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Skulpt Terms of Use

Last Updated: February 11, 2015

PLEASE READ THIS DOCUMENT CAREFULLY.

Skulpt, Inc. or Skulpt Europe, Ltd. (“Skulpt,” “we” or “us”) provides products and services, including, but not limited the Skulpt AIM device (“Device”), mobile application (“App”), related website (“Site”), the Skulpt Content (as defined below) and software embedded in the Device (collectively, the “Service”). THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Skulpt, INC. AND GOVERNS YOUR USE OF THE SERVICES. Subject to your acceptance of and adherence to these Terms of Use (the “Terms”), Skulpt grants you a limited, non-exclusive license to utilize the Services as set forth herein. The terms “you” and “user” shall refer to all individuals and entities that access the Services.

These Terms apply to your access and use of any part of the Service. If you do not wish to be bound by these Terms, do not use any part of the Service. If you are using Skulpt for iOS, the additional terms set forth in Section 16 apply to your use of the App. If you do not wish to be bound by those additional terms, do not use Skulpt for iOS.

IF YOU ARE A RESIDENT OF THE UNITED STATES OR ACCESS OR USE THE SERVICE IN THE UNITED STATES, BY ACCEPTING THESE TERMS, YOU ARE AGREEING TO THE ARBITRATION AGREEMENT (UNLESS YOU FOLLOW THE OPT-OUT PROCEDURE) AND CLASS ACTION WAIVER DESCRIBED IN SECTION 14 OF THESE TERMS TO RESOLVE ANY DISPUTES WITH Skulpt.

1. Who May Use the Service

You must be at least 18 years old to use the Service. By using any part of the Service, you agree and acknowledge that you have the right, authority and capacity to enter into these Terms and to abide by all of the terms and conditions of these Terms. Use of the Service and certain functionality of the Device may require a compatible mobile device and Internet access. Your ability to use the Service may be affected by performance of these items. You acknowledge and agree that all such system requirements, which may be changed from time to time, are your responsibility, and your mobile carrier’s standard charges, data rates and other fees may apply. Further, you agree to always use the most recent version of the Service made available by Skulpt.

2. Precautions

THE DEVICE AND ANY OTHER PRODUCTS OFFERED BY Skulpt ARE NOT MEDICAL DEVICES AND SHOULD NOT BE USED TO DIAGNOSE OR TREAT ANY MEDICAL CONDITIONS. Consult your doctor for prevention, diagnosis, and treatment. Content found through the Services is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Services. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. Do not use the Device or Services if you have a pacemaker.

The Service may contain information on worldwide products and services, not all of which are available in every location. A reference to a product or service on the Site does not imply that such product or service is or will be available in your location. The Device as well as any other products referred to on the Site may be subject to different regulatory requirements depending on the country of use. Consequently, visitors may be notified that certain sections of the Site are intended only for certain kinds of expert users or only for audiences in certain countries. You should not construe anything on the Site as a promotion or advertisement for any product or for the use of any product that is not authorized by the laws and regulations of your country of residence.

Use of the Service should not replace your good judgment and common sense. Skulpt has the right, but not the obligation, to monitor all conduct on and Content submitted to the Service.

3. License to Use the Service; Ownership

Skulpt Content” includes any 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 to you. Except for User Content (as defined in Section 9), Skulpt Content, the Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Skulpt Service.

Skulpt grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Skulpt Content, (2) access and use the Service, and (3) use the software that is embedded in the Device as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Service as permitted in these Terms.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Skulpt Content, the Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Skulpt or its licensors, except for the licenses and rights expressly granted in these Terms. Nothing in these Terms conveys to you any ownership, intellectual property rights or other proprietary interest in or relating to the Skulpt Content, the Service or any other Skulpt products or services, or any modifications or derivative works of any of the foregoing. The Skulpt Content and the Service are licensed, not sold, to you and are owned by Skulpt and its licensors. Except as expressly set forth herein, Skulpt reserves all right, title and interest, including all intellectual property and other rights, in and to the Skulpt Content and the Service and all other Skulpt products and services.

We welcome your comments, feedback, suggestions, and other communications regarding the Service (collectively, “Feedback”). While you are not obligated to provide Feedback, in the event that you provide Feedback, you hereby grant to Skulpt a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send Skulpt any Feedback that you do not wish to license to us as set forth above.

4. Privacy Policy

Please read our Privacy Policy for more information about Skulpt’s privacy practices at http://www.skulpt.me/privacy/.

