General Terms & Conditions

These General Terms and Conditions (these “Terms”) govern the provision of the “High Touch” services (the “Services”) by Shapeshifters Information Management GmbH, a limited liability company organized under the laws of Austria and its affiliates (“shapeshifters”), to its clients (each, a “Client,” and collectively, the “Clients”) for the purpose of realizing one or more projects developed, conceived, planned or contemplated by the Client that meet such criteria as shapeshifters may establish from time to time (each, a “Project”).  shapeshifters and the Client are herein sometimes referred to, each as a “Party” and collectively as the “Parties”, and the agreement to which these Terms apply is herein referred to as this “Agreement.”

1. 1.Phases
   The Services may be provided during one or more of the following three phases:
   - Phase 1: Determining the Cultural DNA,
   - Phase 2: Making the Match,
   - Phase 3: Realizing the Project.
   1. 1.1 Phase 1: Determining the Cultural DNA
      During Phase 1, shapeshifters shall screen potential Clients and their projects to ensure their suitability with the Services to be provided. Once a Client successfully passes this internal screening process, shapeshifters shall determine the Client’s Cultural DNA using its proprietary evaluation methods through questionnaires, interviews and such other means as shapeshifters shall deem appropriate from time to time, including:
      
      - Up to three phone interviews of 60 minutes each,
      - Synthesis of interview outcomes in a two-page Cultural DNA,
      - Client approval of final Cultural DNA to be entered into shapeshifters' portfolio,
      - Anonymous reference to Client's Cultural DNA in shapeshifters' online portfolio for one (1) calendar year starting from the date the Cultural DNA has Client's approval,
      - Active global search and matchmaking by shapeshifters for one (1) calendar year from the date the Cultural DNA has Client's approval.
   2. 1.2 Phase 2: Making the Match
      During Phase 2, shapeshifters will analyze Cultural DNAs in its portfolio to find an appropriate match for the Client. shapeshifters will only share Cultural DNAs with Clients and potential Project Partners (as defined below) if it deems a match to be appropriate and imminent. Once a match has been identified and subject to paragraph 2 of this clause, shapeshifters organizes an initial telephone introduction, after which the Client and the potential Project Partner(s) must be in agreement before a face-to-face meeting can be organized between them. If for any reason, the Client or potential Project Partner(s) decide(s) not to advance to a face-to-face meeting, the Client can ask shapeshifters to organize up to two (2) additional phone introductions during such one-year-period.
      
      Prior to the commencement of Phase 2, in particular to any introduction of the Client to a potential Project Partner (i.e. initial telephone introduction) the Client and shapeshifters shall enter into a written match agreement with terms and conditions proposed by shapeshifters and agreed to by the Client (the “Match Agreement"). During Phase 2, shapeshifters shall (a) match Client’s Cultural DNA with those of other Clients or third parties to determine one or more potential partners for the Client’s Project (each, a "Project Partner"), (b) introduce the Client to the potential Project Partners, and (c) at the Client’s request, participate in any meetings and provide such other support as the Client and shapeshifters may have agreed in the Match Agreement or as they may otherwise agree in writing from time to time.
   3. 1.3 Phase 3: Realizing the Project
      During Phase 3, the Client and the potential Project Partner may enter into such agreements or arrangements as they deem appropriate to realize the Project and realize the Project in such manner and such time frame as the Client and the Project Partner may agree from time to time. During such phase and thereafter, shapeshifters shall provide such services and shall be entitled such royalty and/or success fees or other payments as may have been agreed to by shapeshifters and the Client in the Match Agreement.
2. 2.Fees and Expenses
   1. 2.1Phase 1
      In consideration for its services performed during Phase 1, shapeshifters shall be entitled to the fixed fee set forth in shapeshifters fee schedule from time to time (the “Base Fee").
   2. 2.2Phase 2/Phase 3
      In consideration for its Services performed during Phase 2 and Phase 3, shapeshifters shall be entitled to be paid such fees and expenses as may be set forth in the Match Agreement. In the event such fees and expenses are not specified in the Match Agreement, shapeshifters shall be entitled to be (a) paid prior to commencement of the Project, a fee equal to 15% of (i) the cash amount invested by the Client or the Project Partner in the Project, or, (ii) in the event no cash amount is invested in the Project by the Client or the Project Partner, the fair market value of the Project upon its substantial completion; and (b) reimbursed for all travel, legal and administrative expenses incurred by shapeshifters during Phase 2 or Phase 3.
