These Deliberate App Terms (“Terms” or this “Agreement”) are entered into by and between Deliberate Studio Inc., a Delaware corporation, with offices located at 315 Church St. #4A, New York, NY 10013 (“Provider”), and the business that installed the Deliberate Studio app (the “App”) on its Shopify store, under the legal company name entered when these Terms are accepted (“Customer”). This Agreement is effective as of the date it is accepted for Customer in the App (the “Effective Date”). Provider and Customer are each a “Party” and together the “Parties”.
The person who accepts these Terms for Customer confirms that they have the authority to bind Customer. If they do not, they must not accept, and Customer may not use the App.
“Affiliate” means with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means ownership of more than fifty percent (50%) of the voting securities of such entity.
“AI Components” means any machine learning models, large language model integrations, inference engines, prompt engineering frameworks, and related artificial intelligence or machine learning technologies that form part of the Studio Platform.
“Authorized Users” means the people Customer allows to sign in to its Workspace, including those it invites, other than Provider personnel. An “owner” or “administrator” is an Authorized User with that role in the Workspace.
“Confidential Information” means any non-public information disclosed by one Party to the other Party, whether orally, in writing, or by any other means, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
“Customer Data” means any data, content, or information submitted by or on behalf of Customer through the Studio Platform, or read from Customer’s Shopify store or other tools Customer connects, in the course of Customer’s use of the App.
“Fees” means the amounts charged for the App under the Plan Customer approves in Shopify, including any recurring plan fee and any usage charges.
“General Improvements” means any enhancements, modifications, improvements, derivative works, or developments to the Studio Platform or Provider Retained IP that are of general applicability or utility, even if conceived or developed in the course of providing the App to Customer.
“Intellectual Property Rights” means all patents, patent applications, copyrights, trademarks, service marks, trade secrets, know-how, moral rights, and any other intellectual property or proprietary rights recognized under applicable law, whether registered or unregistered.
“Plan” means the App subscription plan Customer selects and approves in its Shopify admin, as described on Shopify’s plan page for the App at the time Customer approves it, or, where a partner pays for Customer’s Workspace under Section 5.4, the plan that partner pays for.
“Provider Retained IP” means all Intellectual Property Rights owned or licensed by Provider prior to the Effective Date or developed independently by Provider, including any tools, libraries, frameworks, methodologies, and know-how.
“Shopify” means Shopify Inc. and its Affiliates, which operate the Shopify platform, the Shopify App Store and Shopify’s billing system for apps.
“Studio Platform” means Provider’s proprietary multi-tenant software and AI platform, including all software, infrastructure, AI Components, algorithms, models, workflows, agents, agent harnesses, libraries, runtimes, methodologies, APIs, interfaces, tools, and underlying technologies that comprise it, as updated, modified, or enhanced by Provider from time to time. The App is Customer’s means of access to the Studio Platform.
“Studio Platform IP” means all Intellectual Property Rights in and to the Studio Platform, including all AI Components, algorithms, models, platform architecture, code, interfaces, APIs, and any General Improvements, whether developed prior to or during the Term.
“Workspace” means the Studio Platform workspace created for Customer’s store when the App is installed.
Installing the App creates a Workspace for Customer’s store, in which a team of software agents works from Customer’s store data and from the other tools Customer connects. What the Workspace includes depends on the Plan; the features of each Plan are described on Shopify’s plan page for the App and in the Workspace. Provider may add to, modify, or substitute components of the Studio Platform over time in the ordinary course, as described in Section 4.4. Where Customer’s Plan includes Company Brain (as described in the Company Brain Annex), Sections B1 through B6, B8 and B9 of the Company Brain Annex to Provider’s Platform Terms of Service apply to it as part of these Terms. In those Sections, references to the Agreement mean these Terms (in Section B6, these Terms or, where the upgrade is under an Order, the Platform Terms of Service); references to Sections 4.3, 4.4 and 5.3 mean Sections 3.2, 3.3 and 4.3 of these Terms; a Brain is “locked” while access to it is suspended under Section 4.3(c); and where those Sections conflict with the rest of these Terms, they control for Company Brain, except that Section B8 does not permit deletion of Customer Data other than under Section 3.7. A change to those Sections is a change to these Terms under Section 11.12.
