Last Updated: July 7, 2017
These Pre-Order Terms and Conditions (“Terms”) govern the placing of pre-orders (“Pre-Order”) with Shaper Tools, Inc. (“Shaper,” “we” or “us”) for the Shaper Origin (“Product”). Please read these Terms carefully before submitting your Pre-Order for the Product. By submitting your Pre-Order, you agree to be legally bound by these Terms.
As explained in these Terms in more detail:
- PLEASE BE AWARE THAT THESE TERMS CONTAIN PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. (See Section 19)
- ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR PRE-ORDER WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- By submitting your Pre-Order, you are offering to purchase a Product from us. We may reject your offer and refund the Purchase Price (as defined below). (See Section 1)
- Specifications for our Products may change from the specifications currently published on our website. (See Section 4)
- The Product is being sold before it is ready to ship and thus shipping of the Products may be significantly delayed. (See Section 5)
- Any warranty we make available for our Products will be published before we accept your offer to purchase the Product, and you will have the opportunity to rescind your offer and receive a full refund of the Purchase Price if the warranty terms are not to your liking. (See Section 12)
- Certain product features require an active Internet connection and account on the Shaper Service (as defined in the Shaper Terms of Service). Use of the Shaper Service is subject to the Shaper Terms of Service. (See Section 10)
- Shaper’s liability is limited. (See Sections 1, 13, and 14)
- If you submit feedback or suggestions about our Products or Services, we may use your feedback or suggestions without restriction or obligation to you.
- Pre-Order and Acceptance. Each Pre-Order you submit for a Product constitutes an offer to purchase that Product. Pre-Orders are complete when you provide your shipping address to us. Completed Pre-Orders are subject to Shaper’s acceptance and may be rejected at any time prior to shipping and for any reason at Shaper’s discretion. If Shaper rejects your offer, Shaper will, as your sole and exclusive remedy and Shaper’s sole and exclusive liability, refund the Purchase Price as described in Section 4. Shaper will send an email to you at the email address provided by you once Products are shipping to indicate whether your Pre-Order has been accepted or rejected. If you have any questions, comments, or concerns regarding Shaper’s Pre-Order acceptance policy, or if you believe that your Pre-Order was rejected in error, please contact Shaper at email@example.com. When you place a Pre-Order for the Product, you will be required to provide certain information, such as your address and billing information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. Shaper shall have no responsibility or liability for inaccurate information or information that later becomes outdated and shall have no obligation to make efforts to determine the correct contact or shipping information. You can update your information at any time prior to shipment of the Product by sending an email to firstname.lastname@example.org.
- Eligibility. You must be at least 18 years old to offer to purchase a Product. By agreeing to these Terms, you represent and warrant to us that you are at least 18 years old. If you are offering to purchase a Product on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Payment. You will be charged the purchase price for the Product, including shipping charges and certain taxes (see Section 7), (the “Purchase Price”) at the time you place your Pre-Order for the Product. Your placing of the Pre-Order constitutes your express agreement for Shaper to charge your provided payment method at such time. Payment does not guarantee acceptance of your Pre-Order.
- Specifications; Refunds. You acknowledge and agree that the specifications for the Products may change prior to shipping. If you request a refund at any time before we accept your Pre-Order, we will refund the Purchase Price. Once we have accepted your offer, the policy in the immediately preceding sentence no longer applies. Instead, Shaper’s refund policy and limited warranty (“Limited Warranty”) will apply. The Shaper refund policy will be published on the Shaper website at the time when Shaper begins shipping Products (“Refund Policy”). For further information on Shaper’s Limited Warranty , please see Section 12 of these Terms. Once you place your Pre-Order, the Pre-Order is final, non-cancelable, and nonrefundable, except as specified in these Terms and in the FTC Rules (defined below) incorporated herein by reference.
- Shipping. The Product is being sold before it is ready to ship. We will provide the estimated date that your batch of Pre-Orders will start shipping on our pre-order page located at: https://preorder.shapertools.com. Orders will then be shipped on a rolling basis based on manufacturing capacity. When your Pre-Order is ready to ship, we will reach out to collect your shipping address. We estimate your Pre-Order will ship within thirty (30) days following receipt of your shipping address. The date provided for shipment of your Pre-Order batch to begin and any shipment date are estimates only, and the actual shipping date for any accepted Pre-Order will depend on a variety of factors including manufacturing schedule and capacity, the date of your Pre-Order, and when we solicit and receive your shipping address. If shipping costs for an accepted Pre-Order are higher than the shipping costs you paid at the time that you placed your Pre-Order, Shaper may, in its sole discretion, require you to pay additional shipping fees or to accept a refund of the Purchase Price.
