Terms and Conditions of Service

Terms and Conditions of Service
Newshape Applications Platform

LAST UPDATED ON: June 16th 2022

 

1. LEGAL AGREEMENT

These Terms and Conditions of Service ("Terms and Conditions") cover your use of and access to our sites www.newshape.app including but not limited to the following websites www.newshape.io and www.wenewshape.com as well as your subscription to and any Order of our services, products, goods, applications, tools, offline components and features, including eCommerce solutions (individually the "Service" or collectively, the "Services") provided by our company Newshape, headquartered at Ahmad Al Jaber St., B8 Tower,4th Floor, Sharq (KUWAIT CITY, KUWAIT), together with its affiliates, officers, directors, employees, staff, agents and subsidiaries (hereinafter "Newshape", "we", "our" or "us").

Our Privacy Policy, available at https://www.newshape.io/weshape-privacy/ explains what personal information and personal data we collect and how it is used and shared. The Terms, the Privacy Policy and the Cookie Policy all set forth the entire Terms and Conditions applicable to each visitor or user ("User" and/or “Customer” or "you") of our website and Services, applications and features offered by us with respect thereto, except where we explicitly state otherwise. as well as your subscription to and any Order of our services, products, applications, tools, offline components and features, including eCommerce solutions (individually the "Service" or collectively, the "Services") provided by our company SAS Newshape, together with its affiliates, officers, directors, employees, agents and subsidiaries (hereinafter "Newshape", "we", "our" or "us").

Our Privacy Policy, available at https://www.newshape.io/weshape-privacy/ explains what personal information we collect and how it is used and shared. The Terms and the Privacy Policy all set forth the entire terms and conditions applicable to each visitor or user ("User" or "you") of our website and Services, applications and features offered by us with respect thereto, except where we explicitly state otherwise.

Newshape and its affiliates reserve the right at its sole discretion to change, modify, add or remove any part of these Terms and Conditions of Services ("Terms") at any time.

A written information may be sent by email (if provided by the User to Newshape and its affiliates) before any modification, deletion, adjunction or removal to the Terms and Conditions of Services ("Terms") intervene.

In any case, your continued use of the Newshape website and/or Services following the posting of any changes will mean that you accept and agree to the changes or modifications without expressing any objection. As long as you comply with these Terms of Use, Newshape grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Newshape website and/or Services.

The date at the top of this document will tell you when this document has been updated for the last time.

By using or accessing the Services, you are agreeing to these Terms, cookie policy and our Privacy Policy (collectively, this "Agreement"). If you're using our Services for an organization or on behalf of a business entity, you're agreeing to this Agreement on behalf of that organization, and represent and warrant that you can do so. If you do not agree to or approve all the terms in this Agreement, you may not use or access any of the Services of Newshape and therefore you must stop using all of our Services immediately.


2. DEFINITIONS

The following terms shall have the following meaning:
“Application(s)” or “Service(s)” : alternatively means any type of interface/implementation allowing the User to deliver to its End-Users any type of contents.

“Application Store” or “App Store”: means any type of digital shops provided by “Platforms” on mobile devices, computers or any other digital devices to download for free or not any kind of applications made available to the public by Newshape’s Users.

“Apple Pay”: means the transactional service hosted and managed directly by Apple Inc. to allow financial transactions within mobile applications or directly on websites. Newshape has no link at all with Apple Inc. or with any of its affiliates regarding the use of Apple Pay and hence has no liability or responsibility regarding Apple’s operations or business.

“Author” : any physical person or moral entity using Newshape’s Service."BackOffice": the embedded web app allowing the User to create, review, personalize, modify, delete and send to Newshape and finally to publish on Application Stores his application or his PWA.

“Blog”: Internet Web site enabling the publishing of content and the drafting of commentaries by the readers with an Internet diffusion.

“Cookie”: means a small piece of text file that is put on the Users or End-User computer or mobile device to allow a website to remember choices, personalization requests and to keep this information in memory for a certain limited time in accordance with laws and regulations.

"Customer Service": the assistance service that helps the User regarding but not limited to any technical issues or assistance, invoice issues, payment regarding the subscription or any kind of assistance initiated through email or chat regarding how the service works or how the service can be used by the User.

"Data Controller": means any entity that determines the purposes and means of the processing of personal data.

"Data Protection Law": means all data protection and privacy laws or regulations applicable to the processing of personal data or personal information.

“Data Processor”: means any entity that treats or processes data or personal information for the Data Controller.

“Data exporter”: means the controller who transfers the personal data or personal information.

“Data importer”: means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf.

"Data Protection Officer (DPO)": means the natural person or entity or any Sub-processors in charge of compliance regarding both European Union Regulation (GDPR) and National Regulation and dealing with the treatment and processing of personal data or personal information.

“Editor”: means the natural or the legal entity that creates, develops and makes available to its “End-Users” any service using the Newshape “BackOffice”.

“End-User”: Any natural person who actually uses our Client’s Service(s). For the avoidance of doubt, means the final client of Newshape’s client, hence the actual User of the application developed by Newshape’s client on the “BackOffice”.