Customer must accept these Terms before its Workspace opens. Acceptance is given once for Customer, by an owner or administrator of the Workspace, and binds Customer for all of its Authorized Users. For a Workspace created on or after the date the App began asking for acceptance of these Terms, before acceptance the App reads only what the App Privacy policy describes for setting up the Workspace (Customer’s store name, contact email and Shopify plan, and the identity Shopify gives for the person signing in); it reads other store data only after acceptance. For a Workspace created before that date, the App keeps running until an owner or administrator accepts these Terms, and once accepted these Terms also govern Customer’s use of the App before acceptance.
Customer is responsible for its Authorized Users’ use of the App and their compliance with these Terms, for keeping their sign-in methods and any credentials secure, and for removing people who should no longer have access. Customer’s owners and administrators can add and remove Authorized Users in the Workspace.
By default, agents propose actions and Customer approves them. Where Customer turns on a setting under which the Studio Platform acts without a further approval for each action (for example, sending certain routine replies after a short hold, or pausing ad spend above a cap Customer sets), those actions are taken on Customer’s behalf and at its instruction, within the limits of that setting. Actions that Customer or its Authorized Users approve or ask the Studio Platform to take, in Customer’s Shopify store or in a tool Customer connects, are likewise taken on Customer’s behalf and at its instruction. Customer’s administrators may change or turn off any such setting at any time.
Customer’s data and credentials are held in a cloud project dedicated to Customer’s Workspace; a shared control plane holds only the account, access, billing, and routing information, and records of acceptance of these Terms, needed to run the Studio Platform. Customer’s API keys and credentials are stored in a managed secrets vault (Google Cloud Secret Manager or equivalent).
Customer acknowledges that Provider operates a multi-tenant platform and serves multiple customers, which may include businesses that compete with Customer. Nothing in these Terms grants Customer exclusivity or restricts Provider from providing the Studio Platform to any third party, subject at all times to Provider’s confidentiality obligations under Section 6 and Section 3.2.
As between the Parties, Provider exclusively owns all right, title, and interest in and to: (a) the Studio Platform and all Studio Platform IP; (b) all Provider Retained IP; (c) all General Improvements, regardless of whether they arise from or were inspired by Customer’s use of the App; and (d) all tools, methodologies, processes, and know-how used by Provider in providing the App. Nothing in these Terms transfers, assigns, or conveys to Customer any ownership rights in the Studio Platform IP or Provider Retained IP. Any rights not expressly granted to Customer herein are reserved to Provider.
As between the Parties, Customer retains all right, title, and interest in and to Customer Data. Customer hereby grants Provider a limited, non-exclusive license to access and process Customer Data solely to the extent necessary to provide the App and the Studio Platform to Customer. Provider will not use Customer Data to train or fine-tune any AI model, and will use AI model providers only on terms that prohibit them from training on Customer Data. Provider will not sell Customer Data. Provider may use (a) knowledge and know-how gained from operating the Studio Platform and (b) aggregated or de-identified data that does not identify Customer or its customers to maintain and improve the Studio Platform for all customers. Provider will never disclose Customer Data or Customer Confidential Information to another customer or include it in another customer’s Outputs. Except as set out in this Section 3.2, Provider will use Customer Data only to perform its obligations under these Terms or as Customer authorizes in writing. Usage Data (Section 3.5) is not Customer Data, except that any Customer Data captured in Usage Data despite masking remains Customer Data.
