END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is entered into by and between 3DShook LLC.(“Service Provider”) and the person, persons, entity, or entities described below (collectively “Licensee”).
Service Provider is the sole and exclusive owner of www.3dshook.com and holds all title, interest, and use rights in and to any websites, platforms, applications, and related properties (collectively “the Site”). Service Provider offers certain products and/or services on and through the Site (“the Services”).
Licensee wishes to access and use the Site and the Services pursuant to the terms and conditions set forth in this Agreement.
Accordingly, the parties agree as set forth below.
Licensee. Licensee includes without limitation:
The individual who physically clicks to accept the terms and conditions of this Agreement (“Accepting Individual”);
Any principal, whether a person or entity, who has vested actual or apparent authority in the Accepting Individual to accept the terms and conditions of this Agreement;
Any corporation, limited liability company, limited partnership, limited liability partnership, or professional entity, and any parent, subsidiary, and affiliate of same, that has vested actual or apparent authority in the Accepting Individual to accept the terms and conditions of this Agreement or otherwise ratified or knowingly benefited from such acceptance;
Any partnership of which the Accepting Individual is a general partner and any other partner of such partnership; and,
Any other person or entity that has vested actual or apparent authority in the Accepting Individual to accept the terms and conditions of this Agreement.
Effect of Clicking “Accept”. By clicking the “Accept” button (or a similar button) with respect to this Agreement, Licensee represents and warrants that it has read and understood, and agrees to be bound by, all of its terms. If the “Accept” button was not clicked no rights whatsoever with respect to this Site or the Services, including without limitation access or use rights, are vested in any person or entity.
The Site. The Site includes www.3dshook.com all of their constituent pages, all content on said websites and any constituent page, all URL’s associated with or which lead to said websites, all trade dress and monikers on said websites, all of Service Provider’s intellectual property contained anywhere on said websites (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, design elements, renditions, and copies of any of the foregoing. The Site further includes any and all amendments, modifications, and changes of any nature whatsoever to the foregoing.
Terms of Service. Access to the Site and the Services is provided pursuant to any Terms of Services (“TOS”) (1) set forth in this Agreement and (2) which may be posted on the Site, all as amended from time to time with or without notice to Licensee and which are incorporated herein as if repeated verbatim. In the event of a conflict between the TOS posted on the Site and those set forth in this Agreement, the former shall prevail. Licensee’s access and use rights to the Site and the Services are further subject to any guidelines or rules which may be posted on the Site from time to time. Any new features that augment or enhance the Site or the Services shall also be subject to this Agreement and the TOS.
Licensee’s Payment. Licensee shall pay Service Provider a monthly service fee as well as any amount due and owing for the purchase of any products sold on the site. Service Provider reserves the right to increase fees at any time and in its sole discretion. Payment must be made electronically; acceptable forms of remittance include credit card, debit card, and Paypal or a similar service. Checks and cash will not be accepted. Licensee shall provide Service Provider with a valid payment account (“Payment Account”) during purchase and hereby authorizes Service Provider to debit, charge to, or withdraw from the Payment Account all outstanding fees and charges due to Service Provider. Subsequent payment shall be processed automatically by Service Provider periodically for fees and immediately upon any purchase. In the event of dishonor, rejection, or a processing failure for any reason, Service Provider may, in its sole discretion and without prior notice, invalidate and void any such purchase and require access to a different Payment Account prior to consummating any transaction. Failure of consideration, including without limitation dishonor, rejection, or processing failure of any kind, shall excuse Service Provider from any other obligation with respect to such transaction, including without limitation manufacture, procurement, or delivery of any goods or services. All payments are non-refundable and Service Provider shall not be obligated to refund or reimburse Licensee for any reason.