5. Registration

To use certain functionality of the Service, you must register for an account (“Account”) by providing your full name, birthday, weight, height, gender, dominant side, email address and password. You may also upload a profile picture and link your Account to your Facebook account. You can stop sharing that information with us at any time by removing Skulpt’s access to that account.

By creating an Account, you expressly acknowledge and agree that:

You agree to take all reasonable precautions to protect your Account and notify us at [email protected] of any breach of security or unauthorized use of your mobile phone or Account.

6. Termination

If you breach any of the terms of these Terms, all licenses granted by Skulpt, including permission to use the Service, will terminate automatically. Additionally, Skulpt may suspend, disable, or delete your Account and/or suspend or terminate your access to the Service (or any part of the foregoing) with or without notice, for any or no reason. If Skulpt deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Service under a different name or with a different mobile telephone number.

You may cease use of the Service at any time. However, we will not automatically delete your Account information in case you decide you would like to rejoin the Service. If you want Skulpt to delete your Account and your address book information, you must email us with such request at [email protected].

All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by Skulpt or you, including without limitation Sections 6 through 17 inclusively. In the event of Account deletion for any reason, Skulpt may, but is not obligated to, delete any of your User Content (as defined in Section 9). Skulpt shall not be responsible for the deletion of (or failure to delete) such Content.

7. ORDERING FROM THE STORE

Additional Polices Applicable to Device Orders

The Skulpt Return Policy and Warranty available at www.skulpt.me/returns applies to purchases made through the Service. All orders placed are subject to Skulpt acceptance. We may accept, decline, or place limits on your order for any reason.

Orders
You can browse our products and place orders for our Devices through http://store.skulpt.me/ (the “Store”). To fulfill your order, we’ll ask you for certain information including your name, phone number, e-mail address, shipping and billing address. When you place an order, Skulpt’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order. You agree to make all payments in connection with any order placed by you. Skulpt does not view or store your credit card information. We collect and store your shipping address so we can process your order through our fulfillment partners. If you are logged into your Skulpt account when you purchase something from the Store, we associate that order with your Account. For more information regarding Skulpt’s data use practices please see the Skulpt Privacy Policy at www.skulpt.me/privacy.

When you place an order through the Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Devices purchased by you are for personal or gift use and not for commercial use.

Pricing
Skulpt can withdraw Devices and any other products from the Store at any time and for any reason. Prices listed through the Store, unless otherwise noted, are stated in U.S. dollars and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to Skulpt. You agree to indemnify and hold Skulpt harmless from and against any liabilities, interest, penalties or fees assessed against Skulpt arising from your failure to pay any such taxes. All Product prices are subject to change at any time.

Acceptance and Fulfillment
All orders are subject to acceptance by Skulpt. After you place an order, you will receive an email from Skulpt confirming that Skulpt has received it. Acceptance of your order will occur upon your receipt of another email from Skulpt containing a shipping, tracking and courier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing shipping, tracking and courier information. Skulpt reserves the right to restrict the quantities of your order or not to accept your order for any or no reason.

Resale
Purchases made through the Store are intended for end users only, and are not authorized for resale.

Shipping and Delivery
Skulpt will pack the Devices in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Devices ordered, and will be charged shipping and handling charges accordingly. Title to the Devices (except to the extent that the Devices consist of Software) and risk of loss will pass to you upon Skulpt’s delivery of the Devices to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Skulpt will make reasonable efforts to meet the scheduled shipment dates, but in no event will Skulpt be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.

RETURN POLICY
If you are unsatisfied with any Product purchased from the Store for any reason, you will have forty-five (45) days from the date of purchase to request a full refund. For full details on the return process, please see www.Skulpt.me/returns.

LIMITED PRODUCT WARRANTY
Skulpt warrants to the original purchaser that your Device shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase, except that if you reside in the European Economic Area (EEA) and you purchased your Skulpt product in the EEA, the warranty period is two (2) years from the date of purchase. In the event of valid claim of a hardware defect within the warranty period, Skulpt will, at its option and to the extent permitted by law, either (1) repair the Device at no charge, using new or refurbished replacement parts or (2) replace the Device with a new or refurbished Device. In the event of a defect, to the extent permitted by law, these are your sole and exclusive remedies. For full details on the Limited Product Warranty, please see www.Skulpt.me/returns.

COMPATIBILITY

You acknowledge that you have verified the compatibility of the Devices you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Device). You are solely responsible for determining the compatibility of the Devices with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Device and does not otherwise constitute a basis for receiving a refund after the 45 day refund policy identified above.

