PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: August 16, 2018
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court.
NO ACCESS TO EMERGENCY SERVICES: There are important differences between Shapeyard and your mobile and fixed-line telephone and SMS services. Our Services do not provide access to emergency services or emergency services providers, including the police, fire departments, or hospitals, or otherwise connect to public safety answering points. You should ensure that you can contact your relevant emergency services providers through a mobile, fixed-line telephone, or other service.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SHAPEYARD WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the App, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them, but unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13. If you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected].
You will be required to sign up for an account, and select a password, Shapeyard avatar and user name (“Shapeyard User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Shapeyard User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
When you sign up for the Services, you will receive a message that contains a security code, which must be used to complete registration. BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM SHAPEYARD, AND YOU REPRESENT AND WARRANT THAT EACH PERSON YOU REGISTER FOR THE SERVICES OR FOR WHOM YOU PROVIDE A WIRELESS PHONE NUMBER HAS CONSENTED TO RECEIVE COMMUNICATIONS FROM SHAPEYARD. You agree to indemnify and hold Shapeyard harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Shapeyard’s) rights.
You understand that Shapeyard owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content. Please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
For all User Submissions, you hereby grant Shapeyard a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you share a User Submission via a private message to one or more other users (a “Limited Audience User Submission”), then you grant Shapeyard the license above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Shapeyard account, we will stop displaying your User Submissions (other than Limited Audience User Submissions, which may remain fully available to the users who you have communicated with through the App) to other users, but you understand and agree that it may not be possible to completely delete that content from Shapeyard’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users (such as Limited Audience User Submissions, which may be copied or stored on other users’ devices).
Finally, you understand and agree that Shapeyard, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
We appreciate your feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (“Feedback”), but you acknowledge that we may use your Feedback without any obligation to compensate you for it. All Feedback is non-confidential and will become the sole property of Shapeyard.
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Shapeyard, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here . To learn more about the DMCA, click here.
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or Content originated, and you access all such information and Content at your own risk. We aren’t liable for any errors or omissions in that informationor Content or for any damages or loss you might suffer in connection with that information or Content. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Shapeyard has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Shapeyard will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Shapeyard shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Shapeyard is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Shapeyard, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”
You are responsible for any mobile charges that you may incur for using our Services, including text-messaging and data charges. If you're unsure what those charges may be, ask your service provider before using our Services.
We’re always trying to improve the Services, so they may change over time. Our Services may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We may also suspend or discontinue any part of the Services, including certain features and the support for certain devices and platforms, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Any software that we provide may automatically download and install upgrades, updates, or new features. You may be able to adjust these automatic downloads through your device's settings.
The Shapeyard App is currently free, but you may purchase extra features, such as rare and exclusive Shapeyard avatars (“Features”) that can be used in the App by providing billing authorization though the platform in which you are using the App (e.g., Apple or Google). Purchases will be subject to those platforms’payment terms and conditions (Apple’s terms and conditions can be found here; and Google’s terms and conditions can be found here).Shapeyard is not a party to any purchases from Apple or Google, and we do not control how you can pay or how any refunds may be issued on those platforms. Please review those platforms’ terms of service for additional information.
YOU ACKNOWLEDGE THAT SHAPEYARD IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED FEATURES WHEN YOU DELETE THE APP, WHETHER SUCH DELETION WAS VOLUNTARY OR INVOLUNTARY, AND REGARDLESS OF WHICH PLATFORM ON WHICH YOU ARE USING THE APP, INCLUDING APPLE, GOOGLE, OR ANY OTHER SITES OR PLATFORMS WHERE WE MAY OFFER OUR SERVICES IN THE FUTURE.
Any promotions that provide access to any Features will specify the applicable terms and conditions of that promotion. Please review the terms of any promotions we offer carefully. Unless otherwise specified in the applicable promotion, promotions and use of any Features will be subject to these Terms.
