Shader Terms of Use

Shader Terms of Service

Effective as of: April 9, 2024

These Terms of Service (these “Terms”) describe your rights and responsibilities when using our online connection programs and services located at www.shader.com, shader-api.com, or via Shader’s application(collectively, the “Services”). Please read these Terms carefully; if you don’t agree to be bound by these Terms, you aren’t allowed to access or use the Services.

1. General Information

1. 1.1 These Terms Form a Binding Contract. Unless the parties have mutually executed a different agreement covering your use of the Services, these Terms form a binding contract between you and Shader.  “Shader,” “we,” “our,” and “us” refers to Shader, Inc., while “User” or “you” refers to you (or, as applicable, the company or entity that you represent).  By using Shader or any of our other products or Services that are subject to these Terms (which we refer to collectively as the “Services”), you agree to the Terms. The “Effective Date” of these Terms is the date that you first use our website or access any of our Services. If you access or use the Services in your capacity as an employee, consultant or agent of a company or other entity, you represent that you are an employee, consultant or agent of that company or entity, and that you have the authority to bind that company or entity to these Terms
2. 1.2 These Terms Contain an Arbitration Provision. These Terms contain an arbitration provision (see Section 12, below).  Please review the arbitration provision carefully, since it affects your rights by using the Services or any part of them, you understand and agree to be bound by the arbitration provision.
3. 1.3 Ordering Subscriptions. A Subscription allows you (and a specified number of your authorized users) to access the Subscription Benefits within the Services. A Subscription can be obtained via the Services “billing” interface, or you can get a Subscription via an order entered into between the parties (an “Order”). We have several different types of Services Subscriptions available, including a free plan (for which there are no Subscription fees). One person or legal entity may not sign up for more than one free plan.  Subscriptions commence when we make them available to you, and, unless terminated in accordance with these Terms, will continue for the term specified in the Services “billing” interface or in the Order, as applicable. See Section 2.8 for additional terms and conditions regarding your Subscription.
4. 1.4 Making Your Purchasing Decisions. We may share information about our future product plans because we to get product feedback from you early and often. Our public statements about those product plans are an expression of intent, but please do not rely on them when making a purchase. If you decide to buy a Subscription to our Services, that decision should be based on the functionality or features we have made available today, and not on the delivery of any future functionality or features.
5. 1.5 Beta Products. Occasionally, we beta test new features. These features may be identified as “beta,” “pre-release,” or “early access,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for prime time so they are made available “as is,” and any commitments we make for other Services do not apply. Should you encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.
6. 1.6 Your Feedback. If you send us any feedback or suggestions regarding the Services, there is a chance we will use it, so you grant us (on behalf of itself and its personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to you or your personnel.
7. 1.7 Modification of the Terms. We reserve the right to change or modify these Terms, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, among other things, sending you an email, posting a notice on the Service itself, or by posting the revised Terms on our website and revising the date at the top of these Terms. Any changes or modifications will be effective after we provide notice that these Terms have been modified. You acknowledge that your continued use of the Services following such notice constitutes your acceptance of the modified Terms.
8. 1.8 Modification of the Services. We reserve the right — at any time, and without notice or liability to you — to modify the Services, or any part of them, temporarily or permanently. We may modify the Services for a variety of reasons, including, among other things, adding new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.