Subscription Obligation. Licensee shall pay Service Provider the sum of $4.99 for a weekend membership; or $14.90 for a monthly membership; or $74.90 for a semi-yearly membership; or $99.90 for a yearly membership for access to the Site and for the use of the Services. Service Provider reserves the right to increase the service fee at any time and in its sole discretion. Products or services offered on the Site must be paid for separately from any monthly subscription and for the price set forth on the Site. Payment must be made electronically; acceptable forms of remittance include credit card, debit card, and Paypal or a similar service. Checks and cash will not be accepted. Licensee shall provide Service Provider with a valid payment account (“Payment Account”) during registration and hereby authorizes Service Provider to debit, charge to, or withdraw from the Payment Account on a periodic basis all outstanding fees and charges due to Service Provider as well as the consideration due for any products or services offered on the site. The first payment shall be remitted when Licensee signs up for the Services. Subsequent payment shall be processed automatically by Service Provider periodically for any subscription services and at the time of purchase for any product or service purchased on the website thereafter until this Agreement is terminated as provided herein. In the event of dishonor, rejection, or a processing failure for any reason, Service Provider may, in its sole discretion and without prior notice, suspend or terminate access to the Site or the provision of any of the Services, or require access to a different Payment Account prior to reinstating access to the Site or the Services. No product or service shall be delivered or rendered in the event that the payment therefor fails for any reason. All payments are non-refundable and Service Provider shall not be obligated to refund or reimburse Licensee for any reason, including without limitation termination of access to the Site or the Services prior to the expiration of any payment period or license.
Equipment. Licensee is solely responsible for providing the equipment necessary to access and use the Site and the Services, including without limitation any computer, printer, drive, software, hardware, application, modem, and internet connection. Service Provider shall not be responsible for (i) bad printer calibration, defective or misused filaments, defective printers or printers in poor condition, or printer settings; and (ii) any fees paid or accrued by Licensee to access the internet. Licensee acknowledges that all files will be downloaded in .stl format. Licensee shall hold Service Provider harmless from any damage to such equipment regardless of the cause of such damage. Licensee acknowledges that it order to print files it will need to slice them using third-party software provided by the printer manufacturer. Service Provider is not responsible for providing such software and makes no representation with respect to the applicability or quality of such software with respect to Licensee. Final print results may be affected by this third party software.
Content. All information, data, text, software, graphics, voice or sound files, photographs, videos, depictions, messages, emails, chats, text messages, documents, and other such materials (“Content”) of Licensee or any third party used on or transmitted by or through (i) the Site or (ii) the use of the Services shall be the sole and exclusive property of Licensee or such third party as appropriate. Service Provider does not warrant or guaranty the accuracy, integrity, quality, veracity, or appropriateness for any purpose of such Content, and shall be held harmless and indemnified by Licensee for any damages caused by or arising out of the use, reliance on, or application of the Content, including without limitation damages caused by errors, omissions, inaccuracies, negligence, misrepresentations, or fraud. Certain third parties may offer products and services through the Site. Each such third party is solely responsible for the products or services it offers. Service Provider makes no warranty, guaranty, or representation concerning the availability, quality, fitness, safety, or suitability of or with respect to any such product or service or of the person or entity that offers, provides, or sells such product or service and expressly disclaims any such warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose or merchantability. You agree to indemnify Service Provider and hold it harmless from any loss, liability, damage, injury, or cause of action caused by or attributable to, in whole or in part, any negligent, grossly negligent, reckless, intentional, or willful act or omission of such third party product or service provider.
Certain Use Restrictions. Licensee acknowledges that products procured from the Site are not suitable for children without an adult supervision and that FDM printed items are generally not considered food-safe by the FDA as they cannot be fully and properly cleaned unless printed using special filament. Licensee further expressly acknowledge and agree that Service Provider is an “all you can print service” and not unlimited download services of 3D models. Limits determined by the average calculations of time of print of every item downloaded apply. Fair usage of Service Provider services shall not surpass seven (7) plates per day. If Licensee surpasses these caps repeatedly it may be banned temporarily or indefinitely from using the Site or the Services.
Prohibited Content. Licensee shall not post on the Site, on its own behalf or on behalf of any third party, and shall not permit others to post on the Site, any Content that, in whole or in part: (a) Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, or hate speech; (b) misrepresents the actual identity of a person, or that misrepresents or falsely represents an affiliation with a person or entity; (c) constitutes advertising, promotional material, junk mail, spam, a chain letter, pyramid scheme, or an unauthorized solicitation; (d) is infected by or contains viruses, malware, spyware, worms, or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, program, or telecommunications equipment; (e) is likely to interfere with or disrupt the Site or the Services, or any server or network connected thereto, or contravenes any requirements, policies, procedures, or requirements of networks connected to the Site or the Service; (f) violates any federal, state, or local law, statute, regulation, rule, code, or ordinance, or otherwise applicable laws regarding transmission of technical data; (g) imposes an unreasonable or disproportionate workload on Service Provider, the Site, or the Services; or (h) constitutes the unauthorized of any trade mark, service mark. copyright, patent, trade secret, or other intellectual property of any nature whatsoever of a third party.