As between the Parties, Customer exclusively owns all right, title, and interest in and to: (a) all data, text, files, content, prompts, instructions, and other materials submitted by or on behalf of Customer as inputs to any AI Components or AI-enabled features of the Studio Platform (“Inputs”); and (b) the content and materials generated by the Studio Platform that are displayed or delivered to Customer through the Studio Platform’s user interfaces or otherwise expressly delivered to Customer, such as ad creative, drafted communications, and reports as rendered to Customer (“Delivered Outputs”). All other data, artifacts, and materials created, derived, or maintained by the Studio Platform or Provider in the course of providing the App, including intermediate and derived data, enrichments, embeddings, classifications, agent instructions, prompts and transcripts, configurations, and analyses not displayed or delivered to Customer (collectively, “Platform Artifacts”), constitute Studio Platform IP and are owned exclusively by Provider. References in these Terms to “Outputs” mean Delivered Outputs. Customer may export Customer Data and Delivered Outputs at any time during the Term, using the export features Provider makes generally available or, where none covers the content, by written request (no more than once per calendar quarter), which Provider will fulfill in a commercially reasonable format within thirty (30) days. Customer Data contained in Platform Artifacts remains Customer Data. Platform Artifacts are not included in any export, and Provider has no obligation to provide bulk export or extraction of Platform Artifacts or any other Studio Platform contents.
Customer may provide Provider with general, non-confidential feedback regarding the Studio Platform. Provider may use such general feedback to improve the Studio Platform and its services without obligation, provided that no Customer Confidential Information or identifying data is included.
Provider may collect information about how Customer’s Authorized Users use the Studio Platform, such as pages viewed, clicks, scrolling, navigation, features used, errors, performance, and device and browser type (“Usage Data”). Usage Data may include session replay recorded on signed-in pages of the Studio Platform using Microsoft Clarity or a comparable service. Provider configures session replay to mask form input, and the parts of the Studio Platform that display messages from Customer’s customers, before they leave the user’s browser, and configures it not to run on pages shown to Customer’s own customers or on pages opened from a link to a single order, license, report, or creator page. Provider uses Usage Data to operate, support, secure, and improve the Studio Platform, and may use it in aggregated or de-identified form that does not identify Customer or any individual. Provider will not sell Usage Data or use it for advertising. Session replay is processed by Provider’s session-replay provider under that provider’s terms. Customer is responsible for telling its Authorized Users, where applicable law requires, that their use of the Studio Platform may be recorded as described in Provider’s general privacy policy at deliberatestudio.com/privacy.
Provider personnel access Customer’s Workspace and Customer Data only to support Customer, to configure, operate, and secure the Studio Platform, or to meet a legal obligation. That access is subject to Section 6 and Section 3.2.
Uninstalling the App suspends the Workspace and ends Provider’s access to Customer’s store. If Customer reinstalls the App before Shopify sends its shop/redact notice (about 48 hours after an uninstall), the Workspace comes back. Within thirty (30) days after Provider receives Shopify’s shop/redact notice for Customer’s store, Provider deletes the Workspace and the Customer Data in it, including stored credentials. Provider also acts on Shopify’s customers/data_request and customers/redact notices within thirty (30) days, as described in the App Privacy policy. Customer may ask Provider to delete its data at any time by writing to support@deliberatestudio.com. The foregoing does not require Provider to delete data it must retain under applicable law, records of Customer’s acceptance of these Terms and of billing, which Provider may keep for as long as needed to establish or defend legal claims, or copies held in routine backup systems in accordance with Provider’s standard data retention practices until they are overwritten, provided such retained data remains subject to the confidentiality and security obligations of these Terms. Customer should export anything it wants to keep before uninstalling the App.
Subject to these Terms, including payment of the Fees for Customer’s Plan through Shopify, or by a partner under Section 5.4, during the Term, Provider hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Studio Platform through the App solely for Customer’s internal business purposes.
Customer shall not, and shall ensure that its Authorized Users do not:
(a) copy, modify, adapt, translate, or create derivative works of the Studio Platform or any part thereof;
(b) reverse engineer, decompile, disassemble, or attempt to derive the source code of the Studio Platform or any AI Components;
(c) sublicense, sell, resell, transfer, assign, or otherwise provide access to the Studio Platform to any third party, other than Customer’s Authorized Users;
(d) use the Studio Platform to build or benchmark a competing product or service;
(e) remove or alter any proprietary notices or markings on the Studio Platform;
(f) use the Studio Platform in any manner that violates applicable law or third-party rights, including Shopify’s terms;
(g) circumvent or disable any security, access control, usage limit, or technical restriction of the Studio Platform;
(h) attempt to access, interfere with, or disrupt the data, configurations, or environment of any other user of the Studio Platform; or
(i) bulk-download, scrape, or otherwise systematically extract data, Outputs, or other content from the Studio Platform, except through export features that Provider makes generally available or as provided in Section 3.3.
