Terms of Use

Your use of www.getshapely.com and any of our other websites, mobile applications, our Chatbot function and services, or other services, both online and offline, provided by or through Zaghi Medical, Inc. d/b/a Shapely (“Shapely”) that link to or utilize our websites, applications and services (the “Website and Services”) is governed by these terms and conditions of Website and Services use (“Terms”).  Your use of the Website and Services and, in particular, your participation in any health and/or wellness program accessible through or a part of the Website and Services may be subject to additional policies, rules, consent forms, statements of rights, and/or conditions (“Additional Terms”). These Additional Terms are incorporated herein by reference, and by accessing or using any aspect of the Website and Services or using or participating in any aspect of the Website and Services, you agree to also comply with the Additional Terms. In the event of a conflict between these Terms and any supplemental terms provided as part of the Additional Terms for a specific portion of the Website and Services, such supplemental terms of the Additional Terms shall control with respect to your use of that specific portion of the Services or Services.

Please read these Terms very carefully and in their entirety before using the Website and Services. By accessing or using the Shapely Website and Services, you are acknowledging that you are over eighteen (18) years of age, that you have read, understand and agree, without limitation or qualification, to be bound by these Terms, and that you have read and understood the terms and conditions of Shapely’s Privacy Policy. Shapely provides the Website and Services to supply general information about Shapely and its products and services, including online telehealth medical consultations and secure messaging between Shapely service providers, other healthcare professional and you, their patients. You may use this Website and Services subject to your compliance with these terms and conditions and your accessing and using the Website and Services evidences your explicit agreement to follow and to be bound by these terms and conditions. If you disagree with these terms and conditions, do not use this Website and Services.

Privacy Policy. Shapely is committed to respecting the personal privacy of the individuals who use this Website and Services. The Privacy Policy posted on this Website describes Shapely’s current policies and practices with regard to the personal information collected by Shapely through this Website and Services. The Privacy Policy is part of these terms and conditions. When you agree to be bound by these terms and conditions, you are consenting to the collection, use and disclosure of your personal information in accordance with the Privacy Policy on this Website and Services. Please take a few minutes to review this policy which can be found here.

Registration, passwords and security. Under circumstances where this is applicable, any username and password for this Website and Services or any of its elements chosen by you or provided to you as part of the registration process are for the use of you personally and may not be used by anyone else. You are entirely responsible for providing us with accurate, complete and updated registration information about yourself and maintaining the confidentiality of your username and password. You represent and warrant that you are an individual of legal age in your state of residence to enter into a binding contract. If you are using or participating in the Website and Services as a personal representative of another person, such as a person’s parent, guardian, conservator or custodian (“Family Member”), you agree to these Terms on behalf of such Family Member and you represent and warrant that you have legal authority to do so and to provide consent for the treatment of the Family Member.

You may 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. Shapely operates subject to state and federal regulations, and some Services may not be available in your state or country. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Services is limited exclusively to users located in states within the United States where the Services are available and in which Shapely is transacting business. Accessing the Services from jurisdictions where content is illegal, or where Shapely does not offer Services, is prohibited. 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.

Furthermore, you are entirely responsible for all activities that occur on this Website and Services using your username and password, whether or not the activities or the use of your password was authorized by you. You must notify Shapely immediately of any known or suspected unauthorized use of your username and password or any other breach of security.

Registration Information. In any instance where you have provided user information as part of any registration process, you must notify Shapely promptly if any of the information that you provided changes, or if you become aware that any of the registration information is inaccurate or incomplete. Notwithstanding your obligation to provide Shapely with updated registration information, Shapely has the right to rely on the registration information that you previously provided until such time as you have provided Shapely with updated user registration information. You further agree that Shapely may provide notices related to these terms and conditions or to this Website and Services by e-mail using the latest e-mail address you have supplied to Shapely.

Right to change Website and Services. Shapely reserves the right to alter the content and functionality of this Website and Services in any way, or to limit access to this Website and Services, or to shut down this Website and Services temporarily or permanently, at any time, for any reason, without prior notice, and will not be liable in any way to you or your company for possible consequences of such changes or shut down.

