MODEL SHAPE, LLC
LAST UPDATED: NOVEMBER 19, 2019
MODEL SHAPE, LLC (“US”, “WE”, OR “SHAPE”) IS PLEASED TO PROVIDE YOU WITH ACCESS TO OUR WEBSITE, LOCATED AT MODELSHAPE.COM, AND MOBILE AND TABLET WEBSITES (COLLECTIVELY, THE “WEBSITE”), MOBILE AND TABLET APPLICATIONS (THE “APP”), PRODUCTS AND SERVICES ACCESSIBLE VIA OUR WEBSITE AND/OR APP, ELECTRONIC SERVICES, SOCIAL NETWORKING SITES, INTERACTIVE FEATURES SOFTWARE, TECHNOLOGY, TOOLS, CONTENT, PROMOTIONS, CONTESTS, SWEEPSTAKES, EQUIPMENT, AND ANY OTHER MATERIALS OR ANY OTHER ONLINE ACTIVITIES OR PLATFORMS WE OWN OR CONTROL (COLLECTIVELY, THE “SHAPE SITE”).
The health, nutrition, and fitness information provided through the SHAPE Site is broad in nature and in scope and may not be suitable for everyone or appropriate or relevant to your personal situation. You acknowledge that the SHAPE Site has been established for general informational purposes only; as such, the content on the SHAPE Site does not constitute solicitation or provision of medical advice. You should always seek the advice of a physician or other qualified healthcare provider for information about or the diagnosis or treatment of any health problem or disease.
THE HEALTH, NUTRITION, AND FITNESS INFORMATION PROVIDED ON THE SHAPE SITE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT DISEASES. For personal healthcare information and advice and before revising your health, nutrition, or fitness strategies, please consult a physician or professional healthcare advisor who is familiar with your personal circumstances. We do not guarantee that the content, services, or products available through the SHAPE Site are safe and proper for every individual. THE STATEMENTS MADE ABOUT SPECIFIC SERVICES AND PRODUCTS MADE AVAILABLE VIA THE SHAPE SITE HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION, AND INDIVIDUAL RESULTS MAY VARY.
YOU SHOULD ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL BEFORE BEGINNING ANY NUTRITION PLAN OR ALTERING ANY DIETARY REGIMEN AND BEFORE BEGINNING ANY EXERCISE PROGRAM OR TRAINING PLAN, especially if you are prone to injuries, pregnant or nursing, taking any medication, or have any other unique or special medical conditions, such as food allergies or dietary restrictions.
The information on the SHAPE Site is subject to change at any time and may be incomplete and/or may contain errors. While we intend to make every attempt to keep the information on the SHAPE Site current, we make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to or from the SHAPE Site. SHAPE and its agents and associates disclaim any liability, loss, or risk, directly or indirectly, of the application of any of the contents of the SHAPE Site.
- PARENTAL CONSENT. SHAPE DOES NOT TARGET ANY OF ITS CONTENT TO CHILDREN UNDER 18 YEARS OF AGE. IN COMPLIANCE WITH COPPA (CHILDREN’S ONLINE PRIVACY PROTECTION ACT), IF YOU ARE UNDER AGE 18 (OR UNDER THE AGE OF MAJORITY UNDER APPLICABLE LAW), WE WILL REQUIRE PARENTAL OR GUARDIAN CONSENT, WHICH MAY BE ACCESSED HERE, BEFORE YOU MAY OBTAIN ACCESS TO THE SHAPE SITE. WE RESERVE THE RIGHT TO REQUEST PROOF OF IDENTITY TO VERIFY YOUR AGE AT ANY TIME.
THE SHAPE SITE IS NOT INTENDED FOR ANYONE UNDER THE AGE OF 13. IF YOU ARE 13 TO 17 YEARS OF AGE, YOU MUST ACCESS AND/OR USE THE SHAPE SITE ONLY WITH THE PERMISSION AND INVOLVEMENT OF YOUR PARENT OR GUARDIAN.