Prohibited Content – Screening & Removal. Service Provider shall not prescreen any Content but reserves the right to remove without notice any Content that Service Provider deems, in its sole discretion, to constitute Prohibited Content.
Changes to Content. Licensee acknowledges and specifically authorizes Service Provider to change, alter, or modify the Content as necessary in order to transmit it over one or more networks and to conform and adapt it, the Site, or the Services to any technical requirements of connecting networks, devices, hardware, software, and the like.
Disclosure of Content by Service Provider. Service Provider may preserve and disclose Content (i) when it is or reasonably determines that it is obligated to preserve and/or disclose Content pursuant to any applicable international law, treaty, federal, state, or local law, statute, code, rule, regulation, or ordinance; (ii) to comply with any legal process; (iii) to enforce the terms of this Agreement and any TOS; (iv) to respond to complaints or claims that the Content violates any third party rights; (v) to protect any right or property of Service Provider; and (vi) to protect the personal safety or property of any user of the Site or the Services.
Novelty Items. Service Provider offers novelty items for adornment, decoration, and amusement only. Nothing offered by Service Provider is intended or should be used in lieu or the place of any part, implement, piece, or other thing intended in whole or in part to protect, secure, harness, fasten, or protect the safety or well-being of any person or object. Licensee assumes all risk of injury from the misuse of any product obtain from the Site, and specifically indemnifies and holds Service Provider harmless from same.
Indemnification. In addition to any other indemnification obligations of Licensee as set forth in this Agreement, Licensee (“the Indemnifying Party”) shall indemnify and hold harmless Service Provider, its officers, directors, employees, shareholders, agents, partners, members, successors, and assigns (each “an Indemnified Person”) from and against any and all demands, claims, causes of action, losses, damages, liabilities, costs, and expenses (including, without limitation, attorneys’ fees) asserted by any third party against an Indemnified Person, resulting from any breach of the Indemnifying Party’s representations and warranties, any breach or non-fulfillment in the performance of the Indemnifying Party’s covenants and agreements, or negligence by the Indemnifying Party or an agent or independent contractor of the Indemnifying Party in connection with the performance of the Indemnifying Party’s covenants and agreements hereunder. Such indemnification obligation shall include without limitation claims and liabilities arising out of the transmission, use, or posting of Content; use of the Site or the Services; connection to and transmission of Content to or from the Site; Licensee’s violations of the TOS; and Licensee’s violations of any third party’s rights, including without limitation any third party’s intellectual property rights.
Storage of Materials. Service Provider does not warrant or guaranty continued access to any Content transmitted to or stored on the Site or used in any manner on the Site or as part of the provision of the Services, and this Agreement further expressly excludes any warranty that such Content will not be lost, damaged, or destroyed. Service Provider shall not maintain a copy, in whole or in part, of any Content, and further shall be held harmless in the event of a failure to properly store any Content.
Storage of Licensee Account Information. Service Provider assumes no responsibility for, and shall be held harmless in the event of, any injury or damage to Licensee arising out of the deletion of, failure to properly or timely deliver, and/or failure to accurately store any user communications, addresses, or personalization settings.
Service Modification. Service Provider may (i) establish general practices and use limits concerning the Site and the Services, (ii) limit the size of communications that may be transmitted through the Site and the Services, (iii) limit the amount of Content that may be stored or processed by Licensee on or through the Site, (iv) limit Licensee’s access to the Site as may be necessary and reasonable under the circumstances, (v) change or modify its general practices in its sole discretion and with or without notice to Licensee, (vi) change or modify the Site, the Terms of Service, or the Services in its sole discretion and with or without notice to Licensee, (vii) quarantine prohibited Content; (viii) modify domain and user settings in its sole discretion and with or without notice to Licensee (including without limitation modifications designed to eliminate spam or bulk mail); and (ix) modify, suspend, or discontinue the Site or the Services as necessary for routine maintenance, extraordinary repairs, or due to an attack by hackers or other third party.
