TERMS of SERVICE

SHAPE Terms of Service

SHAPE Global Ltd (SHAPE) is a service provider and consulting firm to businesses globally. We trust that our SHAPE Service is used for legal and respectful purposes. While using our sites and services, you agree to abide by these Terms of Service (Terms), which may be updated from time to time as explained in Section 14. We encourage you to review them regularly to ensure your compliance. These Terms are presented in English language. If any translated versions conflict with this version of the Terms, this is deemed the correct and default version.

  1. Interpretation

    The following words and phrases shall have the following meaning:

    "Business Purposes"

    means purposes normally or otherwise reasonably associated with general research, analysis, evaluation, training, design, development, resolution and advancement of SHAPE

    "Client"

    means the entity (almost always an organisation) that purchases SHAPE

    "Client Account"

    means the administrative SHAPE account with extensive privileges in control of the Client's Contact Person

    "Client User"

    means your employee or other personnel who has been issued with an individual password to register a valid profile with SHAPE)

    "Contact Person"

    means the Client User who is the nominated representative of the Client and acts as main point of access to the “Client Account” and Service management

    "Qualified Recipients"

    Means those Client Users who during their use of the Service or website have authorised reporting of selected PII to other Client Users

    "Reported Data"

    means Client User responses, SHAPE reports, and any personally identifiable information (PII) input or generated on behalf of usage of the Service or website

    "Service"

    means the SHAPE Service provided to the Client

    "Service Data"

    means anonymised Client data that does not include personally identifiable information (PII)

    "Master Service Agreement"

    means the over-arching master contract executed between the Client and SHAPE

  2. Agreement to Terms

    Please read these Terms carefully before accessing the SHAPE Service (“Service”) at www.mysha.pe. The Terms are a binding, legal agreement between you and SHAPE, and govern your right to use SHAPE and its resources and assets. SHAPE controls this website and any other related company or service websites (collectively, the "website"). These Terms come into effect upon clicking an "I Accept", "I Understand" or other button that indicates acceptance while browsing the website or registering with SHAPE. You accept that you are of legal age to make a contract. If you accept these Terms for an entity, such as your employer, you accept that the entity is bound by these Terms. For purposes of these Terms, “you” means you, the entity you represent, your “Contact Person”, your employees or representatives, and anyone accessing SHAPE by any method on your behalf (also collectively, the "Client"). YOU MAY NOT PROCEED TO USE THE SERVICE IF YOU OBJECT TO THESE TERMS IN THEIR ENTIRETY OR PART THEREOF, AND DO NOT AGREE TO BE BOUND BY THEM.

  3. Description of Service
    1. SHAPE ("we", "our", or "us") provides a proprietary survey and actionable results-based Service accessed by the Client using a web browser and the internet.

    2. The Service is specified in a valid “Master Service Agreement” executed by the Client and SHAPE and is purchased as a standalone 1-year agreement or on an annual or multi-year basis as set forth in the Agreement.

    3. The Client is responsible for choosing and providing the email of their "Contact Person". The Contact Person is the main point of access to the "Client Account" and Service management. The Client agrees to all features, functions and privileges afforded to the Contact Person as part of the Service.

    4. The Client is responsible for providing Service access to Client Users. If you require SHAPE to perform this function on your behalf, you agree to provide us with electronic mailing lists and any other information that is required in fulfilling this purpose.

    5. For the purpose of these Terms, "Reported Data" encompasses all Client User responses, SHAPE reports, and any other information input or generated on behalf of your usage of the Service or website.

    6. The duration of the Service may be affected by a variety of factors, such as the survey participation rates and your efforts in generating awareness directed at Client Users to complete the survey. SHAPE is therefore only able to provide estimated timescales related to survey completion and the publishing of results. You accept that an agreed period or end date for reporting is not a strict deadline unless explicitly agreed.

    7. SHAPE reserves the right to make any changes or corrections to these Terms as and when it considers it appropriate and without notice.

  4. Fees
    1. Your payment details and applicable payment terms shall be specified in the Master Service Agreement, available upon request.

    2. SHAPE may impose any applicable governmental sales, GST, use, value-added, commodity or other surcharges/taxes on the supply of the Service as required by national or international regulations dependent on your location. To the extent SHAPE is required to collect such taxes, the applicable tax shall be added to your billing account as specified in the Master Service Agreement.

    3. Failure to abide by payment terms in the Master Service Agreement shall result in delay in Service launch and/or revoked access to SHAPE reports and support activities.