- ELECTRONIC COMMUNICATION. The communications between you and SHAPE are electronic. You consent to receive communications from SHAPE in an electronic form. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
- THE SITE DOES NOT PROVIDE MEDICAL ADVICE. The SHAPE Site does not constitute solicitation or provision of medical advice. Rather, the SHAPE Site is for informational purposes only. None of the content or materials presented or services or products offered on or through the SHAPE Site may be relied upon by any person for any medical, diagnostic, or treatment reasons whatsoever. Any person reviewing the content or materials presented, or using the services or products offered, should obtain specific medical advice and answers to specific medical questions by a qualified healthcare professional. The information provided here should not be used to diagnose or treat any health problem, injury, or disease. The content of the SHAPE Site is not intended in any way to be a substitute for professional medical advice. Those who access the SHAPE Site should consult their physician or other qualified healthcare provider before following any of the suggestions or making any conclusions from the SHAPE Site. SHAPE and its associates disclaim any liability, loss, or risk, directly or indirectly, of the application of any of the contents of the SHAPE Site.
- NUTRITION INFORMATION. Certain content available on the SHAPE Site, such as nutrition plans and nutrition tracking, provide nutrition, food, caloric, and other related information designed to help you eat healthy to reach your health and wellness goals. While any nutrition information we may provide is designed to safely align with our health, nutrition, and fitness products and services, you must consult your physician before beginning any nutrition plan or altering any dietary regimen, especially if you have any unique or special medical needs or conditions, such as food allergies, dietary restrictions, or if you are pregnant or breast feeding.
- PRODUCTS AND/OR SERVICES ACCESSIBLE VIA SHAPE SITE. In addition to any separate purchase or service agreement required by SHAPE for the purchase of products and/or services accessible via the SHAPE Site, the following terms shall apply if you decide to purchase products and/or services from SHAPE:
- Payment Information. You understand all payments must be made to SHAPE through PayPal. When you provide any information to SHAPE for any reason, such as to register for the purchase of products or services, you agree to only provide true, accurate, current, and complete information. By providing any credit card or other payment information to us, you represent that such payment information is correct and belongs to you or you have the authority to use such payment card. In the case of email, you must provide an accurate email address that is registered in your name. You are responsible for promptly updating your information with any changes, including the requirement to keep billing information current. You must promptly notify SHAPE if your payment card is cancelled (for example, for loss or theft). To help keep your account current and prevent interruption, you acknowledge SHAPE may update your payment card information on file when it is set to expire or based on updates it receives from the bank that issues your payment card. You agree that your placement of an electronic order via the Website and/or App is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card charges unless you have made a reasonable attempt at resolving the matter directly with SHAPE. All prices are displayed in United States Dollars unless expressly indicated otherwise.
- Order Processing. SHAPE reserves the right to refuse or cancel any order prior to delivery. Orders may also be cancelled due to typographical errors, system failures, inaccuracies in product/service/subscription pricing information or availability, or problems identified by SHAPE’s credit or fraud departments. SHAPE also may require additional verification or information before accepting an order. SHAPE will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after SHAPE processed your payment but prior to delivery, SHAPE will refund your payment. All purchases are also subject to applicable shipping and handling charges and sales and/or other taxes, which will be applied to Client’s order total. Taxes will be calculated based on the billing address provided.
- Personal Training Services. SHAPE offers certain online and personal training services on a case-by-case basis, which services consist of a ninety (90) day program customized to your specific requirements (“SHAPE Program”). Depending on the SHAPE Program designed for you, your services may be billed in one installment prior to the commencement of your SHAPE Program, or three (3) equal monthly installments over the course of your SHAPE Program. You authorize SHAPE to charge your payment card for the services purchased, plus applicable taxes. Monthly charges will typically occur on or around the same day of the month as your initial first installment, although some charges may be delayed for business or legal reasons. The purchase price for the SHAPE Program is for one user. Your customized SHAPE Program shall only be used by you and shall not be used by any other party or parties, including your friends, siblings, spouses, etc. We reserve the right to increase, modify, or discontinue certain personal training services and associated billing procedures, at any time without notice or any liability.
- Non-refundable Personal Training Services. All payments made for your SHAPE Program are non-refundable. You shall not be relieved of the obligation to make payments agreed to, and no deduction from or reimbursement of any payment shall be made because of your failure to participate and/or complete the SHAPE Program designed for you, unless such failure to complete is on the basis of death or disability and such disability somehow effects your capacity to use or enjoy the SHAPE Program. A physician must verify the condition. Upon cancellation for either reason, no further payments are required, and a prorated portion of any amount prepaid shall be refunded to you or your representative upon a written request made to firstname.lastname@example.org.
- Credit Card Chargeback Policy. We protect the business and credit card companies, banks, and other institutions providing related services to us from fraudulent credit card chargebacks. A chargeback is fraudulent if the credit card holder disputes a legitimate charge for products the holder has purchased from a merchant. You hereby understand and agree that in the event you attempt to create a fraudulent chargeback, SHAPE will work with the relevant credit card company, bank, or other institution and law enforcement authorities to investigate the matter.