"European Union Data Protection Law": means since the 25 May 2018 Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”) and Directive 2002/58/EC modified by directive 2009/136/CE (November 25th 2009) concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable to national implementation of it.

“Google Pay”: means the transactional service hosted and managed directly by Google Inc. to allow financial transactions within mobile applications or on websites. Newshape has no link at all with Google LLC. or with any of its affiliates regarding the use of Google Pay and hence has no liability or responsibility regarding Google’s operations or business.

“Guest”: any person being invited by a User of the Service to provide or drop comments or publish as an Author, under the exclusive Client’s responsibility.

"iBeacon" or “beacon”: iBeacon or beacon is a miniaturised network device that uses Bluetooth Low Energy (BLE) also known as Bluetooth 4.0 and acts as a relay to detect or track any smartphone or mobile device appearing within a determined range. The iBeacon or beacon can send pre-registered notifications in the application to the device in range. Newshape shall have no responsibility or liability regarding the delivery or the failure in delivering notifications to End-Users as the delivery of the notifications is done directly by the device manufacturer (ie Apple or Google).

"In App-Purchase (IAP)": means commercial transactions that take place directly within an application. These transactions can include monthly subscriptions to access premium content. These financial transactions are handled by Third-Parties payment processors.

“Mercado Pago”: means a third party digital solution allowing digital payment to be done via credit cards or any other digital payment method within the Latin America area (LATAM). Newshape has no link at all with Mercado Pago or with any of its affiliates regarding the use of Mercado Pago and hence has no liability or responsibility regarding Mercado Pago’s operations or business.

“Order”: online subscription of our Service(s).

“Platform”: means a provider of a hosting service which at the request of a recipient of the service, stores and disseminates to the public information including applications or services.

"Personal Data": means any information or data relating to an identified or identifiable natural person as defined by article 4.1 GDPR.

“Progressive Web App (PWA)”: means a web app that behaves and acts as if it was a mobile application but directly accessible to the “End-User” through an internet navigator and connection without any download or installation process.

“PayPal”: means the transactional service hosted and managed directly by PayPal Inc. to allow financial transactions within mobile applications or on websites. Newshape has no link at all with Paypal Inc. or with any of its affiliates regarding the use of PayPal and hence has no liability or responsibility regarding PayPal’s operations or business.

“Push notification”: an automated message sent to a registered mobile device, when the application is not open, to communicate any kind of information to the End-User regarding the use of a service.

“Stripe”: means a third party digital solution, owned and developed by Stripe Inc., allowing digital payments to be made via credit cards or any other digital payment solution. Newshape has no link at all with Stripe or with any of its affiliates regarding the use of Stripe’s solutions and hence has no liability or responsibility regarding Stripe’s operations or business.

"Subscription": any payment done one time or on a monthly or annual basis to access Newshape’s restricted services. The User can then access and use restricted features, extensions or options proposed within the “BackOffice”.

“Sub-processor”: means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities.

“User Content”: any kind of content uploaded by you, including but not limited to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, drawings, literary works and any other tangible or intangible materials.

“User”: any natural person or moral entity having an account allowing access and use of to our Services or using the free trial period to access or use our Services.


3. PURPOSE AND SCOPE

Newshape provides an online service composed of tools enabling the User to create its own Application(s) whether from an existing blog, website or from scratch and publish it through any relevant application store managed directly by Platforms or making it accessible from a web browser through PWAs. The Application allows for content publishing and in some cases eCommerce transactions to take place.

The use of the Service is submitted to the present Terms and Conditions which equally apply to any Users, End-Users, Authors and/or Guests.Newshape does not warrant the lifespan or the optimization of the Service for a said Internet browser nor for an operating system. Newshape doesn’t warrant the compatibility between an Application when such operating system and/or browser is upgraded, modified or discontinued.

The use of the Service requires the Client/User/End User/Author/Guest to subscribe to an internet connection with proper hardware whose costs are independent from the Newshape Service. Besides, in order to build an Application with Newshape’s solution, the Client may have to open at his own expense an account in an online Application store and subscribe to the developer account directly near one of the Platforms (such as, but not limited to Apple Inc. or Google LLC). The Client/User/End-User/Author/Guest will assume all the costs of such subscription and Newshape cannot be held responsible for any kind of damages, service unavailability or costs resulting from the relationship between the Platform and the Client/User/End User/Author/Guest.

As part of the use of the Service, Newshape may send the User a certain amount of information (newsletters, administrative mail, informative mail, invoices, etc.). This information is part of the subscription to the Service, Users cannot refuse it and these documents might be for example: legally required information, legally binding documents (contracts, invoices) or assistance messages. But in accordance with GDPR Regulation the User has the right to opt out and to withdraw its consent at any time (when applicable or relevant) from receiving any commercial communication such as newsletters by following the unsubscription link located at the end of every email.


