If you have any questions about these Terms of Service, please contact Shapa at [email protected].
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THE SITE AND SERVICES ARE NOT INTENDED TO PROVIDE LEGAL, HEALTH OR FINANCIAL ADVICE. YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” BUTTON, OR ACCESSING OR USING THE SITE OR THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR CONTENT.
If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
You may use the Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the Service using a device that is manufactured, distributed, or sold by or on behalf of Shapa; the Shapa mobile applications; authorized Shapa software; approved third-party applications; or www.myshapa.com. You may not connect to the Service with any device that is not manufactured, distributed, or sold by or on behalf of Shapa, or any unauthorized device, application or-third party connection.
The Site, Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Shapa and its licensors exclusively own all right, title and interest in and to the Site, Services and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Content.
Subject to your compliance with the terms and conditions of these Terms of Service, Shapa grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view and print any Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Content, except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Shapa or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service; and (ii) ”User Content” means any content that users (including you) provide to be made available through the Service. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Service.
As between you and Shapa, you represent that you own (or have all rights necessary to grant Shapa the rights below to) all User Content that you submit or have submitted to the Service, and that Shapa will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Shapa a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Service permission to view your User Content for their personal, non-commercial purposes. If you make or have made suggestions to Shapa or otherwise through the Service about improving or adding new features or products to the Service or you otherwise provide or have provided feedback, product or service reviews or testimonials, you hereby grant to Shapa a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
By inputting the four digit clinician code into a Shapa app, the End User consents to Shapa disclosing, providing, or sharing protected medical information with the Third-Party affiliated with the code. By consenting the End User agrees to waive any and all claims against Shapa pertaining to the use of the protected medical information by the Third-Party.
MyClearStep/Shapa may use, display, store, disclose or transfer Content as may be required or permitted by law or legal process or to protect Shapa’s rights or property (including, without limitation, enforcement of Shapa’s agreements) or the rights, property, or safety of any person or entity. Shapa may use, display, disclose or transfer protected medical information to third-party vendors who require access to such protected medical information in order to meet Shapa’s obligations.
For full use of the Service, you must register to create an account (“Account”) and become a “Member.” During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Shapa reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Shapa of any unauthorized use of your Account.
Shapa’s Terms of Sale and Return Policy and Warranty apply to purchases made through the Service. See Shapa’s return policy for more information.
You agree not to do any of the following:
Post, publish, submit or transmit any text, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances; Use, display, mirror or frame the Site, or any individual element within the Site, Shapa’s name, any Shapa trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Shapa’s express written consent; Access, tamper with, or use non-public areas of the Site, Shapa’s computer systems, or the technical delivery systems of Shapa’s providers; Attempt to probe, scan, or test the vulnerability of any Shapa system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Shapa or any of Shapa’s providers or any other third party (including another user) to protect the Site, Services or Content;Attempt to access or search the Site, Services or Content or download Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Shapa or other generally available third party web browsers;Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; Use any meta tags or other hidden text or metadata utilizing a Shapa trademark, logo URL or product name without Shapa’s express written consent; Use the Site, Services or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Content to send altered, deceptive or false source-identifying information; Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Content; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission; Impersonate or misrepresent your affiliation with any person or entity; Violate any applicable law or regulation; or Encourage or enable any other individual to do any of the foregoing. Shapa will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Shapa may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Shapa has no obligation to monitor your access to or use of the Site, Services or Content, or to review or edit any Member Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Shapa reserves the right, at any time and without prior notice, to remove or disable access to any Content, including any Member Content, that Shapa, at its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Site or Services.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at [email protected] or through the “Feedback” section of the Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Shapa and you hereby irrevocably assign to Shapa and agree to irrevocably assign to Shapa all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Shapa’s request and expense, you will execute documents and take such further acts as Shapa may reasonably request to assist Shapa to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
If you breach any of these Terms of Service, Shapa will have the right to suspend or disable your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. Shapa reserves the right to revoke your access to and use of the Site, Services and Content at any time, with or without cause. You may cancel your Account at any time by sending an email to [email protected].
UPON ANY TERMINATION OR CANCELLATION OF YOUR ACCOUNT, ANY INFORMATION THAT YOU ACCESS VIA THE SITE OR THE SERVICES WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SITE OR SERVICES
THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SHAPA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SHAPA MAKES NO WARRANTY THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS. SHAPA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SERVICES OR CONTENT OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
ANY INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SHAPA OR THROUGH THE SITE, SERVICES OR CONTENT, IS NOT INTENDED TO PROVIDE LEGAL, HEALTH OR FINANCIAL ADVICE AND WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU UNDERSTAND AND AGREE THAT ANY INFORMATION STORED ON OR ACCESSIBLE VIA THE SITE AND SERVICE IS STORED AND ACCESSIBLE AT YOUR OWN DISCRETION AND RISK AND THAT SHAPA WILL NOT BE RESPONSIBLE FOR ANY LOSS OF OR DAMAGE TO THE HEALTHCARE AND FINANCIAL INFORMATION OR ACCESS INFORMATION AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
Our goal is to provide helpful and accurate information on the Service, but we make no endorsement, representation or warranty of any kind about any Shapa Content, information, services or recommendations. The accuracy of the data collected and presented through the Shapa Service is not intended to match that of medical devices or scientific measurement devices. We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Service. If you rely on any Shapa Content or the Service, you do so solely at your own risk.
The Service is not intended to diagnose, treat, cure, or prevent any disease or medical condition. Use of the Service should not replace your own good judgment and common sense. If you have a medical or heart condition, consult your doctor before using the Service, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, diets, lifestyle tips or events you learn about through the Service. If you engage in any diet, training or exercise program you receive or learn about through the Service you agree that you do so at your own risk and are voluntarily participating in these activities.
You agree to defend, indemnify, and hold Shapa, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services or Content, or your violation of these Terms of Service.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT REMAINS WITH YOU. NEITHER SHAPA NOR ANY OTHER PARTY involved in creating, producing, or delivering the Site, Services or Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, arising out of or in connection with THESE TERMS OF SERVICE or from the use of or inability to use, the SITE, SERVICES OR CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not Shapa has been informed of the possibility of such damage, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
In no event will Shapa’s aggregate liability arising out of or in connection with THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Shapa AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
All trademarks, service marks, logos, trade names and any other proprietary designations of Shapa used herein are trademarks or registered trademarks of Shapa. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms of Service constitute the entire and exclusive understanding and agreement between Shapa and you regarding the Site, Services and Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Shapa and you regarding the Site, Services and Content.
Shapa reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of the home page of the Site. By continuing to access or use the Site or the Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Site and the Services.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Shapa’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Shapa may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (i) by Shapa via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Shapa agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains 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. You acknowledge and agree that you and Shapa 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. Further, unless both you and Shapa otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/active-rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration 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 AAA provides a form Demand for Arbitration and a separate from for California residents at https://www.adr.org/Forms.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. 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.
Arbitration Location and Procedure. Unless you and Shapa otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Shapa 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 reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. 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. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Shapa will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Shapa 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)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Shapa changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Shapa’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Shapa in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Shapa to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Shapa. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions about these Terms of Service, please contact Shapa at [email protected].
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