- Reservation of Rights. SHAPE reserves the right to suspend or terminate your interaction with the SHAPE Site for any or no reason, in its sole and absolute discretion, including your access, use, or purchase of any products, goods, or services that SHAPE provides.
- Other Terms and Conditions. SHAPE reserves the right to not process or cancel your order in certain circumstances. This may occur, for example, when the product or service you wish to purchase is out of stock or has been mispriced, we suspect the request is fraudulent, or in other circumstances SHAPE deems appropriate in its sole discretion. SHAPE also reserves the right, in its sole discretion, to take steps to verify your identity to process your order. SHAPE will either not charge you or refund the charges for orders that we do not process or cancel. Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation, which may include postal-service notification. We will adjust your account at our discretion. In the event that a refund is issued, it can only be issued to the original form of payment.
- Title; Risk of Loss. The risk of loss and title for items purchased by you pass from SHAPE to you on shipment from SHAPE’s facility. All shipments are governed in accordance to our standard shipping terms. For shipments to you in the United States, we will ship the products FOB, SHAPE’s point of shipment.
- Product and Service Availability. We are always striving to improve the SHAPE Site, including our products and services. Therefore, we may revise or discontinue products or services at any time without notice or any liability. Prices and promotions are subject to change without notice. We do not warrant that information available via our SHAPE Site is accurate, complete, reliable, current, or error-free. The SHAPE Site may contain information regarding the availability of merchandise. This information can be used to estimate the likelihood that an item will be shipped immediately after you place your order. Unfortunately, SHAPE cannot guarantee that an item listed as “in stock” will actually ship right away, as inventory can change significantly from day-to-day. In rare cases, a product or service offering may be in stock when a customer places the order, and sold out by the time SHAPE attempts to process the order.
- ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS. You acknowledge that the SHAPE Site contains health, nutrition, and fitness information. You further acknowledge that participation in any fitness activity or program may require physical and mental activity and exertion and, as appropriate, use of certain equipment and machinery, all of which increase heart rate and body temperature. Such activities and programs may be strenuous and may cause physical injury, and you acknowledge that you are fully aware of the risks and hazards involved. Such activities and programs may involve risks, including but not limited to property damage, injury, disability, or even death. Serious neck and spinal injuries resulting in complete or partial paralysis, heart attack, stroke, or even death may occur. Injuries could occur to bones, joints, or muscles. Slips, falls, and unintended loss of balance could result in muscular, neurological, orthopedic, or other bodily injury. You further understand that part of the risk involved in undertaking any fitness activity or program is relative to your state of fitness or health (physical, mental, and/or emotional) and to the awareness, care, and skill in which you conduct yourself in that activity or program. You hereby voluntarily agree to use the SHAPE Site. Knowing the material risks and appreciating, knowing, and reasonably anticipating that other injuries are a possibility, you hereby expressly assume all of the delineated risks of injury, all other possible risk of injury, and even risk of possible death, which could occur by reason of your use of the SHAPE Site. By this acknowledgement and assumption of risks, it is your intention to relieve SHAPE and its affiliates of any and all duty to you and you assume the entire risk of any of the losses, costs, and damages that might occur during or as a result of your use of the SHAPE Site and/or participation in any such activities therein.
- REPRESENTATION OF ABILITY TO PARTICIPATE. You further represent and certify that you have no medical or dietary condition that would cause use of the SHAPE Site to be potentially hazardous to your health. You are aware that the results achieved through use of the SHAPE Site may vary from person to person, and you acknowledge that no promises or guarantees have been made as to the results associated with your use of the SHAPE Site. If you are required to complete a Physical Activity Readiness Questionnaire (“PAR-Q”) to purchase our products or services, you represent and certify that you accurately completed the PAR-Q, including disclosure of any prescribed medications you are taking and any exercise or diet limitations you are aware of or have been informed of by your physician. YOU SHOULD ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL BEFORE BEGINNING ANY NUTRITION PLAN OR ALTERING ANY DIETARY REGIMEN AND BEFORE BEGINNING ANY EXERCISE PROGRAM OR TRAINING PLAN.
