ShapeConnect Terms of Service
These Terms of Service and Use (“Terms”) govern your access to and use of applications, websites, content, products, and services (the "Services," as more fully defined below) made available in the United States and its territories and possessions by SHAPECONNECT INC. (hereinafter, “ShapeConnect”) and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "ShapeConnect," “We,” or “Us”). These Terms incorporate by reference all other agreements and Terms of Service, Use, and Policies applicable to your use of ShapeConnect Services.
1. Contractual Relationship
THE TERMS HEREIN CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND SHAPECONNECT. By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede any prior agreements or arrangements with you. ShapeConnect may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Our collection and use of personal information in connection with your access to and use of the Services is described in our Privacy Policy and is subject to our User Generated Content Policy.
Supplemental terms may apply to certain Services, such as policies for a particular engagement, program, or activity, and such supplemental terms will be disclosed to you in separate disclosures on ShapeConnect’s website or in connection with the particular Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
ShapeConnect may amend the Terms from time to time. Amendments will be effective upon Our posting of such updated Terms or in the amended policies or supplemental terms governing the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If ShapeConnect changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing ShapeConnect written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process (contact at 1 W. Monroe St, Chicago IL 60603, c/o ShapeConnect, or (b) by email from the email address associated with your Account [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms to which you agreed).
2. Services
The Services comprise website access, mobile applications, and related services (each, an "Application"), which enable Service users to arrange and schedule business transactions (“Solutions”) with both ShapeConnect and other users of Services under this Agreement ("Third Party User"). In certain instances, Services may also include an option to receive Solutions for an upfront price, subject to acceptance by ShapeConnect. However, unless otherwise agreed by ShapeConnect in a separate written agreement with you, such Solutions will not be performed, guaranteed, or in any way contracted for by ShapeConnect. Similarly, unless otherwise agreed by ShapeConnect in a separate written agreement with you, the Services are made available solely for your personal use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO ENGAGE IN, EXECUTE, OR EFFECTUATE BUSINESS TRANSACTIONS THROUGH THE USE OF THE Services DOES NOT ITSELF ESTABLISH SHAPECONNECT AS A PROVIDER OR PURCHASER OF Solutions. YOU ALSO ACKNOWLEDGE THAT ALL Service USERS ARE FULLY RESPONSIBLE TO FULFILL ANY AGREEMENT FOR A Solution, AS AGREED TO BETWEEN THEM AND OTHER USERS OF Services.
All users of Services agree that ShapeConnect is not legally liable for the satisfaction, performance, safety, or any aspect of a Solution agreed to with Third Party Users. You are fully responsible for reading and understanding the terms of any purchase or sale of Solutions through ShapeConnect Services before making an offer or bid or completing an agreement for a Solution through the use of ShapeConnect’s Services.
a. Provision of the Services.
You acknowledge that portions of the Services may be made available under ShapeConnect's various brands or request options. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of ShapeConnect's subsidiaries or affiliated entities; or (ii) independent third-party affiliates.
ShapeConnect does not guarantee a minimum number of “views” or “impressions” of content shared on the ShapeConnect platform. Additionally, ShapeConnect does not guarantee any financial benefits or awards from providing content or connecting Solutions through ShapeConnect Services.
b. Third Party Services and Content.
The Services may be made available or accessed in connection with third party services and content (including advertising) that ShapeConnect does not control. ShapeConnect does not guarantee the ownership, use, assignability, license, or any other exercise of rights over intellectual property by any user during the provision of Solutions by Third Party Providers to other Service users. Beyond use of the Services, ShapeConnect is in no way responsible for users’ exercise of intellectual property rights. ShapeConnect is not a party to any agreement for Solutions by and for users of Services and is thus not liable or responsible for any damages caused by an exercise of intellectual property rights by a user of ShapeConnect Services.
You acknowledge that different terms of use and privacy policies may apply to your use of such Third-Party Providers’ services and content. ShapeConnect does not endorse such services and content and in no event shall ShapeConnect be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
3. Access to and Use of Services - User Conduct
In connection with using our Services to provide or purchase Solutions to or from Third-Party Users, you will abide by the following conditions.
In connection with using our Services to sell Solutions to Third Party Users, you will abide by and under the following conditions.
4. Payment:
Your payment for Solutions connected through use of ShapeConnect’s Services ShapeConnect will be the responsibility of Service users who are solely and directly liable to the corresponding ShapeConnect Service user to whom the Service connects them, where an agreement for a Solution is executed between said users. ShapeConnect has no right to or responsibility for payment, billing, receipt, or other consideration exchanged between you and Third Party Users for Solutions provided between you and Third Party Users.Payment for Services provided to you will be solely and completely the obligation of you, and ShapeConnect will bill you according to a fee determined as a percentage of the agreement price for the agreement to provide and receive Solution(s), unless otherwise agreed. Fees shall be due and payable to ShapeConnect at the time the Solution is agreed to be provided to or by you, according to a separate agreement between ShapeConnect and you. NO FEES FOR SERVICES SHALL BE DUE OR PAYABLE UNTIL AND UNLESS THERE IS AN EXECUTED AGREEMENT BETWEEN YOU and A Third Party User TO PROVIDE A SOLUTION FOR CONSIDERATION.
If it is discovered that any Service users were connected through ShapeConnect’s Services and engaged in an agreement to provide and receive Solutions, without paying the percentage service fee to ShapeConnect, the Solutions seller will owe damages as agreed to in a separate agreement.
5. Property Ownership, Use, and Content
a. Ownership.
The Services and all rights therein are and shall remain ShapeConnect's property or the property of ShapeConnect's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner ShapeConnect's company names, logos, product and service names, trademarks or services marks or those of ShapeConnect's licensors.
b. License.