Provider may suspend Customer’s access to the Studio Platform, or any part of it, immediately upon notice if: (a) Customer materially breaches Section 4.2, or Customer’s use of the Studio Platform is abusive, including automated or excessive use beyond the Plan’s usage limits; (b) Customer’s use of the Studio Platform poses a security risk to the Studio Platform or other users; (c) Customer’s Plan is not active in Shopify and no partner is paying for the Workspace under Section 5.4, including because a charge was declined or not paid, or the subscription was canceled or frozen; or (d) Provider is required to do so by applicable law or regulatory authority. While Customer’s Plan is not active, the Workspace asks an owner or administrator to choose a Plan before it can be used. Provider shall restore access promptly upon cure of the applicable cause for suspension.
Provider reserves the right to update, modify, enhance, or discontinue features of the Studio Platform at any time in its sole discretion. Provider shall use commercially reasonable efforts to provide advance notice of material reductions in capability. Customer’s continued use of the Studio Platform following any update shall constitute acceptance of such update.
(a) Shopify. Customer’s use of Shopify, including the Shopify App Store and Shopify’s billing system, is governed by Customer’s agreements with Shopify. Shopify is not a party to these Terms and is not responsible for the App or the Studio Platform.
(b) Provider-Integrated Third-Party Services. The Studio Platform may incorporate, depend upon, or interoperate with third-party software, APIs, large language model services, cloud infrastructure, data services, and other external products or services (collectively, “Provider-Integrated Third-Party Services”), including without limitation AI model providers, cloud hosting providers, and third-party data processors. Customer acknowledges that: (i) Provider-Integrated Third-Party Services are subject to the terms, conditions, usage policies, and pricing of their respective third-party providers, which may change at any time without notice to Provider or Customer; (ii) the availability, functionality, and performance of the Studio Platform may be dependent upon or affected by the continued availability and operation of Provider-Integrated Third-Party Services; and (iii) Provider does not control Provider-Integrated Third-Party Services and shall have no liability whatsoever for any interruption, degradation, modification, discontinuation, or failure of any Provider-Integrated Third-Party Service, or for any resulting impact on the Studio Platform or Customer’s access thereto. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO PROVIDER-INTEGRATED THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY AS TO THEIR AVAILABILITY, ACCURACY, SECURITY, COMPLIANCE, OR FITNESS FOR ANY PARTICULAR PURPOSE.
(c) Substitution of Provider-Integrated Third-Party Services. Provider reserves the right, in its sole discretion, to add, modify, replace, or remove any Provider-Integrated Third-Party Service at any time, including substituting an alternative AI model provider, cloud platform, or other underlying service component, without liability to Customer, provided that Provider shall use commercially reasonable efforts to maintain substantially equivalent Studio Platform functionality following any such substitution. Any such substitution shall not constitute a breach of these Terms.
(d) Third-Party Service Terms. Customer’s use of the Studio Platform may be subject to the terms of service, acceptable use policies, data processing terms, and other agreements of Provider-Integrated Third-Party Service providers (“Third-Party Terms”). To the extent Provider is required by a third-party provider to flow down obligations to its customers, Customer agrees to comply with such obligations as notified by Provider in writing. Customer’s failure to comply with applicable Third-Party Terms that results in suspension or termination of Provider’s access to a Provider-Integrated Third-Party Service shall not constitute a breach by Provider of these Terms and shall not entitle Customer to any refund or fee reduction.
