Shotgun Terms of Service
Updated: June 27, 2014
By using the Shotgun Platform, including Toolkit, Screening Room or any other plugin or application (“Service”), all services of Shotgun Software, Inc. (“Shotgun”), you (“Customer”, “You” or “Your”) on behalf of yourself (if You are using the Service as an individual) or the company you represent (if You are using the Service as a company), agree to be bound by the following terms and conditions (“Terms of Service”). Any new features that augment or enhance the Service, including the release of new tools and resources, shall be subject to the Terms of Service.
By clicking the “I Agree” button (or other button or mechanism designed to acknowledge agreement), or by using the Service, You (i) are indicating that You have read these Terms of Service, understand them, and agree to be legally bound to them; and (ii) You represent and warrant that You have the right, power and authority to act on behalf of and bind Your company (if any) or yourself (if there is no such entity). A contract is then formed between Shotgun and You. If You do not agree to all of these terms or You do not have the right, power and authority to legally bind Your company or yourself, then (A) do not click “I Agree”, “Set up my site”, or other acceptance mechanism; and (B) You are not permitted to access or use the Service; however, any unauthorized use or access by You still constitutes agreement and consent to these Terms of Service.
Use Of The Service
You understand that Service may contain bugs. You understand and accept that there are risks involved in using Service and that managing these risks are Your responsibility.
Except as otherwise specifically authorized by Shotgun, You may permit the Service to be accessed and used by Your individual employees and Your consultants, contractors, customers, agents and others with whom you conduct business for whom You have provided logins and who access and use the Service only for Your benefit or as part of Your project (“Your Personnel”), and any such access and use will be subject to any other requirements imposed by Shotgun, including but not limited to in these Terms of Service. You will be responsible for compliance with these Terms of Service by Your Personnel and any other persons who may have access to the Service through You (whether or not such access is authorized by Shotgun or within the scope of permitted use).
- During the term of free use of the Service, as indicated by Shotgun (“Evaluation Period”), You are provided access to the Shotgun trial site via an email with login details within 24 hours of requesting a trial, and are notified a week prior to the end of the free trial and on the last day that You must make payment to continue using the Service. You shall:
- use the Service for evaluation purposes only;
- have no obligation to purchase the Service; and
- comply with all of these Terms of Service.
- Your use rights under these Terms of Service shall terminate at the end of the Evaluation Period.
- If You do not elect to purchase the Service from Shotgun after the Evaluation Period, Your and Your Personnel’s right to access the Service shall terminate.
- Each end user will be required to maintain their own account, along with a unique user ID and password, to use the Service (“Account”). You and Your Personnel are responsible for maintaining the security of your respective Account, including the user ID and password. You agree that You and Your Personnel will not share any user IDs or passwords, allow anyone else access to your respective Account, nor do anything else that might jeopardize the security of your respective Account. Shotgun cannot and will not be liable for any loss or damage from Your failure, or the failure of Your Personnel, to comply with this security obligation.
- You are responsible for Your Content (defined below) and activity that occurs under Your Account. By creating, submitting, posting, developing or otherwise making available Your Content using the Service, You acknowledge and agree that: (a) You will evaluate and bear all risks associated with Your Content; (b) under no circumstances will Shotgun be liable in any way for Your Content, including, but not limited to, any loss or damage, any errors or omissions, or any unauthorized access or use; and (c) You (and not Shotgun) are responsible for protecting the security and confidentiality of Your Content. You are encouraged to maintain copies on Your own computer or local network and to use the latest encryption and other security technology to protect Your Content.
- You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in Your jurisdiction.
- Violation of any of these Terms of Service will result in the termination of Your Account. You agree to use the Service at Your own risk.
Payment and Taxes
- Payment terms are as stated on Your invoice, in Your Account or in other transaction documentation.
- All fees are exclusive of taxes, levies, or duties imposed by taxing authorities. The Service offered by Shotgun does not include any tangible goods, nor is the Service ever delivered by means of any tangible media.
Term, Cancellation and Termination
- These Terms of Service shall become effective on the date You first agree to them by indicating that you have read and agree to these terms or, if earlier, the date You first access or use the Service, and shall continue until they terminate or expire. Unless earlier terminated in accordance with this Section, these Terms of Service shall automatically terminate on the date or end of the term of the Service identified by Shotgun.
- You are solely responsible for properly canceling Your Account. For paid accounts and free evaluations, if You wish to preserve Your Content, You are solely responsible for exporting / archiving such Content from the Service to your local storage media, prior to cancellation or end of evaluation. All of Your Content will be deleted from the Service after expiration or cancellation (including at the end of an Evaluation Period).