4. SUBSCRIPTION TO OUR SERVICE – REGISTRATION AND ACCOUNT

4.1 In order to access and use certain sections and features of our Services, you must first register and create an account with us (hereinafter a "Newshape Account", “Account ID”, "User Account" or simply "Account").

4.2 If anyone other than yourself, a Guest, accesses and/or uses your User Account and/or related settings, you understand that they may perform any actions available to you, make changes to your Services and User Account, and all such activities will be deemed to have occurred on your behalf and in your name. Consequently, we strongly encourage you to keep your Access Codes and credentials confidential, and allow such access only to trusted people or trusted entities. If such happens to you, as the legal owner of the account, will be held responsible for any action taken on your account while you granted the access to any third party. Newshape cannot be held responsible for any deletion, adjunction, modification or any other action undertaken during this fraudulent access.

4.3 You must provide complete, accurate and updated information for your Account when registering your User Account and using our Services. We may need to use this information to contact you at any time. We strongly encourage you to provide your own (or your company’s) contact and billing details, including your valid e-mail address or any other contact details, as we may use it to identify and determine the actual and true owner of the User Account and/or Content submitted to us. Each Guest shall likewise fill in such identification form to be able to act on the Application.

4.4 You must immediately notify us of any actual or suspected loss, theft or unauthorised use or access of your Account or Access Codes. You're solely and entirely responsible for any activity on your Account or to any modification of your Services. Newshape shall not be liable for any acts or omissions done by you or by anyone in connection with your Account. You agree you will not give, sell, transfer, license or assign your account, username, or any account rights or credentials to anyone at any time. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers, staff or clients, you agree not to create an account or application for anyone other than yourself, business or your entity.

4.5 We reserve the right to determine ownership to a User Account based on our reasonable judgment, whether or not an independent investigation has been conducted by us. However, if we cannot make such a determination (as we may deem in our sole discretion), we reserve the right to terminate the Service to you, without liability to you or to any other party including End-Users.

4.6 You affirm that you are either over 18 years of age or that you have reach the legal majority in your country of residency, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent (i) to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, cookie policy and privacy policy, and (ii) to comply with them. In any event, you affirm that you are at least 16 years old, as the Service is not intended for or directed to anyone under 16. If you are under 16 years old, then you are prohibited from using this Service.

 

5. USER CONTENT AND RELATED USER’S OBLIGATIONS

You represent and warrant to us that:

5.1 You own all rights or that you possess all the authorizations in and to any content uploaded by you, including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content.

During the exploitation and use of your Services you are fully responsible for any damages resulting from any use or usage of your Application or Services or of any of its content. Also the User ensures Newshape that he has all the legally required authorizations and rights before giving public access to its Service. Moreover, by putting the content of the Application available to the public through the Platform the User grants Newshape that he will not infringe any third party intellectual property right by using any content (such as, but not limited to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, drawings, literary works and any other materials) without the right to do so from its legitimate owner or right holder. Newshape has the right to remove and to delete immediately and without prior notice or justification any content, Application, Service or any other type of content that infringes any of its policy or regulation as well as any applicable law or regulations.

5.2 The User Content is, at all time, true, current, updated, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit, use or display in the country or area in which you or your Application visitors and End Users reside, live, do business or download or use your Services.

5.3 You have obtained all consents and permissions required under all applicable laws and regulation, regarding the use, posting, transmission and publication of any personal information, personal data and/or image or likeness of any person, entity or property which is part of the User Content, and you will adhere, without any condition or restriction, to all laws or regulation applicable thereto.

5.4 You may not post ,or upload or use via our Service any defamatory, libellous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, or which otherwise violates the rights of any third party Service; this include but not limited to any content that is considered illegal in any country or area where the Service is made available to the public. Newshape will not be held responsible for any illegal content put on the Application or Service by the User or End-User.

5.5 You may not use the Service for any illegal or unauthorised purpose or more generally in a manner that would affect or disrupt Newshape’s reputation, e-reputation, interest or business, in the sole judgment of the Newshape’s evaluation team.

5.6 You agree to comply with all laws, rules and regulations (for example, federal, state, local , provincial, national law and regulations) applicable to your use of the Service and your Content, including but not limited to, copyright and trademark laws.

5.7 You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting, sending, using, but not limited to, worms, viruses, spyware, malware or any other code of a destructive or disruptive nature this include any type or form of cryptolocker program, wiper, ransomware or any kind of program that can disrupt, damage or interfere with Newshape activities or business. If the User or End-User discovers any type of threat, bug, leak, harmful program or issue regarding the security and data protection on the Newshape’s website or on the “BackOffice” or on any Application of Newshape he must inform, without delay, by email (hello@newshape.io) or through the contact form available on the website at https://www.newshape.io/contact-us/ the Customer Service or the DPO of such threat or data breach.

5.8 You must not create accounts with the Service through unauthorised means, including but not limited to, using an automated device, script, bot, spider, crawler or scraper. You must not use identity theft, identity fraud, third-party identity, mistaken identity or false identity to try to gain access or to access or use any of our Services.