    4. SHAPE reserves the right to legal recourse to recover unpaid payments as per the applicable payment terms stipulated in the Master Service Agreement, including all reasonable court and out-of-court costs that we may incur as a result of recovering these unpaid payments.

  5. Client Data
    1. Rights and confidentiality

      1. You own all rights, title and interest in and to all of your Reported Data. Except as stated in the following clause, Reported Data is confidential and shall only be used by SHAPE to fulfil its obligations of generating and delivering reports to "Qualified Recipients".

      2. SHAPE shall own all right, title, and interest in anonymised data (the "Service Data"). Service Data shall not include PII. You grant SHAPE a non-exclusive, worldwide, royalty-free, fully-paid up, perpetual and irrevocable license to access and use Service Data for normative research, analysis and product improvement purposes.

      3. SHAPE agrees that your Reported Data and Service Data shall only be used for the purposes set forth in the aforementioned clauses. The access license to all data granted to SHAPE pursuant to this clause shall be coterminous with these Terms; the use license granted to SHAPE pursuant to this clause shall survive any termination or expiration of these Terms.

    2. Data protection

      1. Reported Data and Service Data shall be collected, used, stored and disclosed confidentially and in accordance with the General Data Protection Regulation (GDPR), EU-US and Swiss-US Privacy Shield Frameworks, Privacy Act and its Australian Privacy Principles (APP), and all other applicable privacy legislations.

      2. Reported Data shall not be disclosed unless required to do so by law or if disclosure is reasonably necessary to administer various features of the Service.

      3. Unless stated otherwise, SHAPE shall store Reported Data in non-pseudonymised and/or non-anonymised format for two (2) years after termination of the Master Service Agreement. At the end of this period SHAPE shall anonymise this data (Service Data) for its own business purposes pursuant to clause 5.1.2.

  6. Use of Service
    1. The Service is designed to be used through a supported modern web browser and an internet connection. You accept we are not responsible for the correct rendering of website on all web browsers.

    2. Subject to these Terms, SHAPE grants you a limited, commercial, non-transferable, non-exclusive license, without the right to grant sublicenses, to SHAPE and applicable assets as set forth therein and solely for your internal business operations.

    3. The Client undertakes and agrees that the maximum number of Client Users that it authorises to access and use the Service and assets shall not exceed the total number of Client Users paid for in the Master Service Agreement.

    4. SHAPE grants you the right to extend Service privileges to contractors and/or consultants provided the total aggregate number of Client Users does not exceed the total number of Client Users in the Master Service Agreement.

    5. You are responsible for ensuring that all contractors and consultants adhere to these Terms. No contractors and/or consultants shall have any right to rely upon or enforce any clause of these Terms.

    6. Client Users are responsible for maintaining the confidentiality of information they hold for their profiles including passwords, and for any and all activity that occurs in their profile as a result of failing to keep their information secure and confidential.

    7. You agree to secure Client User profiles from any unlawful and unauthorised access and agree to notify SHAPE immediately of any unauthorised use of any profile or password, or any other breach of security.

    8. In the event that a Client User leaves the company and you do not wish for their data to be processed as part of Reported Data, you shall notify us within seven (7) working days, so we may close the Client User profile. Any irregularity in Reported Data on behalf of such Client Users shall not be SHAPE's responsibility.

    9. You accept that all resources, content and marketing assets provided with the Service and any Service-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by you to SHAPE are the exclusive property of SHAPE.

    10. Upon request by SHAPE, you shall provide us with all information we reasonably request in a timely manner to investigate and reproduce any errors you report.

    11. We may suspend the Client Account or any User profile at any time without notice for conduct that violates these Terms.

    12. You accept that you shall not, without the express prior written permission of SHAPE, copy, reproduce, distribute, publish, display, perform, modify, create derivative works from, transmit, or in any way commercially exploit the Service, or use the Service or any resources and assets in or as part of any commercial offering, database or compilation, or transfer or sell or offer to transfer or sell any of the resources and assets; and

    13. You accept that you or your third parties shall not decompile, disassemble or otherwise reverse engineer any pieces of SHAPE; and

    14. You accept that you or your third parties shall not access or utilise all or any part of the Service and its resources and assets in order to build a similar or competitive service, application, or content based on the resources and assets.

    15. All trademarks, service marks, trade names, trade dress, and products displayed on the Service are protected in Australia and internationally, and are either owned or used under license by SHAPE. The unauthorised use of any Service trademark is strictly prohibited, and nothing contained on the Service may be construed as granting, by implication, estoppels, or otherwise, any right or license to use any trademark.