Shapeyard is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms or your violation of any applicable laws, rules or regulations. Shapeyard has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account deletion will result in destruction of any Content associated with your account, so keep that in mind before you decide to delete your account.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
These Terms apply to your use of all the Services, including the iOS
applications available via the Apple, Inc. (“Apple”)
App Store, but the following additional terms also apply to the App:
Warranty Disclaimer. Neither Shapeyard nor its
licensors or suppliers make any representations or warranties concerning
any content contained in or accessed through the Services, and we will
not be responsible or liable for the accuracy, copyright compliance,
legality, or decency of material contained in or accessed through the
Services. We (and our licensors and suppliers) make no representations
or warranties regarding suggestions or recommendations of services or
products offered or purchased through the Services. Products and
services purchased or offered (whether or not following such
recommendations and suggestions) through the Services are provided “AS
IS” and without any warranty of any kind from Shapeyard or others
(unless, with respect to such others only, provided expressly and
unambiguously in writing by a designated third party for a specific
product). THE SERVICES AND CONTENT ARE PROVIDED BY SHAPEYARD (AND ITS
LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED
BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY
(INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR
OTHERWISE) SHALL SHAPEYARD (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO
YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS,
LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER
FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS
OF $100, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE
LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable
law, you agree to indemnify and hold Shapeyard, its affiliates,
officers, agents, employees, and partners harmless from and against any
and all claims, liabilities, damages (actual and consequential), losses
and expenses (including attorneys’ fees) arising from or in any way
related to any third party claims relating to (a) your use of the
Services (including any actions taken by a third party using your
account), and (b) your violation of these Terms. In the event of such a
claim, suit, or action (“Claim”), we will attempt to
provide notice of the Claim to the contact information we have for your
account (provided that failure to deliver such notice shall not
eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer
these Terms or your rights or obligations hereunder, or your Services
account, in any way (by operation of law or otherwise) without
Shapeyard’s prior written consent. We may transfer, assign, or delegate
these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be
construed under the Federal Arbitration Act, applicable federal law, and
the laws of the State of New York, without regard to the conflicts of
laws provisions thereof.
Arbitration Agreement. PLEASE READ THE FOLLOWING
ARBITRATION AGREEMENT CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE
CERTAIN DISPUTES AND CLAIMS WITH SHAPEYARD AND LIMITS THE MANNER IN
WHICH YOU CAN SEEK RELIEF FROM US. Both you and Shapeyard acknowledge
and agree that for the purposes of any dispute arising out of or
relating to the subject matter of these Terms, Shapeyard’s officers,
directors, employees and independent contractors
(“Personnel”) are third party beneficiaries of these
Terms, and that upon your acceptance of these Terms, Personnel will have
the right (and will be deemed to have accepted the right) to enforce
these Terms against you as the third party beneficiary hereof.
Miscellaneous. You will be responsible for paying,
withholding, filing, and reporting all taxes, duties, and other
governmental assessments associated with your activity in connection
with the Services, provided that the Shapeyard may, in its sole
discretion, do any of the foregoing on your behalf or for itself as it
sees fit. The failure of either you or us to exercise, in any way, any
right herein shall not be deemed a waiver of any further rights
hereunder. If any provision of these Terms is found to be unenforceable
or invalid, that provision will be limited or eliminated, to the minimum
extent necessary, so that these Terms shall otherwise remain in full
force and effect and enforceable. You and Shapeyard agree that these
Terms are the complete and exclusive statement of the mutual
understanding between you and Shapeyard, and that these Terms supersede
and cancel all previous written and oral agreements, communications and
other understandings relating to the subject matter of these Terms. You
hereby acknowledge and agree that you are not an employee, agent,
partner, or joint venture of Shapeyard, and you do not have any
authority of any kind to bind Shapeyard in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple
Application and the arbitration agreement, you and Shapeyard agree there
are no third party beneficiaries intended under these Terms.