi.com, Inc., Attn: Legal Department, 228 Park Avenue, Suite 18637, New York, NY 10003 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
These Terms shall be governed by the laws of the State of Delaware without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of New York, NY, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You, Agents or End Users.
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.