  7. Obligations of the Client
    1. You accept that you shall ensure that all data and documents, which SHAPE believes are necessary for the correct and punctual execution of the Service and Master Service Agreement, are made available on time and completely. This also applies to ensuring the availability of your Contact Person and necessary employees from your organisation who are or shall be involved in administrating SHAPE's activities.

    2. You represent and warrant that your access or use of the Service complies with all applicable laws, rules and regulations with respect to your activities under these Terms.

    3. You shall ensure that Client Users consume the Service, related assets and resources in accordance with these Terms and that you shall be responsible for any Client User's breach of them.

    4. You shall ensure that your network and systems comply with the relevant specifications provided by SHAPE from time to time.

    5. You accept that you are responsible for your own network security and maintaining accessibility from your systems to SHAPE's systems. SHAPE is not responsible for problems, delays or loss on account of network connection not within its reasonable control or caused by the internet.

    6. You shall carry out all other Client responsibilities set out in these Terms in a well-timed and best endeavours professional manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, SHAPE may adjust any agreed timetable or schedule as reasonably necessary.

  8. Confidentiality
    1. Client's responsibilities

      1. You accept that all communications between SHAPE and you including sales conversations, marketing and strategies, whether delivered via written (email or paper based communications) and oral information, whether marked confidential or not, shall be deemed confidential and may not be disclosed in whole or in part, to any third party except (i) with the express prior written consent of SHAPE, (ii) as may be required in response to any summons, subpoena, or discovery order or to comply with any applicable law, order, regulation or ruling, or (iii) to your attorneys or accountants or to such of your directors, managers, officers, employees, advisors and representatives who have a need to know in connection with the performance of these Terms and who have been advised of the restrictions on disclosure provided herein.

      2. You shall protect the confidentiality and security of all confidential information by applying best industry, governance and technology practices as you would apply to your own confidential information.

      3. By providing your Contact Person's email address, you agree that this email address shall be used for the suitable execution of the Service and for receiving news and other information from SHAPE that supports in the optimal performance of the Service.

      4. You shall notify SHAPE immediately in the event that you learn of any unauthorised access to confidential information. You agree to return or destroy any confidential information on the request of SHAPE.

      5. The above confidentiality obligations do not apply to information that has become public knowledge through no fault of the Client or is required to be disclosed by law or valid court order.

    2. SHAPE's responsibilities

      1. We are obliged to observe confidentiality vis-à-vis third parties in respect of all information and details relating to the Client, as well as results from research.

      2. SHAPE's Privacy Policy is available on this website and is incorporated by reference in these Terms. By accessing and using this website and Service, you agree to the terms of SHAPE 's Privacy Policy. You should read the Privacy Policy carefully.

  9. Indemnity
    1. As is legally permissible, you agree to indemnify and hold us harmless against any and all claims and expenses, including reasonable attorneys' fees, resulting from the consumption of the Service.

    2. SHAPE at its own expense shall defend any action brought against you to the extent that it is based on a claim that its Service infringes any patents, copyrights, license or other property right, provided that SHAPE is immediately notified in writing of such claim. SHAPE shall have the right to control the defence of all such claims, lawsuits and other proceedings. You may not settle any such claim, lawsuit or proceeding without SHAPE 's prior, written approval.

    3. You shall retain responsibility for any and all liabilities pertaining to the violation or breach of copyrights, trademarks and the use of any illegal or defamatory information contained within your Reported Data and Service Data that originated from your Client Users.

  10. Termination
    1. If you are found in violation of these Terms or in the event of force majeure as defined herein, you agree that SHAPE reserves the right to terminate your use of the Service at any time, without notice.

    2. Upon notice of termination by SHAPE, you agree to stop using the Service and shall forfeit all payments made until the date of termination.

    3. Either party may terminate all agreements prematurely within a thirty (30) day notice period, whilst still observing the surviving clauses, and SHAPE retains the right to reimbursement of damages as outlined in clause 10.4.4 if and as soon as one of the following circumstances occurs:

      1. one of the parties is stated bankrupt or actively files a petition for bankruptcy which is not withdrawn or revoked for a period of fourteen (14) days; or

      2. the Client is granted a suspension or freeze on payments: or

      3. company dissolution of either party occurs; or

      4. if the Company is in material breach of any of its representations, warranties or covenants hereunder; or

      5. if the Client shall have become aware after the date hereof of such a material adverse change in the conditions or prospects of the Client company as in the Client judgment would make it impracticable to proceed with Service delivery.