Programs and Services. Health care professionals (“Providers”) employed or contracted by Shapely may utilize the Website as a way to provide and coordinate access to certain health care services for you. You may use the Services to connect via telehealth with Providers, or to access other Shapely Services. Providers provide medical services on behalf of Shapely and each Provider exercises independent medical judgment in the delivery of care or advice. Shapely does not exercise control or direction over the means, methods or manner by which any Provider exercises professional judgment in the provision of Services. THE SERVICES ARE NOT, AND SHOULD NEVER BE USED AS, A SUBSTITUTE FOR EMERGENCY MEDICAL CARE. IF YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE THINKING ABOUT SUICIDE OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911.

Providers provide certain health care services via the Website using interactive audio, video, messaging and other communication and media technologies. You may have an opportunity to develop ongoing care relationships with Providers; however, your initial encounter may begin as a consultation (e.g., to determine the appropriateness for you to participate in the Services) and will not necessarily give rise to an ongoing treatment relationship with any particular Provider. For example, a Provider may determine that the Services are not appropriate for you or all of your treatment needs, and any Provider may elect to not provide certain clinical services or otherwise provide the Services to you through the Website. Your Provider reserves the right to deny care for potential misuse of the Services or for any other reason including if, in the professional judgment of your Provider, the provision of the Services is not medically or ethically appropriate.

In addition, Providers may prescribe prescriptions for medications available from pharmacies separate from Shapely. In each case, you may incur additional costs related to such tests or prescriptions. Providers may also rely on information and materials you provide through the Services, including information and materials you may have received from your other health care providers.

The Services may include the provision of telehealth services.  Telehealth involves the delivery of health care services using electronic communications, information technology, or other means between a health care provider and a patient who are not in the same physical location. Telemedicine may be used for diagnosis, treatment, follow-up and/or related patient education, and may include, but is not limited to:

• Electronic transmission of medical records, photo images, personal health information, or other data between a patient and health care provider;
• Interactions between a patient and health care provider via audio, video, and/or data communications; and
• Use of output data from medical devices, sound, and video files.
  

The electronic systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information and will include measures to safeguard your data to ensure its integrity against intentional or unintentional corruption or unlawful access. 

Language NOT YET to be included. WILL INCLUDE WHEN WE form new management company: Similarly, Shapely is not responsible for the quality or appropriateness of the care any Provider renders to you. Providers who deliver the Services through this Website may be independent professionals practicing within a group of independently owned professional practices. Shapely does not offer medical advice or diagnoses, engage in the practice of medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Shapely does not employ or in any way supervise or control the Providers providing care to you, and Shapely is not responsible for the quality or appropriateness of the care the Providers render to you.‍

In order to use or otherwise participate in certain of the Services, you must agree to the Consent to Telehealth and acknowledge receipt of the Notice of Privacy Practices. As mentioned above, your ability to use or participate in the Services may require you to agree to Additional Terms.   These Additional Terms are hereby incorporated into these Terms by reference and constitutes a part of these Terms.

Prescription Policy. Shapely does not endorse any specific medication, pharmacy, or pharmacologic product. If a Provider prescribes a medication, he/she will only prescribe a medication as determined in his/her own discretion and professional judgment. There is no guarantee a prescription will be written. Providers do not prescribe DEA controlled substances or scheduled medications, or certain other drugs which may be harmful because of their potential for abuse. Providers reserve the right to deny care for actual or potential misuse of the Services.  Shapely and its Providers fully honor patient freedom of choice and, if you receive a prescription for a medication, you always have the option to instruct Shapely and/or the Provider to transmit that prescription to the pharmacy of your choice.

Communications by Text Message and Email. By opting-in to receive text (SMS) messages from Shapely, you consent to receiving text messages regarding your account and use of the Services. These text messages may include order confirmations, shipping notifications, messages from your healthcare provider, and other transactional messages, as well as promotional and marketing notifications, to the extent you have opted-in to receive such messages from Shapely.

You also understand that while Shapely takes your privacy and the security of your health and other sensitive information very seriously, the transmission of information over the internet and mobile networks is not 100% secure. Text messages and emails that you send to or receive from Shapely may not be encrypted, which means that it is possible they may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email, you do so at your own risk. 

User Information. Anything you post, upload, share, store, or otherwise provide through the Website or Services, including without limitation text, photos, audio, code, instructions, requests, ideas, suggestions, comments, forms and agreements, files, videos, images and other materials is your “User Information”. You are solely responsible for all User Information you contribute to the Website or Services. You represent that all User Information submitted by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.