5.9 You must not attempt to restrict another User or End-User from using or enjoying the Service and you must not encourage or facilitate violations of these Terms and conditions, Data Processing Agreement, cookie policy or privacy policy.

5.10 You agree not to disparage at any time the reputation, e-reputation, business or interest of Newshape.

You further agree:


5.11 To receive from time to time promotional messages, information and materials from us or our partners, by mail, e-mail or any other contact form you may provide us with. If you wish not to receive and unsubscribe at any time from such promotional materials or notices, in accordance with European Law such as the GDPR; Users are granted a right to unsubscribe at any time and without justification by clicking the link “Unsubscribe” at the end of the email containing the newsletter. Also the right to be removed from the sending list can be requested by sending a message to the Customers Service or directly to the DPO (hello@newshape.io) by filling the digital form available at: https://www.newshape.io/contact-us/ ;

5.12 To allow us to use in perpetuity, worldwide and free of charge, any version of your Application (or any part thereof) for any of our marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against us or anyone on our behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your Application with respect to such limited permitted uses;

5.13 Not to copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate or transfer to another service or platform, translate, compile, decompile or disassemble our Service, or any part thereof;

5.14 Not to purchase search engine or other pay per click keywords or domain names that use Newshape or Newshape Trademarks and/or variations and misspellings thereof;

5.15 Not to probe, scan, or test the vulnerability of any of our Services, Application or any network connected to our Services;

5.16 Not to take any action that imposes an unreasonable or disproportionately large load (such as, but not limited to DDoS attack) on the infrastructure of the Newshape Services or systems or networks connected to the Newshape Services, or otherwise interfere with or disrupt the operation of any of the Newshape Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;

5.17 Not to exceed Fair Use: all applications created with one subscription may not exceed more than a combined total of 150,000 requests per day to the Newshape APIs;

5.18 Not to remove or alter any copyright notices, terms and conditions, data processing agreement, cookie policy, privacy policy, restrictions and signs indicating proprietary rights of any of our licensors;

5.19 Not to use, copy -in whole or in part- any copyrighted materials and/or content provided by Newshape;

5.20 Not to reverse engineer or propose a service or a mere copy similar to Newshape, based on the Newshape technology such as offering a Do-It-yourself or a No-Code app building platform and/or service. You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination and/or deletion of your User Account and/or any Services provided to you by Newshape– with or without further notice to you, and without any refund of amounts paid on account of any such Services except refunds mandatory by any applicable law or regulation.

Newshape cannot be held responsible for the deletion, the correction, the destruction, the damage, the loss or the inappropriate hosting of any Content. Newshape may withhold, remove and/or get rid of Content, without notice.

Supplemental rules governing Users’ eCommerce services through the Newshape solutions (Apps and websites) – From Section 5.21 to 5.30

5.21 eCommerce Responsibility.   The Newshape Services may include features that enable Users to provide or sell goods, products and/or services (or a combination thereof) to, or otherwise collect payments from, End Users (hereinafter “eCommerce” solutions). Newshape has indeed developed specific state of the art tools to help its Users build and conduct eCommerce activities and business using some of the Newshape products, including but not limited to selling products and collecting sales proceeds through integrated third-party solutions including, but not limited to, Stripe, Paypal, Mercado Pago, Apple Pay and any offline payment methods including but not limited to cash payment, luncheon vouchers, checks or bank or wire transfer; it being understood and agreed that the use of any such third-party to process payments for eCommerce activities shall establish a contractual relationship between the Users and said third-party payment and Platforms processing services, and User hereby represents and warrants to abide by all applicable terms and conditions governing said relationship.

Newshape is also hereby reminding its Users that any eCommerce activities conducted through the Newshape solutions are and will remain the sole exclusive responsibility of the Users and that in no event whatsoever, shall Newshape be liable or responsible for any such eCommerce operations. Moreover, Users shall at all time ensure strict compliance with any applicable laws or regulations including, but not limited to, Anti-Money Laundering (AML) regulations, tax regulation, tax fraud and terrorism financing . Users will among other things be complying with any consumer, eCommerce and any other related laws or regulation including but not limited to Data Protection policy, regulation and cookie policy.

The User is solely and entirely responsible to consult, read, understand and keep a reliable and long lasting copy of the Terms and Conditions or of any other legally or contractually binding documents or information regarding its relationship towards Third Party payment solutions or processors or payment solutions provided by Platforms or Third Party.

The User is also solely and entirely responsible towards the End-Users regarding his commercial, civil relationship and liability, the User must deal with the End-Users of any issue, legal issue or legal action regarding eCommerce services, payment, or any other type of protest arising between the User and the End Users or between Third Party payment solution or any kind of other Third Party solution, processor or implementation.

5.22 Rules and regulation regarding Taxes in connection with eCommerce.  Newshape does not provide any tax, financial or legal advice to its Users or End Users, and no information provided by Newshape should be interpreted as such. Users shall be solely responsible for: (a) Taxes and fees associated with their eCommerce, including without limitation any Taxes related to the purchase or sale of products, goods or products, or services in connection with eCommerce; (b) collecting, reporting and remitting required Taxes to relevant government or tax authorities and entities; (c) informing their End Users of required or mandatory Taxes, and providing them with due invoices and tax documents as required by applicable laws and regulations; and more generally (d) implement, respect and enforce any necessary rules dictated by applicable regulation or law.