3. 3.Payment Terms
   1. 3.1Base Fee
      Unless otherwise agreed in writing, the Base Fee shall be payable prior to the date specified in writing by shapeshifters. If no such date shall be specified, 50% of the Base Fee shall be payable prior to the assessment interview and the remaining 50% within thirty (30) days of the completion of the Cultural DNA.
   2. 3.2Other Fees
      All other fees shall be payable on the dates specified in the Match Agreement. In the absence of any such specification, such fees shall be payable within thirty (30) days of the invoice date.
   3. 3.3Expenses/Retainer
      Unless otherwise specified in the Match Agreement or the invoice, expenses shall be due within thirty (30) days of the invoice date. shapeshifters shall be entitled to request prepayment of significant expenses or a retainer to cover future fees and expenses.
   4. 3.4Payment Default
      Interest of 1.5% per month or the highest interest rate allowed by applicable laws, whichever interest rate is lesser, shall be charged on late payments. In the event any amounts due to shapeshifters are not paid when due, shapeshifters shall not be required to provide any further Services to the Client.
4. 4.Certain Covenants and Warranties
   1. 4.1shapeshifters' Covenants and Warranties
      1. (a)Except for the covenants and agreements expressly set forth in these Terms, the Match Agreement or any written agreement executed by shapeshifters, shapeshifters shall not be required to perform any Services or other obligations to the Client. Neither the payment of any fees to shapeshifters nor the provision of any Services shall entitle the Client to any referral to a potential Project Partner or any additional Services to be provided by shapeshifters unless otherwise agreed in writing by shapeshifters.
      2. (b)shapeshifters represents and warrants to the Client that it has (i) reviewed all information provided to it by potential Project Partners and, based on such review, determined that such potential Project Partners may be suitable partners for the Client, and (ii) conducted an analysis of such potential Project Partners Cultural DNA. shapeshifters has not made any investigations or analysis beyond the review of any information provided by such Project Partner. shapeshifters does not undertake to update such analysis based on new facts or circumstances or provide the Client with any updates of such information or analysis unless requested in writing by the Client.
      3. (c)shapeshifters’ analysis of the Client’s or any Project Partner’s Cultural DNA constitutes shapeshifters’ subjective view at the time of such analysis based on the assumptions, facts and circumstances shapeshifters deemed relevant at such time in its sole discretion. Such assumptions, facts and circumstances may not be complete, and a third party may have chosen different assumptions, facts and circumstances in conducting such analysis. The Client acknowledges and agrees that based on the subjective nature of such analysis, shapeshifters does not provide any warranties with respect to such analysis (including without limitation as to its accuracy or completeness) and cannot be held responsible if the Client or any third party disagrees with shapeshifters’ assumptions, analysis, conclusion, or the selection, completeness or assessment of underlying facts.
      4. (d)shapeshifters reserves the right, but has no obligation, to review or monitor any information provided by the Client to shapeshifters or any actual or potential Project Partner. The Client understands and agrees that shapeshifters may review any information provided to it for any reason. shapeshifters may refrain from making such information available to any actual or potential Project Partner and may take appropriate action in its sole discretion (including notifying legal authorities) against the Client in the event that shapeshifters, in its sole for any reason discretion deems such information to violate this Agreement or the Match Agreement, or be illegal or offensive, or violate the rights of any third party, be potentially harmful, or threatening the safety of any third parties (including without limitation a Project Partner), or to be false, misleading, promoting illegal activities or be insulting, abusive, threatening, obscene, defamatory or libelous or inviting any conduct that is insulting, abusive, threatening, obscene, defamatory or libelous or otherwise be inappropriate.
      5. (e)shapeshifters shall make available to the Client the outcomes of its Cultural DNA analysis of each potential Project Partner and all information provided to shapeshifters by such potential Project Partner. shapeshifters shall not be responsible for (i) any action or failure to act by an actual or potential Project Partner, (ii) any information provided to the Client by or on behalf of an actual or potential Project Partner, including without limitation any such information is false, misleading or falls within any of the categories set forth in the previous clause. shapeshifters shall not be liable for the use of any personal information that a Client discloses to any Project Partner, and the Client should carefully select the type of information released to Project Partners or others.