    4. Premature termination by Client

      1. Unless agreed otherwise, the Master Service Agreement may not be terminated by the Client prematurely prior to the publishing of results.

      2. You must give SHAPE a notice period of thirty (30) days before terminating the Master Service Agreement.

      3. Premature termination shall lead to forfeit of all payments made until the date of termination.

      4. Upon SHAPE's request you shall pay to SHAPE all outstanding fees due up to and including the effective date of termination within thirty (30) days. This may also include a termination fee and reimbursement of any expenses reasonably incurred by SHAPE due to the premature termination, as outlined in the Master Service Agreement.

  11. Force majeure
    1. Neither party shall be liable for failure of delay in performing obligations set forth in these Terms, nor shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any other causes reasonably beyond the control of either party, including compliance with any law or governmental order.

    2. During a force majeure event SHAPE delivery and obligations shall be suspended. Where SHAPE is the affected party, it shall take all steps in accordance with good industry practices to overcome or minimise the consequences of the force majeure event to facilitate the continued performance of the Master Service Agreement.

    3. If a period of force majeure lasts longer than two (2) months and prevents SHAPE from carrying out its obligations, then either party shall be authorised to terminate the Master Service Agreement without any debt or damages owed.

    4. SHAPE is entitled to payment for partial obligations fulfilled at the time of force majeure and/or obligations that can still be fulfilled separately. The Client shall remain liable for independent payment and shall pay upon request of a furnished invoice.

  12. Warranties
    1. SHAPE represents and warrants that when installed, all operational features of SHAPE shall endeavour to conform to SHAPE's current published specifications and shall be free of defects which substantially affect system performance. Furthermore, SHAPE represents and warrants that it has taken all necessary precautions to avoid creating, delivering or transmitting a virus to you in connection with the delivery, configuration, support of SHAPE including any updates, bug fixes, patches, or other code, under these Terms.

    2. SHAPE shall ensure that SHAPE is in compliance with all applicable country and state laws, rules and regulations. You must notify SHAPE in writing of any suspected non-compliance issue and SHAPE shall respond within thirty (30) days.

    3. If SHAPE is determined by SHAPE to be defective, SHAPE's sole obligation under these Terms is to remedy such defect in a manner consistent with SHAPE's regular business practices. In the event that SHAPE is unable to remedy such defect within a reasonable amount of time, SHAPE may terminate agreements it has with you by providing written notice to you.

    4. WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES MADE BY SHAPE. SHAPE MAKES AND YOU RECEIVE NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES ARE MADE REGARDING THE RESULTS OBTAINED FROM SHAPE SOFTWARE MODULE(S), THAT ALL ERRORS IN SHAPE SOFTWARE MODULE(S) SHALL BE CORRECTED, OR THAT THE FUNCTIONALITY OF SHAPE SOFTWARE MODULE(S) SHALL MEET YOUR REQUIREMENTS.

    5. SHAPE SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THESE TERMS FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS SUCH LIABILITY IS THE RESULT OF NEGLIGENCE OR MISCONDUCT BY SHAPE, THESE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SHAPE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF SHAPE SOFTWARE MODULE(S).

    6. SHAPE IS NOT ENGAGED IN RENDERING MEDICAL, CLINICAL OR OTHER PROFESSIONAL SERVICES OR ADVICE. IF MEDICAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS MADE OR ADVICE GIVEN AS A RESULT OF THE USE OF SHAPE SOFTWARE MODULE(S), AND FOR THE SELECTION OF SHAPE SOFTWARE MODULE(S) TO ACHIEVE YOUR INTENDED RESULTS.

    7. YOU AGREE THAT SHAPE'S LIABILITY IN CONNECTION WITH SHAPE SOFTWARE MODULE(S), WHETHER ARISING IN CONTRACT, STRICT LIABILITY IN TORT, OR WARRANTY SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO SHAPE IN CONNECTION WITH YOUR USE OF OR ACCESS TO SHAPE. SHAPE SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM YOUR USE OF SHAPE INCLUDING BUT NOT LIMITED TO YOUR DISTRIBUTION OF REPORTS TO REGISTERED OR UNREGISTERED USERS OF THE WEBSITE.