- MOBILE NETWORKS; TEXTING. When you contact us via your mobile phone, or you sign up for our text message programs, where available, or you access any SHAPE Site through a mobile network, such as our App or Website, your network or roaming provider’s messaging, data, and other rates and fees may apply. Not all SHAPE Sites may work with your network provider or device. When you sign up to receive text messages from us, you acknowledge and agree you will receive such text messages using an auto-dialer to the number you provide, and that your express consent for us to send you text messages is not a condition of purchasing any SHAPE Site. You are free to opt-out of receiving text messages from us at any time.
You understand that you may publish User Content to the SHAPE Site, which is a public forum and not a communication between you and your physician or healthcare provider. We ask that you protect your private health information and that of your family by not posting or publishing User Content that contains personal health information.
- AFFILIATED AND THIRD PARTY SITES, THIRD PARTY SERVICES, AND THIRD PARTY CONTENT. SHAPE has no control over, and no liability for any third party websites or materials. SHAPE works with a number of third party partners and affiliates, whose Internet sites may be linked with the SHAPE Site. Because neither SHAPE nor the SHAPE Site has control over the content and performance of these third party partner and affiliate sites, SHAPE makes no guarantees about the accuracy, currency, content, policies, promotions, products, services, or quality of the information provided by such third party sites, and SHAPE assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the SHAPE Site, you may have access to content items (including, but not limited to websites or “social media” sites such as Instagram, Facebook, Pinterest, YouTube, Twitter, etc.) that are owned by third parties. You acknowledge and agree that SHAPE makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, policies, promotions, products, services, failures, actions, damages, losses, problems, or quality of this third party content. You acknowledge sole responsibility for and assume all risk arising from your use of any third party website.
- NO WARRANTIES. YOU ACKNOWLEDGE AND AGREE THE SHAPE SITE, INCLUDING WITHOUT LIMITATION, ANY WEBSITES, MOBILE OR TABLET WEBSITES, MOBILE OR TABLET APPLICATIONS, PRODUCT AND SERVICES AVAILABLE AND ACCESSIBLE VIA OUR WEBSITE, ELECTRONIC SERVICES, SOCIAL NETWORKING SITES, INTERACTIVE FEATURES, SOFTWARE, TECHNOLOGY, TOOLS, CONTENT, PROMOTIONS, CONTESTS, SWEEPSTAKES, EQUIPMENT, AND ANY OTHER MATERIALS OR ANY OTHER ONLINE ACTIVITIES OR PLATFORM WE OWN OR CONTROL ARE PROVIDED AS-IS AND AS AVAILABLE, WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND.
SHAPE AND ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, AND REPRESENTATIVES, HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES. SHAPE IS MAKING THE SHAPE SITE AVAILABLE “AS-IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SHAPE SITE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHAPE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SHAPE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. SHAPE DOES NOT WARRANT THAT THE SHAPE SITE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SHAPE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SHAPE SITE IS AT YOUR SOLE RISK.CERTAIN APPLICABLE STATE LAWS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, AND REPRESENTATIVES, SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.YOU WILL NOT HOLD SHAPE OR ITS THIRD PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SHAPE SITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE SHAPE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH THE SHAPE SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD PARTY CONTENT OR THIRD PARTY SERVICES MADE AVAILABLE BY THIRD PARTIES THROUGH OUR SHAPE SITE.INDIVIDUAL RESULTS MAY VARY. results will differ based upon various factors including without limitation, body type, nutrition, EFFORT, etc. and no guarantees of results are possible.