      6. (f)shapeshifters shall have no obligation to resolve, mediate or otherwise participate in any dispute that may arise between the Client and any actual or potential Project Partner.
   2. 4.2Client's Covenants and Warranties
      1. (a)The Client hereby represents and warrants that it has all requisite power and authority to enter into this Agreement, the Match Agreement and to consummate the transactions contemplated hereby and thereby, as well as to realize the Project. Neither the Project nor its realization nor the entering by the Client into this Agreement or the Match Agreement violates any applicable law, rule or order of a governmental or other authority or any contract or other third party rights.
      2. (b)The Client shall cooperate with shapeshifters and any Project Partner selected by the Client to realize the Project in a professional manner and with the diligence expected of a reasonable person under similar circumstances. In the event that the Client decides to no longer pursue a Project, it shall promptly notify shapeshifters and any Project Partner with whom the Client is then discussing such Project or which may have been selected by the Client to realize such Project.
      3. (c)The Client shall provide all deliverables required by it to be delivered in connection with a Project or the evaluation thereof (including without limitation the payment of any monies required to be paid by the Client) in a timely manner, but in no event later than any deadlines agreed to by the Client from time to time.
      4. (d)The Client shall provide shapeshifters and each actual or potential Project Partner with all information necessary to evaluate the Client and the Project. The Client is solely responsible for any materials, documents, messages and whatever information that the Client publishes or discloses to shapeshifters for transmission to potential Project Partners. The Client shall not make any statements or fail to provide any material information (including without limitation as to its person, experience, character, and the Project) that would make any information provided to shapeshifters or a Project Partner inaccurate or misleading in any material respect. All of the Client’s information provided to shapeshifters or any actual or potential Project Partner shall be complete, accurate and truthful in all material respect.
5. 5.Limitation of Warranties and Liabilities
   1. 5.1THE CLIENT ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY PROMOTIONAL OR OTHER MATERIAL, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHAPESHIFTERS DOES NOT PROVIDE ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
   2. 5.2Under no circumstances shall shapeshifters be responsible for (a) the Client’s success in finding a Project Partner as a result of the Services, (b) the successful conclusion of a Project, (c) the accuracy or completeness of any information provided to shapeshifters by any other party (including without limitation other Clients), (d) the infringement of the Client’s Intellectual Property by a Project Partner or any third party, other than as a direct result of a breach of shapeshifters obligations hereunder or under the Match Agreement, or (e) any damages, injuries or other harm inflicted upon the Client by any actual or potential Project Partner or any third parties in connection with the Services or the Client’s pursuit of a Project or otherwise.
   3. 5.3shapeshifters’ liability to the Client for any failure to perform its obligations pursuant to this Agreement or the Match Agreement shall be limited to actions or omissions which constitute gross negligence. IN NO EVENT SHALL SHAPESHIFTERS BE LIABLE TO ANY PERSON FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR GOODWILL, OR ADDITIONAL EXPENSES INCURRED), WHETHER PURSUANT TO A CLAIM IN CONTRACT, TORT OR OTHERWISE AND WHETHER IN AN ACTION FOR BREACH OF WARRANTY OR OTHERWISE.
6. 6.Indemnification
   The Client hereby agrees to indemnify and hold harmless shapeshifters from and against any and all damages, obligations, costs or expenses arising out of or in connection with any claims brought against shapeshifters as a result of the Client’s violation of any rights, including intellectual property rights of shapeshifters or others, or any violation of this Agreement.
7. 7.Term and Termination
   1. 7.1Term
      These Terms shall become effective upon the earlier to occur of the Client’s acceptance of shapeshifters offer to conduct a Cultural DNA determination or payment of the Base Fee. These Terms shall remain in full force and effect until the earliest to occur of the termination of this Agreement or the Match Agreement or the completion of the Project.
   2. 7.2Termination
      This Agreement may be terminated at any time by either Party by giving thirty (30) days prior written notice to the other Party. All outstanding accounts of the Client shall be paid until termination of this Agreement.
   3. 7.3Future Assurance and Penalty Clause
      In case this Agreement is terminated after shapeshifters has introduced the Client to a Project Partner, and/or the Client, for whatever reason, has been introduced and/or has gained knowledge of the data of the Project Partner, and within two years after such termination is effective, the Client shall not realize a project without paying shapeshifters the fees it is entitled to pursuant to Section 2.2 of these Terms, unless it is proved that the project does not substantially reflect the ideas contained in the Project.