User Information Licenses. The following licenses are subject to our Privacy Policy to the extent they relate to User Information that is also your personally-identifiable information and our Notice of Privacy Practices to the extent they relate to Protected Health Information. Subject to the preceding, in order to display your User Information on the Website and Services, as applicable, and to allow other users to use and access them (if and where applicable), you grant Shapely certain rights in your User Information (see below for more information). By submitting, posting, or displaying User Information through the Website and Services, you grant Shapely a perpetual, irrevocable, worldwide, royalty-free, fully paid, sublicensable, transferable and non-exclusive license to use, reproduce, adapt, modify, aggregate, translate, publish, publicly perform, publicly display, distribute, edit, reformat, prepare derivative works of and otherwise fully exploit such User Information in connection with the Website and Services and Shapely’s (and their successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Website and Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services to the extent permitted by applicable privacy laws. Such information may be used for any purpose, including, without limitation, reproduction, solicitation, disclosure, transmission, publication, broadcast, and posting. Shapely shall be free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Shapely or its Providers via the Services or by any other means for any purpose whatsoever, including, without limitation, developing and marketing products using such information. For clarity, the foregoing license grants do not affect your other ownership or license rights in your User Information, including the right to grant additional licenses to your User Information, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

Finally, you understand and agree that Shapely, in performing the required technical steps to provide the Services to Shapely users (including you), may need to modify your User Information to conform and adapt such User Information to the technical requirements of connection networks, devices, services, or media; the foregoing licenses include your permission to make any such required technical modifications.

Copyright notice and limited license. Everything you see and hear on this Website and as part of the Services (the “Content”), including, for example, all of the text, photographs, illustrations, graphics, audio clips, video clips, and audio-video clips, is copyrighted. You are granted a non-exclusive license to the Content subject, however, to the following limitations:

You may download, store, print, copy and share Content from this Website and Services, provided you:

(1) only use the Content for noncommercial use or to further your business dealings with Shapely;

(2) only publish or post any part of the Content on any other internet site or in any other media in a similar context to that in which it is presented on this Website and Services;

(3) attribute the Content to Shapely;

(4) do not modify or alter the Content in any way or delete or modify any copyright or trademark notices or notices of confidentiality.

Except as expressly stated above, you may not copy, download, print, publish, display, perform, distribute, transmit, transfer, translate, modify, add to, update, compile, abridge or in any other way transform or adapt all or any part of the Content of this Website and Services without first obtaining written permission from Shapely.

Except as expressly stated above, you may not copy, download, print, publish, display, perform, distribute, transmit, transfer, translate, modify, add to, update, compile, abridge, frame, inline, link or deep-link with regard to any other publicly available site or in any other way transform or adapt all or any part of the Content of this Website and Services without first obtaining written permission from Shapely.

Intellectual Property and Trademark Notice. As between you and Shapely, Shapely shall have sole and exclusive ownership of all right, title, and interest in and to this Website and Services, including, without limitation, the design, features, functionality, navigation, content, and "look and feel" of this Website and Services, and all data collected through this Website and Services, including, without limitation, all intellectual property rights associated therewith, such as all copyrights, patents, trademarks, trade secrets, and know-how.

All content of this Website and Services is protected by United States and/or foreign copyrights and other intellectual property rights, and all rights remain with Shapely. All of the trademarks, service marks and logos displayed on this Website and Services (the “Trademark(s)”) are registered and unregistered trademarks of Shapely, one of its affiliates, or third parties who have licensed their trademarks to Shapely or one of its affiliates.

Except as expressly stated in these terms and conditions, you may not reproduce, display or otherwise use, reprint or publish text, images, graphics or other Content of this Website and Services or any Trademark without first obtaining Shapely's written permission. Any Content, information or materials provided by Shapely on this Website and Services is at the user/customer’s own risk, and each user/customer must review its own use of our products and services for suitability for the intended purpose or the necessity of obtaining any applicable intellectual property licenses.

Unsolicited ideas. Shapely welcomes your comments and feedback regarding this Website and Services and our products. All information and materials submitted to Shapely through this Website and Services, such as any comments, feedback, ideas, questions, designs, data or the like, will be considered non-confidential and non-proprietary. For this reason, we ask that you not send us any information or materials that you do not wish to assign to us, including, without limitation, any confidential information and any original creative materials.