- Shotgun, in its sole discretion, has the right to terminate these Terms of Service and refuse any and all current or future use of the Service by You, or any other Shotgun service, for any reason at any time, with two weeks notice. Shotgun also may suspend or terminate Your Account and access to the Service at any time without notice to You (a) during an Evaluation Period, or (b) in the event of any breach or potential breach of these Terms of Service that is likely to result in material harm to Shotgun or to the Service. Termination or expiration of these Terms of Service will result in the deactivation or deletion of Your Account and Content.
- You may cancel the Service at any time from Your billing and accounts center, found at https://account.shotgunsoftware.com/login or by giving notice to Shotgun.
- Without limiting Sections 3 or 4 above, each of Shotgun or You may terminate these Terms of Service if the other party is in breach and fails to cure such breach within ten (10) days after written notice of the breach. In addition, Shotgun may, as an alternative to termination, suspend Your access to the Service if You fail to make a payment to Shotgun or otherwise fail to comply with the provisions of these Terms of Service. Shotgun may also terminate these Terms of Service if You become subject to bankruptcy proceedings, become insolvent, or make an arrangement with Your creditors. These Terms of Service will terminate automatically without further notice or action by Shotgun if You go into liquidation. You acknowledge and agree that Shotgun may assign or sub-contract these Terms of Service and/or any of its rights or obligations under these Terms of Service.
Modifications to Service and Prices
- Shotgun reserves the right to improve, add, modify or discontinue certain features or parts of the Service, temporarily or permanently. Shotgun will make reasonable efforts to give advance warning of any significant changes, as determined by Shotgun in its sole discretion.
- Prices of the Service are subject to change.
- Shotgun shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Service.
- Shotgun may modify these Terms of Service at any time upon notice to You. Notice may occur by (i) posting such revised Terms on the Shotgun website at https://www.shotgunsoftware.com/terms/ or any successor or supplemental web page of Shotgun, (ii) via email or (iii) any other manner deemed reasonable by Shotgun. If a modification to these Terms of Service is unacceptable to You, You must immediately stop using the Service and any continued use of the Service by You after any such modification will constitute Your acceptance of such modification.
- Our support team will try to exceed Your expectations. You can submit a support request at any time by my emailing: email@example.com. We will respond as soon as we can, usually within a day or less. If the issue is critical, put 'URGENT' in the subject and we'll do our best to fast-track it to the top of the queue. Our official support hours are 9am to 6pm PST, but we do our best to respond even outside of those hours.
- Each Sunday morning at 5:00AM GMT, the Service will be unavailable during a maintenance window which usually lasts 5-10 minutes, but on occasion longer periods may be required. In all cases, we'll keep it as short as possible
Feedback, Copyright and Content Ownership
- You agree that ideas, suggestions, and/or feature requests that pertain the Service (“Feedback”) are and shall be owned by Shotgun and shall be the sole property of Shotgun, with Shotgun having the right to obtain and hold in its own name all intellectual property rights in and to such Feedback.
- The computer code, documentation, visual design and “look and feel” of the Service are property of Shotgun Software Inc., copyright 2006-Present. All rights reserved. Shotgun Software ® is a Registered Trademark. You may not duplicate, copy, or reuse any portion of any of these elements without express written permission from Shotgun.
- You agree and acknowledge that Shotgun may access and disclose Your Content to comply with any legal obligations or governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving Shotgun or at your request. If disclosure is made at Your request, You may be responsible for the costs of compiling and providing access to such Confidential Information.
- As part of the Service, you may be provided one or more separate software programs or toolkits that are made available for download by Shotgun and are designed to be installed and used on a computer in conjunction with the Service (“Software”). Use of all Software is subject to the end user license agreement provided or referenced by Shotgun in connection with the Software.
- Certain Software may allow You to create software code, documentation, and/or other materials for Your use in conjunction with the Service (“Contributions”). If You contribute any such Contributions to Shotgun, You agree that by doing so You assign all rights, interest, and title to Shotgun; and Shotgun agrees to grant You a non-exclusive right to continue to modify and use Your Contributions for Your non-commercial or internal business purposes.
- You agree to only give Contributions of which You are the sole copyright holder and owner.
- You acknowledge that Shotgun may elect to distribute the Contributions on any basis, including under any proprietary or open-source licensing terms.
- You agree that if You have or acquire any patent or other intellectual property interest dominating Contributions, such dominating interest will not be used to undermine the effect of the assignment set forth above. Accordingly, Shotgun and licensees are licensed to make, use, sell, distribute, and otherwise exploit Contributions and their future versions and derivative works without royalty or limitation. This provision will be binding on Your assignees and/or successors.