8. Consent to Communication

By using the Service, you agree that we may communicate with you electronically regarding administrative, security and other issues relating to your use of the Service. Communication will be made primarily through use of Short Message Service Text Messages to the mobile phone number used to register your Account. We may also contact you using email (if you have provided your email address) as well on Facebook (if you have linked your Account with your Facebook account). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You are responsible for any messaging or data fees you may be charged by your wireless carrier. To withdraw your consent from receiving electronic notice, please notify us at [email protected].

9. Content and Use Restrictions

You are solely responsible for the content, information, images, videos and text (“User Content”) that you post, upload, transmit, publish or display on or through the Service (hereinafter, “post”), or transmit to other users. You will not provide inaccurate, misleading or false information to Skulpt or to any other user. If information provided to Skulpt or another user subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. You will not post on the Service, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). Without limiting the previous sentence, you may not post any of User Content or use the Service in any way that:

  1. is patently offensive, such as User Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  2. intimidates, threatens, or otherwise harasses other users of the Service, or advocates harassment of another person;
  3. is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
  4. exploits people under the age of 18 in a sexual or violent manner, or attempts to collect personal information about any other user of the Service or any third party without such user or third party’s informed consent;
  5. contains sexually explicit content;
  6. provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
  7. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
  8. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
  9. promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
  10. contains or transmits viruses, corrupted data or other harmful, disruptive or destructive files or code;
  11. solicits personally identifiable information for commercial or unlawful purposes from other users;
  12. engages in commercial activities and/or sales including but not limited to contests, sweepstakes, barter, advertising, and pyramid schemes;
  13. infringes any third party’s copyrights or other rights (including but not limited to other intellectual property rights and privacy rights); or
  14. otherwise takes any action in violation of these Terms or Skulpt’s guidelines and policies.

Your use of the Service, including but not limited to the User Content you post on the Service, must be in accordance with any and all applicable laws and regulations. When you post, link or otherwise make available User Content to the Service, you grant us a nonexclusive, royalty-free, fully paid-up, perpetual, irrevocable, transferable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display, and otherwise exploit such Content throughout the world in any manner or media, on or off the Service.

10. Content Submission

You agree and acknowledge that: (i) you have the right to submit all User Content and Feedback to Skulpt and grant the licenses set forth in these Terms; (ii) Skulpt will not need to obtain licenses from any third party or pay royalties to any third party to use the User Content and Feedback in accordance with these Terms; (iii) the User Content and Feedback do not infringe any third party’s rights, including but not limited to intellectual property rights and privacy rights; and (iv) the User Content and Feedback comply with these Terms and all applicable laws.

Skulpt has no obligation to screen or monitor any User Content and does not guarantee that any User Content available on the Service complies with these Terms or is suitable for all users.

11. Third Party Rights; DMCA

General

Skulpt respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the User Content they upload to Skulpt does not infringe any third party copyright.

Skulpt, Inc. will promptly remove materials in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Skulpt, Inc. may, in appropriate circumstances, terminate the Accounts of repeat copyright infringers.

DMCA Takedown Notice

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

  1. Your name, address, telephone number, and email address (if any).
  2. A description of the copyrighted work that you claim has been infringed.
  3. A description of where the material that you claim is infringing is located on Skulpt, sufficient for Skulpt, Inc. to locate the material.
  4. A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
  5. A statement by you that the information in your notice is accurate and, UNDER PENALTY OF PERJURY, you are the copyright owner or authorized to act on the copyright owner's behalf.
  6. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

You may submit this information via:

  1. Email: [email protected]
  2. Offline: Skulpt, Inc.’s Copyright Agent (see below)

DMCA Counter-notification

If you believe that your material has been removed by mistake or misidentification, please provide Skulpt, Inc. with a written counter-notification containing the following information:

  1. a. Your name, address, and telephone number.
  2. A description of the material that was removed and the location where it previously appeared.
  3. A statement UNDER PENALTY OF PERJURY that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
  4. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which Skulpt, Inc. may be found (which includes the Suffolk County Superior Court), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person.
  5. Your electronic or physical signature.

You may submit this information via:

  1. Email: [email protected]
  2. Offline: Skulpt, Inc.’s Copyright Agent (see below)

Please note that we will provide complete counter-notifications to the person making the DMCA claim. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the disabled materials. Until that time, your materials will remain disabled.

Warning: In filing a DMCA notice or counter-notification, please make sure that you have complied with all of the above requirements. If we request additional information necessary to make DMCA your notice or counter-notification complete, please provide that information promptly. If you fail to comply with all of the requirements, your notification or counter-notification may not be processed.