By submitting communications and/or materials to Shapely through this Website and Services, you assign to Shapely, free of charge, all worldwide rights, title and interest in all copyrights and other intellectual property rights in the information and/or materials you submit to Shapely. Shapely will be entitled to use any information and/or materials you submit through this Website and Services, and any ideas, concepts, know-how or techniques contained in any such information and/or materials, for any purpose whatsoever, included but not limited to developing, manufacturing and marketing products using such information or materials without restriction and without compensating you in any way.

However, Shapely will not use any information or materials you submit through this Website and Services in a way that may violate applicable privacy laws.  In particular, Shapely will not release your name or otherwise publicize the fact that you submitted information or materials to us unless: (a) we obtain your permission to use your name; or (b) we first notify you that the materials or other information you submit to a particular part of this Website and Services will be published or otherwise used with your name on it; or (c) we are required to do so by law.

You are responsible for the communications you submit through this Website and Services, including, without limitation, their truthfulness and accuracy. Please note that your submissions (e.g. via our contact form) do not have any legally binding effect on Shapely. Therefore, invoices, reminders and the like must be exclusively sent to the addresses set forth in the respective contract.

Third-party information. Some of the information, articles and other materials available through this Website and Services are provided to Shapely by third-parties. Wherever practical the source of these third-party materials is identified. These third-party materials are provided for your interest and convenience only. Shapely does not warrant or represent that these materials are current, accurate, complete or reliable. Shapely accepts no responsibility for any use to which third party information is put.

Links to other Shapely websites. This Website and Services contains hyperlinks to other websites operated by Shapely or other Shapely entities ("Other Shapely Website and Services(s)"). These Other Shapely Websites are separate and distinct websites. Each serves a different purpose. Each Other Shapely Website and Services is therefore governed by its own terms of use and its own privacy statement. If you access Other Shapely Websites through links on this Website and Services, please take a few minutes to review the terms of use and privacy statement posted on each Other Shapely Website and Services you visit.

Links to other third-party websites. This Website and Services contains hyperlinks to websites that are not operated by Shapely. These hyperlinks are provided for your reference and convenience only, and do not imply any endorsement of the material on these third-party websites or any association with their operators. Shapely does not control these websites and is not responsible for their contents. You access and use these websites solely at your own risk.

Product and Services Information. Any information contained or referenced in this Website and Services is solely provided as an introduction to Shapely and its products and services. For specific advice and instructions related to our products and services, please contact Shapely directly. Persons intending to use a Shapely product or service must read and follow the detailed product and service information accompanying that product or service and comply with all applicable laws and regulations relating to the use of that product. Before using any Shapely product or service, it is the responsibility of the user to ensure that it is registered for use in your country.

Disclaimer of Warranties. Shapely, the Providers and their respective licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Shapely, the Providers and all such parties together, the “Shapely Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Website and Services, and the Shapely Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Website and Services or any claims, actions, suits, procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Website and/or Services. 

The Shapely Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. Services purchased or offered (whether or not following such recommendations and suggestions) are provided “AS-IS” and without any warranty of any kind from the Shapely Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). 

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, THE WEBSITE, SERVICES AND CONTENT ARE PROVIDED BY SHAPELY (AND THE PROVIDERS AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF 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 WEBSITE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SHAPELY MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE WEBSITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE AND/OR SERVICES WILL MEET YOUR EXPECTATIONS OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. 

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE AND/OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL; NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SHAPELY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS; AND YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONAL INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. 

SPECIFICALLY, SHAPELY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF ELECTRONIC OR TELECOMMUNICATION SERVICES AND ACCESS TO THE ELECTRONIC OR TELECOMMUNICATION SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE ELECTRONIC OR TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE ELECTRONIC OR TELECOMMUNICATION SERVICES. SHAPELY DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, SHAPELY SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN OR USE OF THE SERVICES. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR PROVIDERS OR THROUGH THE WEBSITE AND/OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

IF YOU ARE FROM THE STATE OF NEW JERSEY, THE FOREGOING ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

If any of these limitations of liability is found to be invalid or unenforceable for any reason, then the aggregate liability of the Shapely Parties under such circumstances for liabilities that otherwise would have been limited shall not exceed one hundred ($100.00) dollars.