2. Accessing and Using the Services

1. 2.1 Access Grant. You must be at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law to access or use our Services. You must be at least 18 years old or have your parent’s or legal guardian’s permission to purchase an offering or Subscription on Shader.  Subject to the foregoing and your continued compliance with these Terms, Shader grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the Services, solely for your own internal business purposes, for the Subscription term for which you have paid the applicable fees.  Depending on the plan you choose, you may also be subject to limitations on the number of active users who can use the Services, and/or the number of Slack workspaces and/or channels on which the Services can be active.  These details will be made clear in your plan description, or set forth in the applicable Order.
2. 2.2 Restrictions. Except as expressly authorized by these Terms, you may not: (a) modify, disclose, alter, translate or create derivative works of the Services; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any part of them); (c) offer any part of the Services on a timeshare or service bureau basis; (d) allow or permit any third party to access or use the Services; (e) use the Services to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorized manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions; (f) build a competitive product or service, or copy any features or functions of the Services (including, without limitation, the look-and-feel of the Services); (g) interfere with or disrupt the integrity or performance of the Services; (h) publicly disclose to any third party any performance information or analysis relating to the Services; (i) remove, alter or obscure any proprietary notices in or on the Services, including copyright notices; (j) use the Services or any product thereof for any illegal or unauthorized purpose, or in a manner which violates any laws or regulations in your jurisdiction; (k) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up the Services or any software, documentation, or data relating to the Services, except to the limited extent that applicable law prohibits such a restriction; or (l) cause or permit any third party to do any of the foregoing. Additionally, you agree that you will not use the Services in support of a business that is dedicated to — or focused on facilitating or encouraging — discriminatory, malicious, or harmful speech or actions. This includes, but is not limited to, hate speech and any other material that Shader reasonably believes degrades, intimidates, or incites violence against people based on gender, race, sexual orientation, age, ethnicity, disability, national origin, religion, or other protected categories.
3. 2.3 Using the Services. You must comply with these Terms, and ensure that your users do, as well. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any User Data (defined below), or the way you or your users choose to use the Services to store or process any User Data. The Services are not intended for and should not be used by anyone under the age of 18. You must ensure that all users are over 18 years old.
4. 2.4 Our Removal Rights. If we believe that there is a violation of these Terms that can simply be remedied by your removal of certain User Data, we will, in most cases, ask you to take direct action rather than intervene. However, we may directly step in, without notice or liability to you, and take what we determine to be appropriate action (including, among other things, removing certain User Data) if you do not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, your users, or any third parties.
5. 2.5 Third Party Vendors. You understand that we use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Services, and you agree that, except to the extent required by law, we are not and will not be liable or responsible for the acts or omissions of such third-party vendors or hosting partners.
6. 2.6 Registration. In order to access certain features of the Services, you will need to have a valid account on Slack or another supported collaboration service (each, a “Third Party Account”).  As part of your registration, you may be required to link your Shader account with a Third Party Account.  Such a linkage will enable us to access your Third Party Account in accordance with that third party’s applicable terms.  By giving us access to your Third Party Accounts: (a) you represent that you have the right to do so, without cost or liability to us; and (b) you acknowledge and agree that we may access, process, store, and/or use any User Data (defined below) that is visible or which you have stored on your Third Party Account for the purpose of making the Services available to you.  You acknowledge that your relationship with your Third Party Account provider(s) is governed solely by your agreement(s) with such third party service providers, and Shader specifically disclaims any liability for any User Data or other information (whether personally-identifiable or not) that may become accessible to Shader via the Services by such third party service providers as a result of any linkage to a Third Party Account.
7. 2.7 Access to the Services. You are responsible for maintaining the security of the accounts that you use to access the Services.  You agree that you will be fully responsible for any activities or transactions that take place using your account(s), even if you were not aware of them, unless those activities or transactions take place as the direct result of our gross negligence or willful misconduct.
8. 1. 2.8 Subscriptions. Shader account holders may purchase Shader PRO (the “Subscription”), a subscription fee-based program that grants access to certain options and tools within the Services, including (1) unlimited avatar generations with no need to earn credits to create, save, and share your image or video results, and (2) no brand watermark on your generated content (“Subscriber Benefits”). Subscriber Benefits may be updated from time to time by Shader at its sole discretion. You will only have access to these Subscriber Benefits while your paid Subscription is active and subsisting. You may have access to a free trial period of Services, which automatically converts to a paid annual or monthly or weekly Subscription term after a certain period of time. In such instances, you can disable the automatic conversion by following the cancellation instructions prior to the date of conversion. You may access Services in the following ways: by purchasing a Subscription from Shader’s website, within the Apps, where allowed by the App marketplace partners. Please note that if you purchase a Subscription through the Apple iTunes Store or our iPhone application, the sale is final, and we will not provide a refund. Your purchase will be subject to Apple’s applicable payment policy, which also may not provide for refunds. If you purchase a Subscription through the Google Play store, the sale is final and we will not provide a refund. Your purchase will be subject to Google’s applicable payment policy, which also may not provide for refunds. 
   2. You may access Services via a weekly or monthly or annual Subscription. For the purposes of our weekly and monthly and annual Subscription, a week constitutes 7 calendar days, a month constitutes 30 calendar days and a year constitutes 365 calendar days.
   3. Our “Weekly” Subscription is paid in weekly installments. For each week that your weekly Subscription is active, you acknowledge and agree that Shader is authorized to charge the same credit card as was used for the initial Subscription fee or other payment method as set forth in section 4.1 (the “Payment Method”). The weekly renewal Subscription fees will continue to be billed to the Payment Method you provided until cancelled. You must cancel your Subscription before it renews in order to avoid billing of the next month’s Subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-week Subscription period. 