    8. Notwithstanding anything in these Terms to the contrary, the limitation of liability shall not apply to losses, damages, or causes of action related to: (i) SHAPE's obligation to indemnify you as provided per these Terms; (ii) breach of confidentiality; (iii) violation of law by SHAPE or an agent or employee of SHAPE; or (iv) gross negligence or wilful misconduct by SHAPE or an agent or employee of SHAPE.

    9. SHAPE IS NOT AN INSURER WITH REGARD TO THE PERFORMANCE OF SHAPE SOFTWARE MODULE(S). THE LIMITATIONS OF WARRANTIES, LIABILITIES AND REMEDIES ARE A REFLECTION OF THE RISKS YOU ASSUME IN ORDER TO USE SHAPE SOFTWARE MODULE(S).

  13. Limitation of Liabilities
    1. THE USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL SHAPE, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, BE LIABLE TO ANY USER OF THIS SERVICE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE OR DATA, OR OTHER LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THIS SERVICE OR ANY CONTENT CONTAINED THEREON, WHETHER BASED UPON WARRANTY, NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SHAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

    2. 13.2. SHAPE IS INTENDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND DOES NOT PROVIDE MEDICAL ADVICE OR DIAGNOSIS OF ANY KIND. YOUR HEALTH IMPACTS YOUR WORK PERFORMANCE. FOR THIS PURPOSE WE COLLECT INFORMATION ABOUT YOUR HEALTH CONDITIONS. THE INFORMATION AND/OR RECOMMENDATIONS PROVIDED ON THIS SITE ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. NEVER IGNORE PROFESSIONAL MEDICAL ADVICE DUE TO INFORMATION YOU READ ON THIS SITE. SHAPE EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND SHALL HAVE NO LIABILITY FOR ANY DAMAGES, LOSSES OR INJURY SUFFERED AS A RESULT OF RELIANCE ON THE INFORMATION CONTAINED IN THIS SITE.

  14. Entire agreement
    1. These Terms, the Privacy Policy, and the Master Service Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings of the parties, whether written or oral, with respect to the subject matter.

    2. In the event of a conflict between any provision set forth in these Terms, the relevant portion of these Terms shall govern. Any pre-printed or other standard terms set forth on any customer order, acknowledgement or other form shall be deemed void and of no force or effect.

    3. No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

    4. Modifications to these Terms

      1. SHAPE may modify or update these Terms at any time by posting an amended version on this website (www.mysha.pe) or by emailing your Contact Person.

      2. The modified Terms shall become effective upon posting to website or emailing, whichever is earlier.

      3. You agree to be bound by the modified Terms if you use the Service after the effective date of modification.

      4. You are responsible for checking this website regularly for any updates. The date listed at the end of these Terms denotes date of last modification.

  15. Notices
    1. A notice or other communication connected with these Terms has no legal effect unless it is in writing and emailed to your Contact Person.

    2. We shall deem delivery of a notice upon sending of an email. Copies of all communications shall be retained.

    3. Digital signatures shall prevail and be deemed legally acceptable.

  16. Governing law and jurisdiction
    1. The Terms are to be construed in accordance with the substantive laws of England for corporations registered in UK and globally, except New South Wales, Australia for corporations registered in the Australia and New Zealand, without regard to conflict of laws principles.

    2. The venue as to any action arising out of the subject matter hereof shall be in any court of competent jurisdiction in the city of London, UK for UK/global corporations and the city of Sydney, New South Wales, for Australia/New Zealand corporations.

    3. The Client irrevocably consents to the personal jurisdiction of such courts and waives all objections thereto.

  17. Severability
    1. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, invalid or illegal, it shall be severed, and the remainder of the Terms shall remain in full force and effect.

  18. Waiver
    1. No waiver of any clause, provision or condition of these Terms (whether by conduct or otherwise) in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such clause, provision or condition of these Terms.

  19. Proprietary rights
    1. The Service and all related resources and assets are proprietary to SHAPE and all rights, title and interests thereto shall remain with SHAPE.

    2. All applicable rights to patents, copyrights, trademarks and trade secrets in the Service and related resources and assets, or any modifications made at your request, shall be regarded as SHAPE intellectual property.

    3. You may not sell, transfer, sublicense, publish, disclose, display or otherwise make available the Service or related resources or assets (or copies thereof) to others. All copies made by you of the Service and related resources and assets, and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of SHAPE.

    4. Violation of any provision of the clauses above shall be the basis for immediate termination of the Master Service Agreement and the license(s) granted hereunder.

  20. Rights and remedies
    1. 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 and remedies SHAPE may have at law or in equity.

Revised Feb 2021