Any general advice posted or provided as part of the Services is for informational purposes only and is not intended to replace or substitute for any medical or other advice. To the maximum extent permitted by law, Shapely disclaims any representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the general information offered or provided within or through the Services. If you have specific concerns or a situation arises in which you require medical advice, you should consult with an appropriately trained and qualified medical services provider.

Global availability. Because different countries around the world have different laws and regulatory requirements, some products, programs or services may be available in some countries and not in others. This Website and Services may contain references or cross references to Shapely products, programs and services that may not be available or announced in your country. These references do not imply that Shapely intends to announce such products, programs or services in your country. Consult your local Shapely representative or contact Shapely if you have questions about which products, programs and services may be available to you.

Contact us. The “Chatbot” feature of some Shapely Websites allows you the opportunity to send related questions to our team members via email. This feature is provided for your convenience. We use your personally identifiable information that is collected via the Chatbot Services primarily for the following purposes: To deliver services; To alert you to special offers, updated information and other new products or services from Shapely, or other third parties, or to forward promotional materials to you; To complete a transaction or service requested by you; To ensure the Chatbot services are relevant to your needs; To help us create and publish content most relevant to you; To notify you about a material change to this or other applicable policies, if necessary; and To contact you in response to sign up forms such as Contact Us or other inquiry. The usefulness of our response to your question depends on the completeness and the accuracy of the information on which it is based and other factors beyond our control, such as weather. You are solely responsible for evaluating the value and usefulness of our response.

Some Shapely Websites will post representative questions and answers that we believe may be of interest to other registered users. Please do not include any confidential, proprietary or personally identifiable information in your question. We reserve the right to edit questions for clarity or length. Please review the section of these terms and conditions regarding submissions before sending us any information.

Indemnification. You agree to indemnify and hold the Shapely Parties 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 claims relating to: (a) your use or misuse of the Website and/or Services (including any actions taken by a third party using your account); (b) your violation of these Terms; (c) the content or subject matter of any information (including without limitation User Information) you provide to any Shapely Party; (d) any negligent or wrongful act or omission by you in your use or misuse of the Website and/or Services, including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct; and/or (e) your failure to comply with any applicable laws or regulations. 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). The Shapely Parties reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting the Shapely Parties’ defense of such matter.

Governing law and jurisdiction. The laws of the United States and the State of Delaware govern these Terms, without reference to choice of law rules.  Any legal action or proceeding related to this Website and Services shall be brought exclusively in a state court of competent jurisdiction sitting in California. Any offer for any product or service made on this Website is void where prohibited by law.

Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Shapely and limits the manner in which you can seek relief from Shapely. Both you and Shapely acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Shapely’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.

(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in the City of Los Angeles, State of California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Shapely will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(c) Small Claims Court; Infringement. Either you or Shapely may assert claims, if they qualify, in small claims court in the City of Los Angeles, California. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any 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.

(d) Waiver of Jury Trial. YOU AND SHAPELY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Shapely are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Shapely over whether to vacate or enforce an arbitration award, YOU AND SHAPELY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Shapely is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Zaghi Medical, Inc. d/b/a Shapely, 5665 W. Wilshire Blvd., #1609, Los Angeles, CA 90036 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Shapely to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Shapely agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Los Angeles, California, or the federal district in which that county falls.

(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Shapely.

Waiver. Our failure at any time to require performance of any provision of these terms and conditions or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing and signed by the party to be bound. Unless the written waiver contains an express statement to the contrary, no waiver by Shapely of any breach of any provision of these terms and conditions of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these terms and conditions.

Severability. If any provision of these terms and conditions is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these terms and conditions shall remain in full force and effect.

Entire agreement. These terms and conditions constitute the entire agreement between you and Shapely with respect to your access to and/or use of this Website and Services. These terms and conditions shall not be amended except as expressly set forth herein.

These terms and conditions may change. Shapely reserves the right to update, amend or modify these terms and conditions at any time without prior notice. Shapely will do so by posting an updated or modified version of these terms and conditions on this Website and Services. Your use of this Website and Services following any such change constitutes your agreement to follow and be bound by the revised terms and conditions. For this reason, we encourage you to review these terms and conditions every time you use this Website and Services.