- Transfer of Risk and Title. Risk of loss of the Product passes to you on Shaper’s delivery of the Product to the carrier, and you are responsible for any loss or damage to the Product from that point. Claims against a carrier for damage during shipping are your responsibility.
- Taxes. Except in the case of sales tax for residents of the State of Massachusetts, U.S.A., State of California, U.S.A., and the City and County of San Francisco, California, U.S.A., all import duties, taxes, and other charges are not included in the Purchase Price. These charges are your responsibility. Please determine what these additional costs will be prior to completing your Pre-Order. If you have already placed a Pre-Order and discovered that such taxes make your Pre-Order untenable for you, please contact Shaper Support to rescind your Pre-Order prior to acceptance, and we will refund the Purchase Price.
- Export Control. You acknowledge that Products may be subject to export control laws and other laws and regulations of the United States and other countries. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the US government; (ii) a person or entity barred by the US Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold Shaper harmless against all claims, damages, or liability resulting from breach of the foregoing.
- Use of the Product; Shaper Service. You represent that the Product you have offered to purchase is for your own use and not for resale. Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction, including air quality laws, noise control laws, and other health and safety laws. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with local laws, regulations, and ordinances. If you do not have sufficient information to determine whether your use of the Product will comply with all applicable laws, regulations, and ordinances, then you should not place a Pre-Order for the Product. If you rescind your offer prior to our acceptance of it, we will refund to you the Purchase Price. You must also use the Product in strict accordance with the user documentation provided together with the Product.
- Certain product features require an active Internet connection and account on the Shaper Service (as defined in the Shaper Terms of Service). Use of the Shaper Service is subject to the Shaper Terms of Service which will be published prior to the product shipping. If you violate the Shaper Terms of Service, you may not be able to use the Product or certain features of the Product.
- Intellectual Property. Shaper and its licensors own all intellectual property rights in the Products. Your use of the Product will be subject to the Shaper Terms of Service and other additional license terms and restrictions that will be provided together with the Product. Shaper reserves all rights in and to the Products not granted expressly in these Terms, the Shaper Terms of Service or other additional license terms. If you submit feedback or suggestions about our Products or Services, we may use your feedback or suggestions without restriction or obligation to you.
- Limited Warranty and Disclaimer. Shaper will be providing the details of its Limited Warranty for Products on Shaper’s website before Shaper accepts your offer to purchase. Your purchase of the Product will be subject to the Limited Warranty. If you are dissatisfied with the Limited Warranty once published, you may contact Shaper Support to rescind your Pre-Order and we will refund the Purchase Price. EXCEPT AS MAY BE EXPRESSLY PROVIDED BY SHAPER IN THE SHAPER TERMS OF SERVICE OR LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND SHAPER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL SHAPER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THE PRE-ORDER OR THESE TERMS OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SHAPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SHAPER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE PURCHASE PRICE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Force Majeure. Neither party shall be liable to the other for any failure to perform its obligations due to an event beyond the control of such party, including, but not limited to, any Act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of that party’s control, which causes the termination of an agreement or contract entered into, or which could not have been reasonably foreseen. Any party affected by such event shall inform the other party and use all reasonable endeavors to comply with these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order for your Pre-Order to remain valid. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Entire Agreement. These Terms represent the entire agreement governing your Pre-Order of the Product, and any prior agreements have no force or effect.
- Severability. If for any reason a court of competent jurisdiction finds any portion of these Terms to be unenforceable, the remainder of these Terms will continue in full force and effect.
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Shaper and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your Pre-Order or these Terms, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Shaper may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH SHAPER, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST SHAPER ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST SHAPER IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 2711 Centerville Road, Wilmington, DE 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Shaper will pay them for you. In addition, Shaper will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Shaper will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Shaper. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND SHAPER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Shaper are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in herein.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Shaper Tools, Inc., Attn: Joseph Hebenstreit, 274 Shotwell St., San Francisco CA 94110 or email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Shaper username (if any), the email address you used to set up your Shaper account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Shaper.
- Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Shaper makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Shaper.
- Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Shaper agree that all claims and disputes arising out of or relating to these Terms will be litigated exclusively in the state or federal courts located in San Francisco, California, U.S.A.
- Consent to Electronic Communications. The communications between you and Shaper use electronic means, whether you visit our website or send us emails, or whether we post notices on our website or communicate with you via e-mail. For contractual purposes, you (1) consent to receive communications from Shaper in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Shaper provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.