1. Our “Monthly” Subscription is paid in monthly installments. For each month that your monthly Subscription is active, you acknowledge and agree that Shader is authorized to charge the same Payment Method as was used for the initial Subscription fee. The monthly renewal Subscription fees will continue to be billed to the Payment Method you provided until cancelled. You must cancel your Subscription before it renews in order to avoid billing of the next month’s Subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month Subscription period. By subscribing to Shader’s Monthly subscription you will receive the following benefits, as may updated from time to time by Shader at its sole discretion:
2. ‍
   • Unlimited generations; no need to earn credits to create, save, and share your image or video results.
   • No brand watermark on your content.
3. Our “Annual” Subscription is paid for by an upfront payment with automatic annual renewals. You acknowledge and agree that Shader is authorized to charge the Payment Method used for (i) the initial annual Subscription fee at the rate secured at the time of purchase, and (ii) the non-discounted renewal Subscription fee(s). You must cancel your Subscription before it renews in order to avoid billing of the renewal Subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial Subscription period.
4. Shader offers certain special discount pricing options (the “Special Discount Pricing Options”). The Special Discount Pricing Options will permit users to access to the same content included in Shader as well as unlock additional content; such Special Discount Pricing Options shall only be available to qualified users (the “Qualified Users”). To be considered a Qualified User, your information will be provided directly Shader’s third-party verification system. Shader reserves the right to determine if you are a Qualifying User in our sole discretion.
5. You agree to promptly notify Shader of any changes to the Payment Method you provided while any Subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all Subscriptions purchased by you.
6. In the course of your use of the Services, Shader and its third-party payment service provider may receive and implement updated credit card information from your credit card issuer in order to prevent your Subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to Shader and Shader’s third-party payment service provider at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer.
7. Our obligation to provide the Services only comes into being when we make them available to you and we confirm your purchase to you by email. We shall confirm your Order and send you an email to confirm your access to the Subscription purchased. Please quote the Order number in all subsequent correspondence with us. Prices in US Dollars and Euros include local taxes. All prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any Services purchased through Shader for commercial purposes.
8. 1. 1. 2.9 DEVICE REQUIREMENTS.  To enjoy Shader via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Website and the Google, Apple and Amazon App marketplaces.

3. Privacy Policy

1. Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our websites and Services.  By using the Services, you consent to our collection, use, and disclosure of information as set forth in our Privacy Policy, as we may update that Policy from time to time.