Newshape also disclaims any responsibility or liability regarding any tax estimates, reporting or related materials or information that Newshape may provide via its solutions and services; it being understood that said information shall be regarded as for “illustration purposes only” or “indicative”; therefore, as the case may be, no User shall solely rely on them to comply with their tax obligations or any other kind of obligation. The indications are given on a “as is”, “as available” and without any warranties from Newshape. Hence Newshape will not give any help and will not give any advice to User or End Users to fulfill their legal obligations, tax estimation, tax collection, tax declaration or any other kind of tax or business related matter; hence Newshape will not be held responsible for any kind of tax adjustment, tax declaration, tax related matter or tax legal action or financial issues that is undergoing between the User and the End User or between, but not limited to, local, national, federal tax administrations and the User and/or the End User.

5.23 Fulfilment of eCommerce-related Orders.   Users shall remain solely and entirely responsible for fulfilling and delivering their products, goods, and services to their End Users in accordance with local law and regulation, and Newshape shall have no responsibility or liability whatsoever regarding this matter.

5.24 Claims. Users shall be solely and entirely responsible for any claims or warranties made in connection with their eCommerce operations and any claims made by End Users against them. This includes, but not limited to, any claims regarding product conformity, refunds, rebates, product defect or malfunction, delivery issues, delivery of property, hidden defect, data privacy policy, data processing agreement, personal data, cookie policy or any other kind of issues regarding the relationship between the Users and the End User.

5.25 Customer Service.   Users shall be solely and entirely responsible for handling any eCommerce-related customer service or End Users complaints related to their eCommerce, including without limitation any issues related to payments, promotions, discounts, rebates and refunds or credit card chargebacks. Ecommerce Users agree to provide complete and accurate contact/identity information on their App or sites in order to facilitate the direct provision of comments or, as the case may be, complaints made by their End Users.

5.26 Users Terms of Sale and Users Privacy Policy.   Users agree to publish, make clearly available and keep up-to-date on their Apps and sites a clear and compliant privacy policy, data processing agreement, cookie policy, data protection policy, terms of sales and any other terms or policies that may be required by applicable law or regulation. Users further warrant that their eCommerce App or site will at all times comply with all applicable laws and regulations and will guarantee the due indemnification of Newshape.

5.27 Legitimate Restrictions.   Users shall not offer or sell any products, goods, items, or products or services which, in Newshape sole reasonable discretion: (a) can be considered hazardous, dangerous, counterfeit, stolen, fraudulent, illegal, abusive or adverse to Newshape’s best interests, business, e-reputation or reputation; (b) are generally prohibited for sale, distribution or use in the applicable territory or area; or (c) otherwise fail to comply with any applicable laws or regulations, including without limitation with respect to intellectual property, trade secrets, privacy or publicity rights, consumer protection, product safety or trade regulations or export controls, regulations or sanctions or trade embargo. This provision shall not be regarded as creating a monitoring or supervision obligation on the part of Newshape the Users is solely and entirely responsible regarding this matter.

5.28 eCommerce Apps Suspensions, Restrictions or Cancelations.   To supplement other similar provisions provided in these terms, Newshape hereby reasserts its legitimate right and option, at its sole and entirely discretion, and without any specific notice due to its Users, to suspend, restrict or fully disable access to/cancel, delete or remove a User account, App, site or more generally eCommerce service(s), without any liability to its related Users or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other similar tangible or intangible losses (except where mandatory by applicable law or regulation).

5.29 Third-Party Payment Processors. These Third-Party Payment Processors can be but are not limited to, Stripe, PayPal, Mercado Pago and any offline payment methods including cash payment, checks or bank or wire transfer.

In order to accept payments from End Users, Users may choose to use third party payment processors (“eCommerce Payment Processors”) into the Newshape solutions.

The relationship of said Users and End Users with such eCommerce Payment Processors shall therefore be governed by those certain eCommerce Payment Processors’ terms, data processing agreement, privacy policies, cookie policy and policies, which are hereby incorporated by reference.

eCommerce Payment Processors are and will remain a third party service, hence Newshape will have no liability or responsibility regarding this matter. While Newshape may try to provide reasonable advance notice, Users hereby agree that Newshape may, at all and any time and in its sole discretion, and without any specific notice to Users, suspend, restrict or disable/cancel/delete access to or remove from the Newshape services, any eCommerce Payment Processors or solution, without any liability to Users or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other tangible or intangible losses (except where prohibited by applicable law or regulation).