(e) Customer-Connected Integrations. The Studio Platform may permit Customer to connect, integrate, or interoperate with third-party services, data sources, APIs, or applications selected and configured by Customer, including Customer’s Shopify store (“Customer-Connected Integrations”). Customer is solely responsible for: (i) obtaining and maintaining any licenses, consents, and authorizations necessary to connect Customer-Connected Integrations with the Studio Platform; (ii) compliance with the terms and conditions governing all Customer-Connected Integrations; (iii) the security and integrity of any credentials, tokens, or access keys used to connect Customer-Connected Integrations to the Studio Platform; and (iv) any data transmitted to or from the Studio Platform via Customer-Connected Integrations, including any Customer Data or third-party data shared through such integrations. PROVIDER EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE AVAILABILITY, SECURITY, ACCURACY, OR PERFORMANCE OF CUSTOMER-CONNECTED INTEGRATIONS AND FOR ANY LOSS OR CORRUPTION OF DATA ARISING FROM THEIR USE.
(f) No Endorsement. Any reference to or integration with a third-party service in or through the Studio Platform does not constitute an endorsement, recommendation, or warranty by Provider of such third-party service, its products, or its operators. Provider shall have no obligation to maintain any particular third-party integration and makes no representations regarding the continued availability of any such integration.
The Fees are those of the Plan Customer approves in its Shopify admin, as shown on Shopify’s plan page for the App, including any recurring plan fee, any free trial, and any usage charges and usage limits that page describes. Shopify bills the Fees to Customer, through Customer’s Shopify invoice and under Shopify’s billing terms. Provider does not invoice Customer or collect payment from Customer directly, and does not accept payment for the App by any other means.
Where Customer’s Plan includes usage charges, Provider reports billable usage to Shopify’s billing system at the rates shown for that Plan, and Shopify bills it, within the usage limit Customer approved in Shopify.
Customer may change its Plan at any time from the App’s plan page in its Shopify admin, and may cancel by uninstalling the App or as that page allows. Plan changes and cancellations take effect as Shopify’s billing system applies them. Except as expressly set forth in these Terms or as required by law, Fees are non-refundable. These Terms, and any update to them, do not by themselves change the price of Customer’s current Plan.
Where a partner of Provider has agreed with Provider to pay for Customer’s Workspace, Provider bills that partner under its separate agreement with Provider for the period it pays, and this Section 5 applies only to a Plan Customer itself approves in Shopify.
All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments (collectively, “Taxes”). Customer is solely responsible for paying all Taxes associated with its purchases under these Terms, excluding taxes based on Provider’s net income.
Each Party (“Receiving Party”) agrees to: (a) hold in strict confidence the Confidential Information of the other Party (“Disclosing Party”); (b) use the Disclosing Party’s Confidential Information solely for the purposes of these Terms; and (c) not disclose the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except to the Receiving Party’s employees, contractors, and advisors who have a need to know and who are bound by confidentiality obligations no less protective than those set forth herein.
6.1.1 Data Security. Provider shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to: (a) ensure the security, integrity, and confidentiality of Customer Data and Customer Confidential Information; (b) protect against anticipated threats or hazards to the security or integrity of such information; and (c) protect against unauthorized access to, acquisition of, or use of such information. Such safeguards shall include, at a minimum: (i) encryption of Customer Data in transit and at rest using industry-standard encryption protocols; (ii) access controls limiting access to Customer Data to Provider personnel with a need to know; (iii) regular security assessments and vulnerability testing; (iv) secure development practices for all software that processes Customer Data; and (v) employee training on data security and confidentiality obligations. Provider shall provide Customer with a summary of its security practices upon reasonable request.
6.1.2 Security Incident Notification. Provider shall notify Customer in writing within forty-eight (48) hours of discovering any Security Incident. “Security Incident” means any unauthorized access to, acquisition of, disclosure of, or loss of Customer Data or Customer Confidential Information, or any breach of Provider’s security systems that could reasonably result in such unauthorized access, acquisition, disclosure, or loss. Such notice shall include: (a) a description of the nature and scope of the Security Incident; (b) the categories and approximate number of records affected; (c) the measures Provider has taken or proposes to take to address the Security Incident and mitigate its effects; and (d) the name and contact information of a Provider representative from whom additional information may be obtained. Provider shall cooperate with Customer in investigating and remediating the Security Incident and shall provide reasonable assistance in connection with any notifications Customer is required to make to affected individuals or regulatory authorities. Provider shall not make any public statements regarding any Security Incident involving Customer Data without Customer’s prior written consent, except as required by applicable law.