Termination & Suspension. In the event of Licensee’s breach of any term of this Agreement or the TOS, Service Provider, in its sole discretion, may suspend or terminate Licensee’s account (including without limitation deactivation of Licensee’s password) and remove and discard the Content, and delete any records concerning or associated with Licensee’s use of the Site or the Services. Provided, however, that Service Provider shall give Licensee five (5) days written notice of any breach not involving failure of consideration and no such suspension or termination shall take place if the default is cured, in Service Provider’s sole discretion and to its satisfaction, within the five (5) day notice period. Service Provider may terminate Licensee’s account immediately in the event of any violation or anticipated violation of Sections 6 or 9 of this Agreement.
Service Provider’s Proprietary Property. The Site, the Services, and any software, hardware, platform, server, code, or other materials used in connection with the Site and the Services (collectively “the Proprietary Materials”) all of which are owned by Service Provider and/or its affiliates contain proprietary and confidential information not available to the public and protected by intellectual property and trade secret laws, including without limitation the Uniform Trade Secrets Act as well as trademark and copyright protections. Subject to Licensee’s continued compliance with the terms of this Agreement, including without limitation payment of all sums due hereunder, Service Provider hereby grants to Licensee a non-exclusive, non-transferable license to use the Site and the Services on a computer. Licensee shall not, by or through any representative, agent, employee, director, officer, shareholder, partner, member, or third party, reverse engineer, reverse assemble, attempt or purport to discover any source code; sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Proprietary Materials; copy, modify, rent, lease, loan, sell, distribute, or create derivative works of (or based on) the Proprietary Materials, in whole or in part; or use modified versions of the Proprietary Materials, including without limitation obtaining unauthorized access to the Site or the Services. Licensee may access the Site only through the interfaces provided by or through Service Provider.
Equitable Remedies Preserved. The parties acknowledge that any breach of (i) Service Provider’s rights in and to its Proprietary Property or (ii) the Confidentiality provisions of this Agreement are such that legal remedies alone would be insufficient to protect Service Provider’s rights and interests. The parties further agree that in the event of a breach or potential breach of either the Service Provider’s Proprietary Property or the Confidentiality sections of this Agreement, or both, Service Provider may petition any court of competent jurisdiction for a restraining order, injunction, or such other equitable remedy as it may deem appropriate, and Licensee expressly waives any defense to the inapplicability or inappropriateness of such equitable remedies.
Disclaimer of Warranties. Service Provider disclaims all warranties and guarantees.
USE OF THE SITE AND THE SERVICES IS AT LICENSEE’S SOLE AND EXCLUSIVE RISK. THE SITE AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
ANY GOODS OR TANGIBLE MATERIALS PROCURED OR OBTAINED THROUGH THE WEBSITE, REGARDLESS OF ORIGIN, MANUFACTURER, OR PRODUCER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SERVICE PROVICER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
SERVICE PROVIDER MAKES NO WARRANTY THAT (i) ANY INFORMATION OR ADVICE OBTAINED FROM THE USE OF THE SITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (ii) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED AS A RESULT OF THE USE OF THE SITE OR THE SERVICES WILL MEET LICENSEE’S EXPECTATIONS, AND (iii) ANY ERRORS THAT IMPAIR THE FUNCTIONALITY OF THE SITE OR THE SERVICES WILL BE REPAIRED.
LICENSEE ASSUMES ALL RISK OF LOSS FROM DAMAGE TO ITS COMPUTERS, SOFTWARE, HARDWARE, DRIVES, CODE, DATA, INFORMATION, CONTENT, INTELLECTUAL PROPERTY, AND OTHER PROPERTY OF ANY NATURE WHATSOEVER CAUSED IN ANY MANNER OR BY ANY METHOD FROM MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT USING THE SITE.
LICENSEE ASSUMES ALL RISK OF LOSS CAUSED BY VIRUSES, MALWARE, WORMS, OR OTHER PROGRAMS OR MATERIALS TRANSMITTED BY OR THROUGH THE SITE.