- Service Providers; No Sensitive Personal Data. You acknowledge that Shotgun may use third-party service providers in connection with the Services, including without limitation the use of cloud computing service providers which may transmit, maintain and store Your data using third-party computers and equipment in locations around the globe. You acknowledge that any data storage functionality associated with the Service is not intended for the storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver's license numbers, medical information, health insurance information, sensitive data about personal characteristics such as race, religion, or sexual orientation, or other personal data that may pose a risk of harm to the individual if improperly disclosed (collectively, “Sensitive Personal Data”). You agree not to upload or otherwise submit any Sensitive Personal Data in connection with the Service and further agree that Shotgun will have no responsibility or liability with respect to any such Sensitive Personal Data that is processed, transmitted, disclosed, or stored in connection with the Service.
- Your use of the Service is at Your sole risk. The Service is provided on an as is and as available basis. SHOTGUN MAKES NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE SERVICE OFFERING, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
- You understand that Shotgun uses third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service.
- You will not modify, adapt, decompile, disassemble or otherwise reverse engineer or hack the Service or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Service, or modify or attempt to modify another website so as to falsely imply that it is associated with the Service, Shotgun, or any other Shotgun service or product. You will not access or use the Service other than as set forth in these Terms of Service, and any use other than in accordance with these Terms of Service is unauthorized.
- You agree not to reproduce, duplicate, distribute, copy, sell, resell, license, sublicense, transfer, rent, loan, lease, or otherwise use or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Shotgun.
- We may, (but have no obligation to), upon reasonable notice, remove Content and/or Accounts that we determine in our sole discretion are unlawful, or violates any party's intellectual property or these Terms of Service. Notwithstanding the foregoing, Shotgun has no control over and shall have no liability for any damages resulting from Your Content or the use or misuse by any third party of Your Content that You choose to share through the Service, directly or indirectly. IF YOU CHOOSE TO SHARE YOUR CONTENT OR MAKE YOUR CONTENT AVAILABLE IN CONNECTION WITH THE SERVICE, YOU DO SO AT YOUR OWN RISK.
- Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Shotgun customer, employee, member, or officer will result in immediate termination of Service.
- You understand that the technical processing and transmission of the Service, including Your Content, may be transferred unencrypted and involve
- transmissions over various networks; and
- changes to conform and adapt to technical requirements of connecting networks or devices.
- You must not knowingly upload any content which contains any worms or viruses or any code of a destructive nature.
- In severe/extreme cases of abnormal bandwidth use, we reserve the right to throttle Your file or image hosting until You can reduce Your bandwidth consumption.
- Shotgun does not warrant that
- the Service will meet Your specific requirements,
- the Service will be uninterrupted, timely, secure, or error-free,
- the results that may be obtained from the use of the Service will be accurate or reliable,
- the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your expectations, and
- any errors in the Service will be corrected.
- You expressly understand and agree that Shotgun shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if party has been advised of the possibility of such damages), resulting from:
- the use or the inability to use the Service;
- the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service;
- unauthorized access to or alteration of Your transmissions or data;
- statements or conduct of any third party on the Service;
- termination of the Service; or
- any other matter relating to the Service.
- Shotgun’s total aggregate liability to You for damages in connection with Service or any other materials provided hereunder, regardless of the form action giving rise to such liability (under any theory, whether in contract, tort, statutory or otherwise) shall not exceed the aggregate fees paid by You to Shotgun.
- The failure of Shotgun or You to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between You and Shotgun and You regarding Your use of the Service, superceding any prior agreements between You and Shotgun (including, but not limited to, any prior versions of the Terms of Service).
- Questions about the Terms of Service should be sent to firstname.lastname@example.org.
- Reservation of Rights. Except as otherwise expressly provided herein, nothing in these Terms of Service shall be deemed to grant either party, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights.
- Confidentiality. By virtue of these Terms of Service, the parties may have access to information that is confidential to one another (“Confidential Information”). For purposes of these Terms of Service, Confidential Information of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of these Terms of Service; all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines; and all personnel, customer, contracts and financial information or materials disclosed or otherwise provided by such party (“Disclosing Party”) to the other party (“Receiving Party”). Confidential Information does not include that which (a) is already in the Receiving Party's possession at the time of disclosure to the Receiving Party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party. Without limiting the generality of, and notwithstanding the exclusions described in, the foregoing, Confidential Information of Shotgun includes the Service, including any portion thereof (in both object code and source code form), and the Feedback, and any modifications and derivatives to the Service and Feedback, and any information or materials derived there from, whether or not marked as such.
- Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of these Terms of Service and the activities described herein. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to nonuse and nondisclosure) no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
- Exclusions. Notwithstanding the foregoing, these Terms of Service shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party at the Disclosing Party's sole cost and expense) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each party may disclose the terms and conditions of these Terms of Service: (a) as required by the applicable securities laws, including, without limitation, requirements to file a copy of these Terms of Service (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) in connection with the enforcement of these Terms of Service or any rights hereunder.