Confidentiality obligations shall not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was known to the Receiving Party prior to disclosure without restriction; (c) is independently developed by the Receiving Party without use of Confidential Information; or (d) is received from a third party without restriction.
If the Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt prior written notice (to the extent legally permitted) and shall cooperate in seeking a protective order or other appropriate relief.
Confidentiality obligations shall survive for three (3) years following termination or expiration of these Terms; provided, however, that obligations with respect to trade secrets shall survive indefinitely for so long as such information constitutes a trade secret under applicable law.
Each Party represents and warrants that: (a) it has full legal authority to enter into and perform these Terms; (b) these Terms have been duly authorized and accepted and constitute a valid and binding obligation; and (c) its acceptance and performance of these Terms does not violate any applicable law or any obligation to a third party.
Provider represents and warrants that: (a) to Provider’s knowledge, the Studio Platform, as provided by Provider, does not infringe the Intellectual Property Rights of any third party; and (b) Provider has the right to grant the license set forth in Section 4.1.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.2, THE APP, THE STUDIO PLATFORM AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE APP OR THE STUDIO PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED. CUSTOMER’S USE OF THE APP AND THE STUDIO PLATFORM IS AT ITS SOLE RISK.
WITHOUT LIMITING THE GENERALITY OF SECTION 7.3, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE AI COMPONENTS OR ANY OUTPUTS GENERATED BY THE STUDIO PLATFORM, INCLUDING WITHOUT LIMITATION:
(a) ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS: PROVIDER DOES NOT WARRANT THAT OUTPUTS WILL BE ACCURATE, COMPLETE, RELIABLE, UP-TO-DATE, OR FREE FROM ERRORS, HALLUCINATIONS, CONFABULATIONS, OR OTHER AI-RELATED ANOMALIES;
(b) FITNESS FOR HIGH-STAKES USE: PROVIDER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE AI COMPONENTS OR OUTPUTS ARE SUITABLE FOR USE IN REGULATED INDUSTRIES OR HIGH-STAKES CONTEXTS, INCLUDING WITHOUT LIMITATION MEDICAL, LEGAL, FINANCIAL, SAFETY-CRITICAL, OR GOVERNMENTAL APPLICATIONS, WITHOUT INDEPENDENT HUMAN REVIEW AND VERIFICATION;
(c) NON-INFRINGEMENT OF OUTPUTS: PROVIDER DOES NOT WARRANT THAT OUTPUTS WILL NOT INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE THE INTELLECTUAL PROPERTY RIGHTS, PRIVACY RIGHTS, OR OTHER RIGHTS OF ANY THIRD PARTY. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING OUTPUTS FOR POTENTIAL THIRD-PARTY RIGHTS ISSUES PRIOR TO USE OR PUBLICATION;
(d) CONSISTENCY OR DETERMINISM: PROVIDER DOES NOT WARRANT THAT THE AI COMPONENTS WILL PRODUCE IDENTICAL OR CONSISTENT OUTPUTS IN RESPONSE TO IDENTICAL OR SIMILAR INPUTS, OR THAT MODEL BEHAVIOR WILL REMAIN UNCHANGED FOLLOWING UPDATES, RETRAINING, OR FINE-TUNING;
(e) ABSENCE OF BIAS OR HARMFUL CONTENT: PROVIDER DOES NOT WARRANT THAT THE AI COMPONENTS WILL BE FREE FROM BIAS, DISCRIMINATORY OUTPUTS, OFFENSIVE CONTENT, OR OUTPUTS THAT MAY BE HARMFUL OR OBJECTIONABLE IN ANY PARTICULAR CONTEXT; AND
(f) REGULATORY COMPLIANCE: PROVIDER MAKES NO WARRANTY THAT THE AI COMPONENTS OR OUTPUTS COMPLY WITH ANY APPLICABLE LAWS OR REGULATIONS GOVERNING ARTIFICIAL INTELLIGENCE, AUTOMATED DECISION-MAKING, DATA PROTECTION, EQUAL OPPORTUNITY, OR OTHER LEGAL REQUIREMENTS IN ANY JURISDICTION.
CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING THE APPROPRIATENESS, ACCURACY, AND LEGALITY OF ALL OUTPUTS BEFORE ACTING UPON OR RELYING ON THEM, AND FOR ACTIONS TAKEN ON ITS BEHALF UNDER SECTION 2.4. PROVIDER STRONGLY RECOMMENDS THAT CUSTOMER IMPLEMENT APPROPRIATE HUMAN OVERSIGHT PROCESSES FOR ALL MATERIAL USE CASES INVOLVING AI-GENERATED OUTPUTS.
Provider shall defend, indemnify, and hold harmless Customer and its officers, directors, employees, and agents from and against any third-party claims, actions, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any claim that the Studio Platform (as provided by Provider) infringes the Intellectual Property Rights of a third party; or (b) Provider’s gross negligence or willful misconduct; provided that such indemnification shall not apply to the extent that a claim arises from Customer’s modification of the Studio Platform, Customer’s combination thereof with other products not provided by Provider, or Customer’s breach of these Terms.
Customer shall defend, indemnify, and hold harmless Provider and its officers, directors, employees, and agents from and against any third-party claims, actions, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer Data and Inputs, including any claim that Customer Data or Inputs infringe or misappropriate the rights of any third party; (b) Customer’s use of the App or the Studio Platform in violation of these Terms or applicable law; or (c) Customer’s gross negligence or willful misconduct.
The indemnified Party shall: (a) promptly notify the indemnifying Party in writing of the claim; (b) grant the indemnifying Party sole control of the defense and settlement; and (c) provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense. The indemnifying Party shall not settle any claim in a manner that imposes any obligation or liability on the indemnified Party without its prior written consent.
If the Studio Platform becomes, or in Provider’s reasonable opinion is likely to become, the subject of an infringement claim, Provider may, at its option: (a) procure for Customer the right to continue using the affected materials; (b) modify the affected materials so they are non-infringing while maintaining substantially equivalent functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate the license and refund a pro-rated portion of any Fees Customer prepaid for the period after termination. The foregoing states Provider’s sole liability and Customer’s sole remedy with respect to any infringement claim.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR BUSINESS OPPORTUNITY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO (A) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, (C) CUSTOMER’S PAYMENT OBLIGATIONS, OR (D) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED THE GREATER OF (I) THE TOTAL AMOUNTS PAID OR PAYABLE FOR CUSTOMER’S WORKSPACE, WHETHER THROUGH SHOPIFY OR BY A PARTNER UNDER SECTION 5.4, DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (II) ONE HUNDRED U.S. DOLLARS (US$100).
These Terms commence on the Effective Date and continue for as long as the App is installed on Customer’s store or Customer has a Workspace, unless terminated earlier in accordance with this Section 10 (the “Term”).
Customer may terminate these Terms at any time by uninstalling the App. Termination takes effect when Provider deletes the Workspace and Customer Data under Section 3.7; if Customer reinstalls the App before then, these Terms continue. Customer owes the Fees Shopify bills for its Plan through the date the uninstall or cancellation takes effect in Shopify’s billing system.
Provider may terminate these Terms for convenience upon at least fifteen (15) days’ prior notice to Customer. Either Party may terminate these Terms for cause upon written notice if: (a) the other Party materially breaches these Terms and fails to cure such breach within thirty (30) days after receiving written notice thereof; or (b) the other Party becomes insolvent, makes an assignment for the benefit of creditors, or is subject to bankruptcy, receivership, or dissolution proceedings. If Provider terminates for convenience, Customer owes no Fees for any period after termination, Provider will refund any such Fees Shopify bills, and Provider deletes the Workspace under Section 3.7 as if it had received Shopify’s shop/redact notice on the termination date.
Upon expiration or termination of these Terms for any reason: (i) the license granted under Section 4.1 shall immediately terminate; (ii) Customer shall promptly cease all use of the Studio Platform; (iii) each Party shall promptly return or destroy the other Party’s Confidential Information in accordance with the Disclosing Party’s reasonable instructions and Section 3.7; and (iv) all Fees accrued through the effective date of termination remain payable through Shopify.