LICENSEE ASSUMES ALL RISK OF PERSONAL INJURY (INCLUDING WITHOUT LIMITATION DEATH) AND PROPERTY DAMAGE CAUSED BY THE OWNERSHIP, USE, AND OPERATION OF ANY EQUIPMENT, PRINTER, FILAMENT, PRINT BEDS, MACHINE PARTS IN ANY MANNER WHATSOEVER, AND HEREBY EXPRESSLY INDEMNIFIED AND HOLDS SERVICE PROVIDER HARMLESS FROM SAME.
Notice. Any notice required to be given to Licensee may be made, in Service Provider’s sole discretion, by posting same conspicuously on the Site or by email to any email address provided by Licensee. Notice to Service Provider shall be by U.S. Mail, correct postage affixed, to 3D Shook LTD., 26 Ben Avigdor Tel Aviv 615700 Israel.
Privacy. Licensee acknowledges that Service Provider may collect personally identifiable, confidential, proprietary, trade secret, intellectual property, business, financial, and similar information of Licensee (“Licensee Proprietary Information”). Except as set forth elsewhere in this Agreement, Service Provider shall not knowingly sell, rent, lease, transfer, or disclose any Licensee Proprietary Information unless (i) Licensee consents to such sale, lease, transfer, or disclosure; (ii) sale, lease, transfer, or disclosure by Service Provider is necessary to the provision of the Services; or (iii) as necessary due to Licensee’s breach of this Agreement or the TOS. Service Provider may change the provisions of this section as it deems necessary in its sole discretion and shall provide notice of same as mandated by this Agreement.
Security. Licensee is solely responsible for maintaining the security and integrity of all login information provided to it by Service Provider. Licensee shall indemnify Service Provider and hold it harmless from any claim, damage, cause of action, or liability which has accrued or may accrue due to any misuse, misapplication, misappropriation, or unauthorized use of any login information provided by Service Provider. Licensee shall promptly notify Service Provider of any unauthorized use of login information or security breach.
Force Majeure. Service Provider shall not be liable to Licensee in the event that the performance of any obligation of Service Provider hereunder is rendered impossible by any circumstance beyond its control and not created by its own act or omission, including flood, fire, and other natural disasters, war, riot or social unrest, work stoppage, act of terrorism, and Acts of God. Service Provider shall resume performance pursuant to the provisions of this Agreement upon the abatement of the force majeure.
Attorneys’ Fees. Service Provider shall be entitled to recoup from Licensee its costs, including without limitation its reasonable attorneys’ fees, in bringing or defending any lawsuit or other proceedings that concern in whole or in part the enforcement and/or interpretation of this Agreement.
Exclusion of Remedies. In no event shall Service Provider be liable to Licensee for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim or liabilities to third parties arising from any source, even if a party to this Agreement has been advised of the possibility of damages.
Waiver of Jury Trial. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, THE PARTIES HEREBY VOLUNTARILY AND KNOWINGLY WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY ISSUE AND IN ANY CAUSE OF ACTION.
Waiver, Merger, Modification & Severability; Survival of Provisions. Failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of a party at any time to avail itself of such remedies as it may have for any breach or breaches of such provision. Any Non-Disclosure and Confidentiality provision of this Agreement shall survive its termination and remain in full force and effect thereafter. The provisions of this Agreement are severable. Should any part or portion hereof be deemed void or unenforceable by a court of competent jurisdiction, the remaining parts and portion shall remain in full force and effect. This Agreement represents the entire understanding by and between the parties and supersedes any other representations, promises, or statements not wholly consistent herewith. This Agreement may only be modified by a writing signed by both parties.
Consideration. The parties acknowledge the receipt and sufficiency of the consideration set forth in this Agreement.
Forum Selection & Jurisdiction. This Agreement shall be construed pursuant to the laws of New York without regard to its conflict of law provisions. Any lawsuit brought to interpret or enforce the terms of this Agreement shall be filed in the appropriate state or federal court located in New York County, New York, USA. The parties hereby waive any defense of improper venue, lack of personal jurisdiction, or forum non conveniens.
Acknowledgement of Accepting Individual. The Accepting Individual warrants that he or she has read the foregoing Agreement, understands and acknowledges each of its provisions, has the authority to execute this Agreement on his or her own behalf as well as on behalf of any entity or third party signatory, and agrees on his or her behalf and on behalf of any entity or third party signatory to be bound by the terms and conditions herein.