4.Payment Obligations

1. 4.1 Payment Terms. For Users that purchase our Services, fees are specified at the Services “billing” interface or in the applicable Order(s), and must be paid in advance. By providing us with your credit card information, you agree: (a) that you have the right to provide that information to us; (b) that we are authorized to charge that card for all fees due to us hereunder, and that no additional notice or consent is required; (c) that if your Services Subscription is billed based on the number of active Shader users (as determined by Shader on a pro-rata basis), we are authorized to charge your credit card for those amounts (including, as applicable, periodic true-up charges); and (d) that you will keep your credit card information up-to-date. Payment obligations are non-cancelable and, except as expressly stated in these Terms, fees paid are non-refundable. For clarity, in the event you downgrade any Subscription from a paid plan to a free plan, you will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan Subscription term.  If we agree to invoice you by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You will be responsible for paying all Taxes associated with your purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.  You agree to make all payments in U.S. Dollars, unless the Order indicates otherwise.
2. 4.2 Credits. Depending on your Services Subscription plan, you may receive credits for overages paid in prior months.  You understand and agree that any credits that may accrue to your account will expire following expiration or termination of the applicable Subscription, will have no currency or exchange value, and will not be transferable or refundable.
3. 4.3 Interest on Late Payments and Downgrade for Non-Payment. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date the amount is due until the date the amount is paid in full. If you are late in paying us, you also agree that, in addition to our rights to suspend your access to the Services, terminate your account(s), downgrade you to a free plan, and/or pursue any other rights or remedies available to us at law or in equity, you are responsible to reimburse us for any costs that we incur while attempting to collect such late payments.  User acknowledges and agrees that any downgrade to a free plan may result in a decrease in certain features and functionality, and potential loss of access to User Data, and that we do not accept any liability for such loss.

5. Our Responsibilities

1. 5.1 Protecting User Data. The protection of User Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described in our Privacy Policy, which is incorporated into these Terms by this reference. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of User Data by our personnel. Before sharing User Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of User Data and preventing unauthorized access. User (not us) bears sole responsibility for adequate security, protection and backup of User Data when in User’s or its representatives’ or agents’ possession or control. We are not responsible for what User’s users do with User Data, or what any other third party applications do with User Data — that is User’s responsibility.
2. 5.2 Shader Representatives. We may leverage our employees, those of our corporate affiliates and third party contractors (the “Shader Representatives”) in exercising our rights and performing our obligations under these Terms. We will be responsible for the Shader Representatives’ compliance with our obligations under these Terms.

6. Ownership and Proprietary Rights

1. 6.1 User Data. As between us on the one hand, and User on the other, User will own all data, material, or other content that User or its users make available or upload to the Services or to which we gain access via your Third Party Accounts (collectively, the “User Data”). User grants us a worldwide, non-exclusive, royalty-free, limited term license to access, use, process, copy, perform, export and display User Data, as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the DPA; or (d) as expressly permitted in writing by User. User represents and warrants that: (i) it has secured all rights in and to User Data as may be necessary to grant this license; (ii) the User Data it or any user submits to the Services does not and will not infringe upon the intellectual property rights of any third party; (iii) the User Data it or any user submits to the Services does not and will not contain any “sensitive” personal data or “personal health information”, as defined by applicable laws, unless you have signed a separate written agreement with us relating to the processing of such data.  User acknowledges that it is entirely responsible for User Data, and for any harm or liability resulting from or arising out of User Data — this responsibility applies whether or not you were the original creator of the User Data.
2. 6.2 Shader Services. We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to User a non-sublicensable, non-transferable, non-exclusive, limited license for User to use the object code version of these components, but solely as necessary to use the Services and in accordance with these Terms. All of our rights not expressly granted by this license are hereby retained.
3. 6.3 Usage Data. We will collect general information about your configuration and use of the Services (collectively, “Usage Data”) as part of our efforts to continuously improve our Services, and you agree that we have the right to collect and use Usage Data for that purpose.
4. 6.4 Aggregated or Anonymized Data. You acknowledge that we have the right to collect, use, and share data that has been aggregated or anonymized (so that it does not directly or indirectly identify you or your users) for the purpose of developing new services and features, as well as promoting our products and Services through, for example, publishing analyses of general patterns and trends.