- LIMITED LIABILITY. SHAPE’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SHAPE OR ANY OF OUR OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, OR REPRESENTATIVES (COLLECTIVELY, THE “SHAPE PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SHAPE SITE OR ANY OTHER MATERIALS, PRODUCTS, GOODS, OR SERVICES PROVIDED TO YOU BY SHAPE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION EVEN IF SHAPE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS AND/OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT SHAPE PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
FURTHERMORE, YOU SPECIFICALLY ACKNOWLEDGE THAT SHAPE PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. SHAPE DISCLAIMS AND TAKES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER USER, ON OR OFF THE SHAPE SITE. SHAPE TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER USER OR THIRD PARTY POSTS, SENDS, OR RECEIVES THROUGH THE SHAPE SITE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SHAPE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK.YOU WILL NOT HOLD SHAPE OR ITS THIRD PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SHAPE SITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE SHAPE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH THE SHAPE SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD PARTY CONTENT OR THIRD PARTY SERVICES MADE AVAILABLE BY THIRD PARTIES THROUGH THE SHAPE SITE.YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SHAPE SITE IS TO STOP USING THE SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF SHAPE PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS AND/OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU OR ONE HUNDRED DOLLARS ($100.00) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SHAPE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHAPE AND YOU.CERTAIN APPLICABLE STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- INDEMNITY. YOU AGREE TO INDEMNIFY SHAPE FOR YOUR ACTS AND OMISSIONS. IN CONSIDERATION FOR YOUR USE OF THE SHAPE SITE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOURSELF, YOUR HEIRS, EXECUTORS, AND ADMINISTRATORS, AND ANY OTHER PERSON(S) WHO MAY TAKE BY OR THROUGH YOU, HEREBY AGREE TO INDEMNIFY, DEFEND, RELEASE, FOREVER DISCHARGE, AND HOLD HARMLESS THE SHAPE PARTIES, FROM AND AGAINST ANY LIABILITY FOR ANY AND ALL THIRD PARTY CLAIMS, JUDGMENTS, DAMAGES, LIABILITIES, SETTLEMENTS, LOSSES, COSTS, EXPENSES, AND RECOVERIES FOR ANY AMOUNTS CLAIMED DUE, OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SHAPE SITE, WHICH YOU MAY NOW OR HEREAFTER BE ENTITLED TO ASSERT, INCLUDING PENALTIES, INTEREST, AND REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, INCLUDING BUT NOT LIMITED TO ANY DEATH, INJURY, LOSS OF ENJOYMENT, PROPERTY DAMAGE, OR OTHER HARM OR LOSS OF ANY KIND OR NATURE, ANY CLAIMS BASED ON PUBLICITY RIGHTS, INVASION OF PRIVACY, DEFAMATION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, OR ANY OTHER INTELLECTUAL PROPERTY RELATED CAUSES OF ACTION, OR YOUR USE OR MISUSE OF THE SHAPE SITE, OR YOUR OTHER ACTS OR OMISSIONS IN CONNECTION THEREWITH.
- RELEASE. To the fullest extent permitted by applicable law, you hereby release and forever discharge SHAPE and the SHAPE Parties from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, emotional distress, identity theft, death, and property loss and damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (A) any interactions with, or act or omission of, or User Content provided by, other SHAPE Site users or (B) any third-party site, products, services, and links included on or accessed through the Shape Site.
SHAPE reserves the right, but has no obligation, to monitor or take action regarding disputes that you may have with other users or customers. To the extent the law permits, you release us from any claims or liability related to any content and/or User Content posted on the SHAPE Site and from any claims related to the conduct of any other users or customers of ours. You agree to waive California Civil Code Section 1542 (if you are a California resident), and any similar provision in any other jurisdiction (if you are a resident of such jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- PROHIBITED USES. SHAPE imposes certain restrictions on your permissible use of the SHAPE Site. You are prohibited from violating or attempting to violate any security features of the SHAPE Site, including, without limitation, (A) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (B) attempting to probe, scan, or test the vulnerability of the SHAPE Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (C) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the SHAPE Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (D) using the SHAPE Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (E) forging any TCP/IP (i.e., Transmission Control Protocol/Internet Protocol) packet header or any part of the header information in any e-mail or in any posting using the SHAPE Site; or (F) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by SHAPE in providing the SHAPE Site. Any violation of system or network security may subject you to civil and/or criminal liability.
- OWNERSHIP OF THE SHAPE SITE. Except as provided herein, the SHAPE Site (including past, present and future versions) and all content that are included in, on, or that are otherwise a part of the SHAPE Site (collectively, the “SHAPE Content”) are owned, controlled or licensed by SHAPE.
- COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing the SHAPE Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the SHAPE Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any User Content you provide or transmit. The burden of proving that any content does not violate any laws or third party rights rests solely with you. You further agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights or notices incorporated in or accompanying the SHAPE Site or SHAPE Content.