5.30 Offline payments methods.   These methods can be put in place by Users within the “BackOffice”. This includes, as payment methods, but not limited to, cash payment, checks, bank or wire transfers or luncheon vouchers. Such payment methods can be used while using click and collect, in store pick-up or local delivery methods or any kind of delivery services. These payment methods can sometimes require the payment of delivery fees in addition to the final cost of the order. The use of Offline payments is solely and entirely done under the full control of the User, hence Newshape is never involved in this payment processing and hence will not be liable or responsible at any time or under any circumstances for this relationship between the User and End-User. Newshape will not be able to handle any request regarding any kind of payments done between the User or the End-User.

DISCLAIMER OF WARRANTIES REGARDING NEWSHAPE TOWARDS ITS USERS AND END-USERS USAGE AS WELL AS IN CASE OF SERVICE DISRUPTION, SERVICE UNAVAILABILITY, BREAKDOWN INCLUDING IN-APP PURCHASES (IAP) DISRUPTION (LOSS OF SUBSCRIPTION, LOSS OF PROFIT, COMMERCIAL LOSSES, SERVICE DISRUPTION/INTERRUPTION):

5.31 You and your End-Users, as users of Newshape’s Services, agree that the use of Newshape’s services is performed and accessed at your sole and entire risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you, this includes the use of In-App Purchases (IAP). In accordance with applicable law and regulations, Newshape’s Services are provided to you and your End-Users “as is” and “as available” with all faults and without warranty of any kind or type. Newshape disclaims all warranties and conditions, including but not limited to, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment. Also Newshape disclaims all liability and responsibility regarding the fact that the operation done through its solution or application will be uninterrupted or error-free, that any services will be corrected or that its solution or application will work with third party software, network, device or application.

No oral or written information or advice given by Newshape or by any of its staff, employees or representative shall create a warranty either to its Users or End-Users.

To the extent not prohibited by any applicable law or regulations, Newshape will not be liable or responsible for any incidental, special, direct or indirect damages or losses, including, but not limited to, damages for loss of profit, corruption or loss of data or information, failure to transmit or receive data or information, business interruption, financial losses or any other kind of commercial damages or losses arising out of or related to your use or inability to use Newshape Services this include the use of our Services by you and by your End-Users.

Newshape shall have no liability or responsibility for the installation and/or use of any Services by any of your End-User. You shall be responsible and liable for all product warranties, assistance and product support towards your end-users. You are solely responsible and Newshape will not be liable nor responsible for all claims, losses, damages, costs and expenses arising from, but not limited to, any issues, technical difficulties, failures and so on regarding In-App Purchases (IAP) or financial transactions made between you and your End-User. You are solely and entirely responsible regarding any matter, issues or technical or financial difficulties including In-App Purchases (IAP) and service disruption and availability towards your End-Users. To that extent you, as the editor and provider of the Services towards your End-Users, will have the entire responsibility for dealing with any issue hence you will have to communicate to your End-Users all relevant and updated contact information to allow them to contact you directly regarding any kind of issues, technical, financial difficulties or service availability. In addition, you as the editor of the Services will deal with all the refunds, discounts or rebates that might be mandatory by law or regulation in case of service disruption or unavailability. Newshape will not be liable or responsible nor in charge of any refunds, discounts or rebates following the previous cases except if required by law or regulation. Newshape will not pay you back or send any refund or credit for any expense regarding this matter.

In addition to this disclaimer of warranties, Newshape will not endorse or assume any liability or responsibility for purchases, payments, subscriptions, transactions or any other kind or type of business or commercial activity made using the Newshape solution and/or application. You, as the User of Newshape’s solution, are entirely and solely responsible and liable towards your End-Users for any issues regarding In-App Purchases (IAP).

The case of force majeure as defined in Section 9 is also applicable to the previous cases as a limitation of Newshape’s liability and responsibility toward its User and your End-Users.

 

6. NEWSHAPE BEST PRACTICES AND MOBILE APPLICATION MANDATORY GUIDELINES

We do our best to make Newshape a great place to create beautiful and useful apps. We need your help to keep Newshape being a reputable and trusted service that provides value to all end users, partners and app stores. We therefore request that the following guidelines and covenants be respected at all times under any circumstances:

6.1 You shall not create unauthorised or unlawful or illegal commercial app (such as but not limited to, spam) with Newshape’s solutions.

6.2 You shall not create any app with content that may defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not use content using confidential information or illegally obtained or detained information, content or data;

6.3 You shall not create any app with Newshape to display violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic, paedophile, or sexually suggestive photos, videos or any other content of such type;

6.4 You shall not create an app with Newshape to spread any kind of propaganda, false rumours on any subject or fake news, governmental/institutional messages or political messages directly or indirectly related to war, war crimes, armed conflicts, conflits, politics, religion, ethics, terrorism or related to any international or private organisation. This includes any kind of information or messages that can intimidate, influence or corrupt people’s mind or people’s behaviour in any manner or circumstances.