7. Term and Termination

1. 7.1 Term. These Terms will apply to you beginning on the Effective Date, and will continue for as long as you are accessing or using our website or any of our Services.  As further described below, a free Subscription continues until terminated, while a paid Subscription has a term that may expire or be terminated. These Terms remain effective until all Subscriptions ordered have expired or been terminated, or the Terms themselves are terminated. Termination of these Terms will terminate all Subscriptions and all Orders.
2. 7.2 Auto-Renewal. Unless an Order says otherwise, all Subscriptions automatically renew (without the need to execute a renewal Order) for additional Subscription terms of equivalent length, unless one party gives written notice to the other at least thirty (30) days before the end of that Subscription term that it does not want the term to renew.  We reserve the right to modify the fees for the Services at any time upon thirty (30) days’ prior notice to you, provided that the modified fees will not apply until the next renewal term.
3. 7.3 Suspension. We, in our sole discretion, have the right to suspend your ability to use and/or access the Services, without liability, under the following circumstances: (a) for scheduled or emergency maintenance to the Services; (b) if we believe that you are using the Services in violation of these Terms or applicable law; (c) if we believe that your use of the Services poses a security risk to us or to any third party; (d) if required by law enforcement or government agency, or otherwise in order to comply with applicable law or regulation; or (e) if you fail to fulfill your payment obligations.
4. 7.4 Termination for Cause. Either party may terminate these Terms upon notice to the other party if the other party breaches any of these Terms and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. User is responsible for the acts and omissions of its users, including for any breaches of these Terms by its users. We may terminate these Terms immediately upon notice to you if we reasonably believe that you are in breach of any of these Terms relating to our intellectual property or our Confidential Information (defined below).
5. 7.5 Termination Without Cause. User may terminate its free Subscriptions immediately without cause. We may also terminate User’s free Subscriptions without cause, but we will provide User with thirty (30) days prior written notice.
6. 7.6 Effect of Termination. Upon any termination for cause by User, we will refund User any prepaid fees covering the remainder of the term of all Subscriptions after the effective date of termination. Upon any termination for cause by us, User will pay any unpaid fees covering the remainder of the term of those Subscriptions after the effective date of termination. In no event will any termination relieve User of the obligation to pay any fees payable to us for the period prior to the effective date of termination.  When these Terms terminate or expire: (a) you will no longer have the right to access or use the Services; (b) you will ensure that the Services no longer integrate with your Slack workspace; and (c) unless otherwise set forth in the DPA or in accordance with applicable law, we may delete all User Data in our systems or otherwise in our possession or under our control.  You acknowledge that, so long as the Services remain integrated with your Slack workspace, we will have access to User Data, and we will not be liable or responsible to you with respect to our treatment, storage, or use of any User Data if you fail to dis-integrate the Services from your Slack workspace following the expiration or termination of these Terms.
7. 7.7 Survival. Sections 1.2, 1.6, 2.2, 2.4, 4, 6, 7.6, 7.7, and 8 through 13 will survive the termination or expiration of these Terms for any reason.

8. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. User ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

9. Indemnity

You agree, at your sole expense, to defend, indemnify and hold Shader, its affiliates, directors, officers, employees, consultants, agents, and any Shader Representatives from and against any and all actual or threatened suits, actions, proceedings (whether at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of or relating to (a) User Data; (b) your use of the Services; (c) your failure to pay any taxes that you owe under these Terms; and (d) any other actual or alleged breach of any of your obligations under these Terms. You will not settle any such claim in any manner that would require Shader to pay money or admit wrongdoing of any kind without our prior written consent, which we may withhold in our sole discretion.

10. Limitation of Liability

IN NO EVENT WILL SHADER’S TOTAL, AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) ANY PART OF THE SERVICES EXCEED THE GREATER OF $100 USD OR THE TOTAL AMOUNT YOU ACTUALLY PAID TO SHADER IN SUBSCRIPTION FEES FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.

IN NO EVENT WILL SHADER BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS OR YOUR USE (OR INABILITY TO USE) ANY PART OF THE SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SHADER HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under these Terms between the parties, and the parties have relied on these limitations in determining whether to enter into these Terms and the pricing for the Services.  This “Limitation of Liability” section will be given full effect even if any remedy specified in these Terms is deemed to have failed of its essential purpose.

11. Confidentiality

1. 11.1 Confidential Information. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with these Terms, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (including all Orders), as well as non-public business, product, technology and marketing information. Confidential Information of User includes User Data, while Confidential Information of Shader includes any non-public elements of the Services. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. For the sake of clarity, we will always treat your Slack message content as your Confidential Information. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
2. 11.2 Protection and Use of Confidential Information. The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with these Terms; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in these Terms.
3. 11.3 Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the DPA for details on how requests may be made for the disclosure of User Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

12 Dispute Resolution and Arbitration.

Please read this Section 12 carefully. It requires you to arbitrate disputes with us, and limits the manner in which you can seek relief from us.