Subject to your compliance with these Terms, ShapeConnect grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal use. Any rights not expressly granted herein are reserved by ShapeConnect and ShapeConnect's licensors.
c. Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by ShapeConnect; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
d. User Provided Content and Information
Any content provided by you (“User Content”) to ShapeConnect for use on ShapeConnect’s platform shall be owned by and/or fully able to be exercised and published by you. Any use of such content or information provided by you including your tradename, logo, imagery, and likeness,is with full rights to be exploited by ShapeConnect in the provision of ShapeConnect’s Services and the operation of ShapeConnect’s platforms and online presence. The same may be used by ShapeConnect in its advertising or marketing of Services to current and prospective Service users and to the public.
6. Arbitration Agreement
By agreeing to the Terms, you agree that you are bound to solely resolve any claim that you may have against ShapeConnect on an individual basis in arbitration, as set forth in this Arbitration Agreement, and by no separate means, including any class, collective, or representative action against ShapeConnect.
You and ShapeConnect agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and ShapeConnect, and not in a court of law.
You acknowledge and agree that you and ShapeConnect are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and ShapeConnect otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and ShapeConnect each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
a. Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with AAA rules then in effect, except as modified by this Arbitration Agreement. The rules are available at https://www.adr.org/Rules.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Delaware.
b. Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in a state of the United States and will be selected by the parties. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
c. Location and Procedure.
Unless you and ShapeConnect otherwise agree, the arbitration will be conducted in Chicago, Illinois. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and ShapeConnect submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a exchange of information by the parties, consistent with the expedited nature of the arbitration.
d. Arbitrator's Decision.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. ShapeConnect will not seek, and hereby waives all rights ShapeConnect may have under applicable law to recover, attorneys' fees and expenses incurred during the course of arbitration proceedings, if ShapeConnect prevails in arbitration.
e. Fees.
Your responsibility to pay any filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $5,000, ShapeConnect will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
f. Amendments.
Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if ShapeConnect changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing ShapeConnect written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to the Registered Agent of ShapeConnect for service of process, 1 W. Monroe St. Chicago IL 60603 c/o ShapeConnect, or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and ShapeConnect in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
g. Alternative Forum
To the extent that any of this provision is found to be unenforceable or unlawful and any claims must proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
7. Disclaimers
a. Limitation of Liability
ShapeConnect shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the Services, regardless of the negligence (either active, affirmative, sole, or concurrent) of ShapeConnect, even if ShapeConnect has been advised of the possibility of such damages.
ShapeConnect shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the services or your inability to access or use the Services; or (ii) any transaction or relationship between you and any third party provider, even if ShapeConnect has been advised of the possibility of such damages. ShapeConnect shall not be liable for delay or failure in performance resulting from causes beyond ShapeConnect’s reasonable control. you acknowledge that Third Party Providers users providing Solutions requested through our Services may not be professionally licensed or permitted.
The Services may be used by you to request and engage in business transactions with third parties, but you agree that ShapeConnect has no responsibility or liability to you related to any resultant Solutions provided, other than as expressly set forth in these terms.
The limitations and disclaimer in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law. Where a jurisdiction does not allow for the exclusion of or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, ShapeConnect’s liability shall be limited to the extent permitted by law. This provision shall have no effect on ShapeConnect’s choice of law provision set forth below.
TO THE FULLEST EXTENT PERMITTED BY LAW, SHAPECONNECT’S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY CUSTOMER TO SHAPECONNECT HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
b. Indemnity.
You agree to indemnify and hold ShapeConnect and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) ShapeConnect's use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
c. Warranties
The Services are provided "as is," to the fullest extent permitted by law, except as expressly stated in the agreement.Neither ShapeConnect nor any of its Third Party Uses make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement. Client is responsible for using the Services in accordance with the terms set forth herein and backing up any stored data provided on or through the Services.
d. Beta Services
i.Use In Customer's Discretion. Despite anything to the contrary in the Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same Security Measures and auditing to which the Services have been subjected; and (e) SHAPECONNECT WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK.
ii.Feedback. ShapeConnect offers Beta Services in order to get user feedback. In exchange for using Beta Services, Customer Agrees that ShapeConnect may contact Customer and its End Users to obtain feedback regarding Beta Services. Customer agrees to: (i) and hereby does, assign to ShapeConnect all right, title, and interest in any feedback; and (ii) provide ShapeConnect any reasonable assistance necessary to document and maintain ShapeConnect's rights in the feedback. This feedback may include oral or written comments, suggestions, error reports, and analysis.
iii.Confidential. Beta Services are confidential until officially launched by ShapeConnect. Customer will take reasonable measures to keep information regarding the Beta Services confidential, including at least those measures Customer takes to protect its own confidential information of a similar nature. Customer will not disclose information regarding Beta Services to any third parties and will keep new features and functionality confidential until officially launched by ShapeConnect. Customer may disclose information regarding Beta Services to the extent required by law or regulation if Customer gives ShapeConnect reasonable advance written notice, to the extent permitted, so ShapeConnect can seek to prevent or limit the disclosure.
8. Miscellaneous
a. Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Delaware persons to assert claims under Delaware law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Delaware law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Delaware law to you if you do not otherwise reside in Delaware. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
b. Notice
ShapeConnect may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to ShapeConnect, with such notice deemed given when received by ShapeConnect, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o ShapeConnect. The name and current contact information for the registered agent in each state are available online here.
c. Severability and Survival.
If any portion of this Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Agreement or the parties’ ability to compel any remaining provisions.
d. Signature and Email Terms of Service
You understand that by agreeing to the following, You are consenting to ShapeConnect sending unencrypted emails electronically to the email address You provide to confirm Your agreement with ShapeConnect’s Terms.You also understand that ShapeConnect is not responsible for unauthorized access of emails while transmission to an email address You provide.