- COPYRIGHT INFRINGEMENT. We respect the intellectual property of others, and we ask you to do the same. SHAPE has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the SHAPE Site. If you are a copyright owner or an owner’s agent and find any content on the SHAPE Site that infringes upon your copyrights, you may submit a notification according to the Digital Millennium Copyright Act (“DMCA”). SHAPE has adopted a policy that provides for the immediate suspension and/or termination of any SHAPE Site user who is found to have infringed on the rights of SHAPE or of a third party, or otherwise violated any intellectual property laws or regulations. SHAPE’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want SHAPE to delete, edit, or disable the material in question, you must provide SHAPE with all of the following information in writing: (A) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (B) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (C) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SHAPE to locate the material; (D) information reasonably sufficient to permit SHAPE to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (E) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (F) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to SHAPE’s designated agent at:
POTENTE, A Professional Law Corporation
Attn: Model Shape, LLC DMCA Agent
4320 La Jolla Village Drive, Suite 170
San Diego, California 92122
- COPYRIGHT. All SHAPE Content included in or made available through the SHAPE Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the exclusive property of SHAPE or its content suppliers and protected by United States and international copyright laws. The compilation of all SHAPE Content included in or made available through the SHAPE Site is also the exclusive property of SHAPE and protected by United States and international copyright laws. Without limitation, SHAPE owns a copyright in the selection, coordination, arrangement, and enhancement of the SHAPE Content on the SHAPE Site. All SHAPE Content of the SHAPE Site is: Copyright © 2019 SHAPE. All rights reserved.
- GOVERNING LAW. You agree that all matters relating to your access to or use of the SHAPE Site, including all disputes, are governed by and construed in accordance with the laws of the United States and the State of California, without regards to its conflict of law provisions. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Los Angeles, California, United States of America, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
- DISPUTE RESOLUTION.
To begin an arbitration proceeding, you must comply with the limitations provision set forth in subsection (E) and send a letter requesting arbitration and describing your claim to our registered agent. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. SHAPE will reimburse those fees for Disputes totaling less than $10,000 unless the arbitrator determines the Dispute is frivolous. Likewise, SHAPE will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the Dispute is frivolous. The arbitration will be conducted based upon written submissions unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary.Contact information for SHAPE’s registered agent for Disputes/Arbitration is as follows:POTENTE, A Professional Law Corporation
ATTN: Registered Agent of Model Shape, LLC
4320 La Jolla Village Drive, Suite 170
San Diego, California 92122
- No Class Action Matters. We each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding, or as an association. In addition, we each agree that Disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
- Choice of Law and Forum; No Jury Trial. If for any reason a Dispute proceeds in court: (i) except with respect to a qualifying claim over a Dispute in a small claims court, you agree that any such Dispute may only be instituted in a state or federal court in Los Angeles County, California; (ii) you and SHAPE irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) you and SHAPE agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of California, without regard to principles of conflicts of law, will govern this Dispute Agreement and any Disputes; and (iv) you and SHAPE agree to waive any right to a trial by jury.
- Time Limitations. If either party wants to assert a Dispute against the othe partyr, the party with a Dispute must institute arbitration within one (1) year from the date the Dispute arose. Absent commencing the arbitration within one (1) year from the date the Dispute arose, the Dispute(s) will be forever barred.
- Severability. With the exception of subsection (B) above, if any part of this section is ruled to be unenforceable, then the balance of this section shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein. If subsection (B) above is ruled to be unenforceable, then subsection (A) shall be deemed unenforceable, but the rest of this section shall remain in full effect.
- CALIFORNIA USE ONLY. The SHAPE Site is controlled and operated by SHAPE from its offices in the State of California. SHAPE makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the SHAPE Site should not be construed as SHAPE’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
- INTERNATIONAL USE. We control and operate the SHAPE Site from our offices in the State of California, United States of America, and all information is processed within the United States. We do not represent that materials on the SHAPE Site are appropriate or available for use in other locations. Those who choose to access the SHAPE Site from outside the United States do so voluntarily and are responsible for compliance with their local laws.
- CALIFORNIA USERS – CONSUMER RIGHTS NOTICE. Under California Civil Code Section 1789.3, users of the SHAPE Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
You may also contact us in writing regarding any inquiries, questions about pricing, or complaints by mail at Model Shape, LLC Attn: Website Administrator, 512 N. Gower Street, Los Angeles, California 90004, U.S.A.; by email at email@example.com.
- TRADE SANCTION LAWS AND REGULATIONS. You understand and acknowledge that SHAPE is required to follow applicable trade sanctions laws and regulations in all jurisdictions where it conducts business, including the general prohibition on engaging with certain governments, entities, groups, or individuals, often referred to as Specially Designated Nationals (“SDNs”), blocked persons, and/or denied party(ies), that are suspected to, or have, engaged in, or otherwise supported, terrorism, narcotics trafficking, or other identified nefarious activities. You represent and warrant that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties.
- FEEDBACK. We welcome feedback, comments, and suggestions for improvements to the SHAPE Site (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. If you provide us any Feedback, you agree that we may use, copy, modify, create derivative works of, and otherwise exploit the Feedback for any purpose.