6.5 You shall not create an app containing alcohol-related, dating or other mature content (including advertisements) without implementing appropriate age-based restrictions and/or restrictive access measures;

6.6 You shall not use Newshape to do anything unlawful, misleading, malicious, or discriminatory and you shall not use our services for any illegal or unauthorised purpose, including, but not limited to, any drug or illegal product related matter;

6.7 You agree to comply with all laws, rules and regulations (federal, state, local and provincial, national or any applicable regulations such as European Regulations (if applicable to you) but not limited to these);

6.8 You shall create an app that is useful and distinctive for the End-User and you shall therefore refrain from building an app that is simply a mere copy of someone else's work or a counterfeit service or application;

6.9 You will not use Newshape to flood mobile stores, application stores or the web with low quality apps, copy, derivative works, clones of a poor concept that do not bring any value to an audience.

In any of the previous cases Newshape will not be held responsible or liable for any damage or action that may cause prejudice to any third party. Newshape has the right to remove and delete and modify any Application or Service that infringes any of its policy or any third party rights and without any prior notice or justification. Newshape will keep a copy of such illegal material as a proof to be taken to justice in order to preserve its own rights or the rights of third parties.

 

7. INTELLECTUAL PROPERTY

7.1 USER intellectual property.   User shall own all intellectual property pertaining to its Content, including but not limited to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials created by you. You hereby grant Newshape a royalty-free, perpetual, irrevocable, non-exclusive, transferable right and license to use your User Content (in whole or in part) worldwide in order to provide you with the Services, and as further specified in these Terms and Conditions.

7.2 Newshape’s Intellectual Property.   All rights, title and interest in and to the Services, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law or regulation (including, but not limited to any artwork, graphics, images, website templates and widgets, literary work including Users feedback reviews and comments, source and object code, computer code, applications, audio, music, video and other media, designs, animations, interfaces, the trade dress of our Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customised URLs, trademarks, service marks, trade names and other proprietary identifiers), whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to Newshape. Subject to your full compliance with these Terms and Conditions and timely payment of all applicable Fees for our Services, we hereby grant you, upon creating your User Account and for as long as we wish to provide you with the Services, a non-exclusive, non-transferable, fully revocable, limited license to use our Services and related Intellectual Property, for the purpose of generating and displaying your User Application to End-Users, solely as expressly permitted under these Terms and Conditions, and solely within the scope of our Services.

For the avoidance of doubts, these Terms and Conditions do not convey any right or interest in or to Newshape’s Intellectual Property (or any part thereof) or on any other rights, except only for the limited license expressly granted above. Nothing in these Terms and Conditions constitutes an assignment or waiver of our Intellectual Property rights under any law, regulation or jurisdiction.

 

8. PRIVACY POLICY

Newshape values and protects your Privacy and Personal Data. Certain parts of our Services require or involve the submission, collection and/or use of certain personally identifying or identifiable data or information . In particular and as a part of accessing or using our Services, we may collect, access and use certain data, including personal data or personal information, pertaining to Users and as the case may be End Users, including the activities or navigation undertaken by Users and End Users through our Services and/or User Application.

Our Privacy Policy explains how we collect, use, manage and share your personal information and personal data for our own purposes. Be sure to read it carefully and to understand it.

8.1 Data Processing Addendum/Data Processing Agreement (“DPA”)   When using the Services, you are operating as a “data controller” (as that term is defined in the GDPR at article 4 (7) ). It is really important that you comply with data protection laws and regulations when using the Services, such as when you collect others’ personal information or data or use cookies or any kind of similar technologies or tracking technology (including those we drop for you at your request, such as for web analytics). Our Data Processing Addendum explains how we handle, on your instructions, others’ personal information or personal data you collect using the Services or any of your End-User content which contains others’ personal information. Our Data Processing Addendum forms part of this Agreement. Be sure to read that carefully and to understand it.

8.2 Data Protection, Security, Cookie Policy and Privacy Laws and Regulations.   You agree and warrant that you are solely and entirely responsible when using your Application or the Services for complying with applicable data protection, security, cookie policy and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation), including any notice and consent requirements and consent withdrawal. This includes without limitation the data collection and processing by you of any personal data or personal information, when you use your Application and/or the Services to send marketing and other electronic communications to individuals and when using cookies and any kind of similar technologies or tracking technologies on your Application (including, in particular, those which we place for you at your request as part of the Services, such as to undertake analytics for you).

8.3 Privacy Policy and End-Users.   If applicable law or regulation requires, you must provide and make available to your End Users on your Application a legally compliant privacy policy, date processing agreement, personal data protection policy and cookie policy. This information must be written and available at any time to End Users in accordance with any applicable law and regulation including the GDPR but not limited to this particular regulation.

8.4 Cookies and other Similar tracking Technologies.   If applicable law or regulation requires, you must provide and make available to your End Users on Your Applications and Services a legally compliant cookie policy and privacy policy. You must capture valid consent (as defined by article 4 (11) GDPR as well as by article 7 GDPR) , both for you and us, for any cookies or similar tracking technologies used on or through your Application or Services (including those we drop on your request or with your permission) where required, including, where applicable, by the EU e-Privacy Directive 2002/58/CE modified by directive 2009/136/CE (november 25th 2009) and under national laws implementing the same. Please read our Cookie Policy for more information about use of cookies and any kind of similar tracking technologies.