In addition, please make sure that all of the information you provide is accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.

If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.

Skulpt Inc.’s Copyright Agent

You may send a DMCA notice, a DMCA counter-notification, or any inquiries concerning intellectual property to Skulpt, Inc.’s Copyright Agent:

Skulpt, Inc.
333 Bryant Street, Suite 330
San Francisco, CA 94107
Department – Copyright Agent
Email: [email protected]

12. Indemnification

You agree to indemnify and hold harmless Skulpt, its subsidiaries, affiliates, related parties, officers, directors, employees, agents, suppliers, independent contractors, advertisers, partners and co-branders from any loss, damages, or costs, including without limitation reasonable attorneys' fees, resulting from any third party claim, action, or demand resulting from your use of or access to the Service, your violation of any third party proprietary or other rights, or breach of these Terms.

13. Disclaimer of Warranties; Limitation of Liability

EXCEPT FOR THE LIMITED PRODUCT WARRANTY ON THE DEVICE DESCRIBED BELOW AND AT WWW.Skulpt.ME/RETURNS, Skulpt PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM 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. In addition, we make no warranty that the Service will meet your requirements or be available at any time or from any particular location, secure, or error-free, that defects will be corrected, or that the Service is free of viruses or other potentially harmful components. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Skulpt Content. You acknowledge and agree that if you rely on any Skulpt Content or the Skulpt Service, you do so solely at your own risk.

NEITHER Skulpt, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Skulpt 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. 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.

IN NO EVENT WILL Skulpt’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE LESSER OF (A) THE AMOUNTS YOU HAVE PAID TO Skulpt FOR USE OF THE Skulpt SERVICE, OR (B) ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Skulpt.

HE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Skulpt AND YOU.

In some jurisdictions, it is not permitted to limit certain types of liability and therefore such limitations to the extent they exclude such liability may not apply to you. IN SUCH JURISDICTIONS, Skulpt’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

14. Dispute Resolution, Arbitration and Class Action Waiver

Introduction

This Section 14 includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.

Informal Process First

You agree that in the event of any dispute between you and Skulpt, you will first contact Skulpt and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.

Arbitration Agreement

After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Services or any of Skulpt’s other services and/or products, including the Service, or relating in any way to the communications between you and Skulpt or any other user of the Service, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Skulpt. However, this arbitration agreement does not (a) govern any Claim by Skulpt for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.

Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Skulpt are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.

If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Skulpt, Inc., 333 Bryant Street, Suite 330, San Francisco, CA 94107. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.

The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. California law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.

If you do not want to arbitrate disputes with Skulpt and you are an individual, you may opt out of this arbitration agreement by sending an email to [email protected] within thirty (30) days of the first of the date you access or use the Service.

Class Action Waiver

Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.

If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Skulpt each waive any right to a jury trial.

15. Modification of the Terms

You agree that from time to time, Skulpt may (in its sole discretion) modify, add or remove any or all parts of these Terms. To update the Terms, Skulpt will post the changed version and indicate its effective date at the top of the Terms, as applicable. Such modifications will be effective immediately upon posting of the modified Terms. Each time you access or use the Service, you should check to see if the Terms or Privacy Policy has changed. Whether you do so or not, the Terms and Privacy Policy in effect at each time you access or use the Service will apply at such time. If we make any material changes, we will use commercially reasonable efforts to notify you, by means of a notice on the Service. Your continued use or access of the Service following the posting of changes to these Terms will indicate your acceptance of those changes.

16. Additional Terms for Skulpt for iOS

The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and Skulpt, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and Skulpt acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Skulpt acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Skulpt, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and Skulpt acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

17. Miscellaneous

These Terms are the complete and exclusive agreement between you and Skulpt with respect to the subject matter of these Terms, and they supersede all prior or contemporaneous, oral or written, proposals, understandings, representations, conditions, warranties, and all other communications between you and Skulpt with respect to the subject matter of these terms. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Skulpt without restriction. These Terms may not be explained or supplemented by any prior course of dealings or trade by custom or usage. These Terms shall be governed by the laws of the State of California, notwithstanding any principles of conflicts of law. The section headings used herein are for convenience only and will not affect the interpretation of these Terms. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms and neither party has any authority of any kind to bind the other in any respect.

18. Questions

Any questions, complaints or claims with respect to the Service should be directed to:

Skulpt, Inc. 333 Bryant Street, Suite 330 San Francisco, CA 94107

Email: [email protected]