All disputes arising out of or in connection with these Terms, including without limitation your access or use of the Services, will be referred to and finally resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association. Each party will cover its own fees and costs associated with the arbitration proceedings; however, if the arbitrator finds that you cannot afford to pay the fees and costs reasonably associated with the arbitration proceedings, Shader will pay them for you. The place of arbitration will be New York, NY. You may choose to have the arbitration conducted by telephone, based on written submissions. The language of the arbitration will be English. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, Shader may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by Shadert hrough injunctive relief and other equitable remedies without proof of monetary damages.

WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE SERVICES: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

13 Miscellaneous

1. 13.1 Force Majeure. Except for payments due under these Terms, Shader will not be responsible for any delay or failure to perform that is attributable in whole or in part to any cause beyond its reasonable control, including, without limitation, acts of God (fire, storm, floods, earthquakes, etc.); civil disturbances; pandemic; disruption of telecommunications, power or other essential services; interruption or termination of service by any service providers used by Shader to host the Services or to link its servers to the Internet; labor disturbances; vandalism; cable cut; computer viruses or other similar occurrences; or any malicious or unlawful acts of any third party.  For the sake of clarity, Shader will not be responsible for any delay or failure under these Terms (or in the Services themselves) that is attributable to any act or omission of any third party.
2. 13.2 Email. Except as otherwise set forth herein, all notices under these Terms will be by email, although we may instead choose to provide notice to you through the Services. Notices to Shader will be sent team@shader.com, except for legal notices, such as notices of termination or any claim of breach, which must be sent to team@shader.com with a copy to Shader, Inc., 719 N Formosa Ave, Los Angeles, CA, 90046.  Notices will be deemed to have been duly given (a) the day after they are sent, in the case of notices through email; and (b) the same day, in the case of notices sent through the Services.
3. 13.3 Trademarks. You acknowledge and agree that any Shader names, trademarks, service marks, logos, trade dress, or other branding included on our website or as part of the Services (collectively, the “Marks”) are owned by Shader and may not be copied, imitated, or used (in whole or in part) without Shader’s prior written consent. All other trademarks, names, or logos referenced on our website or the Services (collectively, “Third-Party Trademarks”) are the property of their respective owners, and the use of such Third-Party Trademarks inure to the benefit of their respective owners. The use of such Third-Party Trademarks is intended to denote interoperability, and does not constitute an affiliation by Shader or its licensors with any company or an endorsement or approval by that company of Shader, its licensors, or their respective products or Services.
4. 13.4 Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
5. 13.5 Severability. These Terms will be enforced to the fullest extent permitted under applicable law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
6. 13.6 Assignment. You may not assign these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of Shader, and any attempted transfer, assignment or delegation without such consent will be void and of no effect. Shader may freely transfer, assign or delegate these Terms, or its rights and duties under these Terms, without notice to you. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
7. 13.7 Governing Law and Venue. These Terms, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of New York, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (which are both hereby expressly disclaimed). To the extent that the arbitration requirements in Section 12 do not apply for any reason: (i) the courts located in New York, NY will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms or its formation, interpretation or enforcement, and each party hereby consents and submits to the exclusive jurisdiction of such courts; and (ii) in any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
8. 13.8 Compliance with Laws. You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of the Services.
9. 13.9 Entire Agreement. These Terms, together with any policies incorporated into these Terms by reference, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (including, without limitation, prior superseded versions of these Terms). Any terms or conditions that you send to Shader that are inconsistent with or in addition to these Terms are hereby rejected by Shader, and will be deemed void and of no effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User purchase order, vendor onboarding process or web portal, or any other User order documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void.  Except as expressly set forth in these Terms, the exercise by either party of its remedies will be without prejudice to its other remedies, whether under these Terms or otherwise.