The following Sections shall survive termination or expiration: Section 1, Section 2.1 (as to the Company Brain Annex Sections it incorporates), Section 2.3 (as to use before termination), Section 2.4 (as to actions already taken), Section 3, Section 4.5, Section 5 (with respect to accrued amounts), Section 6, Sections 7.3 and 7.4, Section 8, Section 9, Section 10.3 (as to Fees after termination and deletion), Section 10.4, Section 10.5, and Section 11.
These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. Any dispute arising out of or relating to these Terms shall first be submitted to senior representatives of each Party for good-faith negotiation for thirty (30) days before being submitted to binding arbitration administered by AAA under its then-current commercial arbitration rules, with proceedings conducted in New York county, New York. Either Party may seek emergency injunctive or equitable relief in any court of competent jurisdiction to prevent irreparable harm.
All notices under these Terms shall be in writing. Provider may give notice to Customer by email to the owners and administrators of Customer’s Workspace or to the contact email of Customer’s Shopify store, or, for notices that concern use of the Workspace, in the Workspace. Customer may give notice to Provider by email to legal@deliberatestudio.com. A notice sent by email is deemed delivered when sent, unless the sender receives a notice that it was not delivered.
Neither Party may assign these Terms or any rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld; except that either Party may assign these Terms without consent to an Affiliate, provided that the assigning Party remains liable for the assignee’s performance. Any purported assignment in violation of this Section shall be null and void.
The Parties are independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties. Actions taken under Section 2.4 are Customer’s own actions and do not make Provider Customer’s agent for any other purpose. Otherwise, neither Party shall have authority to bind the other Party.
These Terms, together with the Plan Customer approves in Shopify and the policies they reference, constitute the entire agreement between the Parties with respect to the App and supersede all prior agreements, negotiations, representations, and understandings relating thereto. If Customer and Provider later enter into an Order (as defined in Provider’s Platform Terms of Service), those Platform Terms govern the services that Order covers from its effective date. A Plan Customer approves in Shopify stays under these Terms unless that Order expressly covers it. Except as provided in Section 11.12, these Terms may only be amended by a written instrument signed or electronically accepted by authorized representatives of both Parties.
No failure or delay by either Party in exercising any right, power, or remedy shall operate as a waiver thereof. No single or partial exercise of any right, power, or remedy shall preclude any other or further exercise thereof.
If any provision of these Terms is held to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the remaining provisions shall continue in full force and effect.
Neither Party shall be liable for any delay or failure in performance (other than payment obligations) caused by circumstances beyond such Party’s reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, governmental actions, power failures, or internet outages, provided that the affected Party promptly notifies the other Party and uses reasonable efforts to mitigate the impact.
These Terms are accepted electronically. An owner or administrator of Customer’s Workspace accepts them for Customer by entering Customer’s legal company name, their name and title, checking the box confirming their authority, and clicking “Accept for my company” in the App. That acceptance constitutes Customer’s execution of these Terms and has the same force and effect as a handwritten signature. Electronic signatures shall be deemed valid and binding to the same extent as original signatures.
These Terms are for the sole and exclusive benefit of the Parties and their permitted successors and assigns. Nothing in these Terms is intended to or shall confer upon any other person, including Shopify, any legal or equitable right, benefit, or remedy.
Customer shall comply with all applicable export control laws and regulations in connection with its use of the Studio Platform. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any country subject to a U.S. government embargo.
Provider may update these Terms by posting a revised version at deliberatestudio.com/app-terms. For changes that materially affect Customer’s rights or obligations, Provider will email the owners and administrators of Customer’s Workspace and the contact email of Customer’s Shopify store at least thirty (30) days before the change takes effect, and may ask an owner or administrator to accept the updated Terms in the App; changes required by law, and terms that apply only to new features, may take effect sooner. If Customer does not agree to an update, Customer may uninstall the App before the update takes effect, owing only Fees accrued through the date the uninstall takes effect. Otherwise, Customer’s continued use of the App after the effective date constitutes acceptance of the update. An update does not by itself change the price of Customer’s current Plan and does not apply to any dispute arising before its effective date.