- Source Code. With respect to any source code provided by Shotgun to Customer, such source code shall be subject to all of the obligations of these Terms of Service including the following additional restrictions on use and disclosure: (a) Customer shall allow use of or access to the source code only by employees or contractors of Customer who have a need to use the source code for exercise of Customers rights with respect to the source code as set forth in these Terms of Service, and who are bound to retain the confidentiality thereof under written non-disclosure agreements that include provisions (including, without limitation, provisions relating to nonuse and nondisclosure) no less restrictive than those required under these Terms of Service; (b) Customer shall maintain and use the source code only in secure, locked facilities to which access is limited to the employees or contractors set forth in subsection (a) above; (c) for source code that is useable or stored on any computer equipment (whether a multi-user system, network, stand-alone computer or otherwise), the equipment must have password-based access control, with each user having a unique user identification and associated password; (d) Customer shall use, and shall allow use of and access to, the source code only at its facilities; and (e) Customer shall maintain a record of all personnel who use or have access to the source code, the number of copies made, if any, of the source code, and the computer equipment and storage media on which the source code is used or stored.
- Equitable Relief. Each party (as Receiving Party) acknowledges that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which remedies at law would be inadequate. Accordingly, each party (as Receiving Party) acknowledges and agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party's obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper.
- Severability. If any provision of these Terms of Service is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof and thereof shall be unaffected and remain in full force and effect.
- Governing Law. These Terms of Service are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. These Terms of Service shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Indemnification. Customer shall indemnify, defend and hold harmless Shotgun, its parent and affiliated companies, and each of their respective directors, officers, employees, agents and representatives (collectively, the “Indemnitee”) from any loss, liability, damage, award, settlement, judgment, fee, cost or expense arising out of or relating to any third-party claim, action, suit or proceeding arising out of or in connection with: (a) Your Content or use of Your Content, including, without limitation, any assertion that Your Content or the use thereof may infringe any copyright, trademark, or other intellectual property or other rights of any individual or entity, or are a misappropriation of any individual or entity's trade secret, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials or use thereof caused death or bodily injury or damage to the real or tangible property of any third party; (b) Your breach or alleged breach of these Terms of Service or its representations, warranties and covenants hereunder; or (c) use of the Service by You (or anyone who accesses the Service through You). If requested by Shotgun to defend a claim, You will not agree to any settlement without the prior written consent of Shotgun and Shotgun shall have the right to participate, at its own expense, in the defense of any claim with counsel of its own choosing.
- Marketing and Promotions. Shotgun may, upon the prior approval of Customer (such approval not to be unreasonably withheld), use Customer’s name and a general description of the services that Shotgun provides to Customer for marketing purposes (including in connection with a list of Shotguns customers and for a case study highlighting Shotguns services). Shotgun shall obtain the Customer's prior written approval of any such materials prior to release.
- Remedies. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.
- Force Majeure. Both parties shall be excused from performance under these Terms of Service for any period to the extent that a party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including, without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.
- Construction. The captions and section and paragraph headings used in these Terms of Service are inserted for convenience only and shall not affect the meaning or interpretation of these Terms of Service.
- Relationship of Parties. These Terms of Service shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
- Any notice required to be given to the hereunder, unless otherwise stated herein, shall be in writing and served upon the receiving party at their respective addresses herein stated (or to such addresses as they or either of them may hereafter designate) by facsimile, prepaid first class mail, courier service or by personal delivery thereof and shall be deemed to have arrived a) on the day of arrival in respect of personal delivery; b) within forty eight hours of posting an inland letter and within six days of posting an overseas letter whether or not the letter enclosing the notice be actually delivered returned or otherwise: and c) in the case of facsimile, on the day of transmission provided such transmission occurs prior to 17:00 hours at local time of the recipient otherwise it shall be deemed received the following working day of the recipient.
- You acknowledge and agree that Your use of the Service is subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations, including, without limitations the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury (“Export Control Laws”). You shall be solely responsible for complying with the Export Control Laws and monitoring any modifications to them. You represent and warrant that (i) You are not a citizen of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Sudan, Syria and North Korea), (ii) You are not identified on any U.S. government restricted party lists (including, without limitation, the U.S. Treasury Department's List of Specially Designated Nationals and Other Blocked Persons, the U.S. Department of Commerce's Denied Party List, Entity List and Unverified List and the U.S. Department of State's proliferation-related lists), (iii) You will not, unless otherwise authorized under the Export Control Laws, use the Service in any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications, and (iv) that no part of Your Content is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that You will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, Your Content or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which You may be subject.