   4. 7.4Survival
      Even after this Agreement is terminated, Sections 3, 7.3, 8, 9, 10.1 and 10.2 of this Agreement will remain in effect.
8. 8.Intellectual Property Rights
   1. 8.1Intellectual Property
      When used in these Terms, “Intellectual Property" shall mean trademarks, patents, copyrights, applications for any of the foregoing, ideas, inventions, trade secrets, know-how, trade names, Confidential Information, discoveries, formulae, writings, procedures, techniques, or other intellectual property, and all improvements, modifications or alterations thereof, whether or not protectable by registration.
   2. 8.2Ownership of Intellectual Property
      (a) Notwithstanding anything to the contrary contained herein or in the Match Agreement, each of shapeshifters’ and the Client’s Intellectual Property shall remain the sole and exclusive property of shapeshifters or the Client, as the case may be. shapeshifters shall not be liable for any infringement of the Client’s Intellectual Property by any third party, including without limitation an actual or prospective Project Partner, investor, contractor, service provider or partner introduced to the Client by shapeshifters. The Client hereby authorizes shapeshifters to disclose to potential Project Partners such of the Client’s Intellectual Property as shapeshifters in its sole discretion shall deem necessary or appropriate, and shapeshifters shall not be liable for any misappropriation, disclosure or infringement of such Intellectual Property by any potential Project Partner or other third party. Any and all goodwill created as a result of either Party’s use of the other Party’s Intellectual Property inures to the sole benefit of the owner of such Intellectual Property.
      
      (b) Upon payment in full of the Base Fee, the Client shall become the owner of the Cultural DNA; provided that shapeshifters shall be entitled to (i) make such Cultural DNA available to potential Project Partners and (ii) on unanimous basis to third parties.
   3. 8.3Third Party Intellectual Property Rights
      The Client hereby represents and warrants to shapeshifters that the Project does not violate any Intellectual Property or other rights of any third party or any license or other agreements with respect to the foregoing. The Client owns or has an unrestricted valid right to use the Intellectual Property necessary to realize the Project.
9. 9.Confidentiality
   1. 9.1Unless otherwise agreed in writing, shapeshifters and the Client both agree not to disclose Confidential Information which is received from the other party or a third party in connection with the Services to be performed, unless (i) otherwise required by law or judicial order, or (ii) the disclosing party can prove that such information has been known to the third party prior to disclosure.
   2. 9.2“Confidential Information" means any personal, scientific, technical, trade or business information possessed or developed by a Party or a Project Partner Party", which is confidential or proprietary, including without limitation a Client’s Cultural DNA analysis, ideas, concepts, formulations, techniques, methodology, formulae, procedures, data, reports, know how, trademark, copyright or patent applications business and other plans or developments. "Confidential Information" shall not include information which (a) is or becomes part of the public domain or otherwise known to the receiving party under circumstances not involving a breach of a confidentiality obligation; or (b) is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information, as evidenced by the receiving Party’s written records.
   3. 9.3Without limitation, each of the Parties shall (i) use the information by authorized persons and for its intended purpose only (ii) not divulge it or make it accessible to any third party without the other party’s prior written consent or (iii) return or destroy - subject to compliance with applicable laws and regulations - all files or documents or copies of information stored in electronic or computerized systems containing confidential information or samples, if any, provided by the respective party at the other party’s request.
10. 10.Miscellaneous
    1. 10.1Governing Law
       These Terms, the Match Agreement and the Services shall be governed in all respects by the laws of Austria without regard to its conflict of law provisions.
    2. 10.2Dispute Resolution
       Client agrees to the exclusive jurisdiction and venue of the commercial court located in Vienna, Austria, for any and all disputes arising out of or in connection with these Terms, the Match Agreement and the Services.
    3. 10.3Conflicting Provisions
       In case any provisions in the Match Agreement conflict with these Terms, the provisions set forth in the Match Agreement shall prevail. These Terms shall prevail over any conflicting terms proposed by the Client. Any such terms are hereby expressly disclaimed and shall be of no force and effect as between shapeshifters and the Client. Amendments and Supplements to this Agreement need to be in written form.
    4. 10.4Severability
       If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, this Agreement is severed, and such provision shall be replaced with a valid and enforceable provision, which most closely reflects the intent and bargain set forth in this Agreement, and the remainder of this Agreement shall continue in full force and effect.