8.5 Protect and Improve the Services.  You agree that we may protect and improve our Services through analysis of your use of the Services, your End Users’ use of your Application and/or analysis of your and your End-Users’ personal information and personal data in anonymised, pseudonymised, de-personalised and/or aggregated form. If applicable law or regulation requires, you should explain this in your privacy policy and data protection policy. Read our Privacy Policy for more information about how and what we do in this regard.

We encourage you to read, understand and save our Privacy Policy, available at https://www.newshape.io/weshape-privacy/ and each such Third Party Services’ relevant policies on a regular basis, for a description of such data collection and use practices. Newshape will inform its Users, with reasonable notice, prior to making any change to its privacy policy, data processing agreement, cookie policy and data protection policy; such information will be made available on Newshape’s website and may also be sent by email (to the email address communicated by the User to Newshape). The User must ensure that he keeps, at all time, up-to-date its email address and he must inform Newshape without any delay of any changes made to his email address or to any other contact information or data.

 

9. FORCE MAJEURE

Either Party shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to an Event of Force Majeure as defined in the following:

As defined by Kuwait Law, an Event of Force Majeure is defined as “There is force majeure in contractual matters when an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures, prevents the performance of its obligation by the debtor”.

To that extent an event of force majeure can be, as defined by some jurisprudences, but is not limited to, strikes, including employees or staff strike, strike of a sub-processor of any of the Party or Third Party, vandalism, war, armed conflicts, act of war or war threat, invasion, sabotage, terrorist acts and terrorist attacks, fire, epidemics, epizootic and pandemics, earthquake, floods, tornadoes, wind storms or wind tempest, storms, wildfire, tsunami, tempest, snowstorm and explosions, network communication breakdown or disruption or outage, embargo, governmental or legitimate authority request, administrative or legally required closure, electricity shortage or power outage outside the control of any Party or Third Party.

Nevertheless, to be able to invoke an event of force majeure, the Party or the Third Party showing that the event prevents the performance of its obligation must inform its counterpart without any delay by any kind of written document or written message. Such information must precisely and clearly show every circonstances of the case of force majeure and it must also mention the reasonable delay during which the event of force majeure will last.

Regular updates must be sent to every party regarding that matter.

In any cases, if the Party or Third Party that is invoking a case of force majeure cannot fulfil its obligations during a period longer than thirty (30) consecutive days then the other Party or Third Party can, as of right, terminate all or part of the Services impacted by the case of force majeure without any prejudice regarding the payment of damages to its counterpart.

Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.

 

10. FEES AND PAYMENT TERMS

After your Free Trial, you can access the Newshape Services by submitting a fee payment (“Paid Services”, “Subscriptions Fees” or “Fee(s)”).

10.1 Applicable Subscription Fees and Taxes. Newshape applicable Subscription Fees for our Services are available online at https://www.newshape.io/weshape. Note that all our Fees are exclusive of applicable federal, state, local or other taxes. You are responsible for all said applicable taxes, and we will charge them in addition to our Fees for the Services when required to do so.

10.2 First Fee due and Payment. The first Fee due and payment takes place on the first day after the free trial period.

10.3 Payment methods. The User may pay either by credit card or PayPal.

10.4 Automatic Subscription Renewals. To ensure uninterrupted service and use, Newshape will automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period thereafter until cancellation. Your renewal period may then be equal in time to the renewal period of your current subscription. We will charge you the applicable amount using the payment method you have on file with us. Newshape may disable auto-renewal at any time.

10.5 Change in Subscription Fees. We may change our Fees at any time. New Fees will not apply retroactively. If you do not agree with the Fee changes or modification, you have the right to reject the change or modification by canceling the applicable Paid Service before your next payment date is due.

10.6 Refunds. While you may cancel any Paid Services at any time, you will not be issued a refund except in our sole discretion, or if legally required.

10.7 Service Start. The Service subscribed by the User starts as soon as the first payment is received by Newshape. Unless Newshape specifies differently, the payment is made on a monthly, or annually period (depending on the choice made by the User) and no refund will be made or only if legally required.

10.8 Banking Details update. To avoid any disruption of our Service, the User shall maintain its credit card and/or Paypal details updated. A menu is dedicated to it in the managing interface of the User Account.

10.9 Late Payment. For any late payment, Newshape may charge interest until the day of full payment, based on three (3) times the ongoing legal rate.

10.10 Payment Processor. We use a third party payment processor to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions, data processing agreement, cookie policy and privacy policies of said payment processor, in addition to this Agreement. We do not control and are not liable for the security or performance of the payment processor. You agree to pay us all charges at the prices then in effect for any purchase in accordance with the applicable payment terms and conditions. You agree to make payment using the payment method you provide with your Account. We reserve the right to correct, or to instruct our payment processor to correct, any errors or mistakes, even if payment has already been requested or received.

10.11 Billing contact. Any question about billing or the nature of the Service must be made by filling the contact form available online at https://www.newshape.io/contact-us/

 

11. TERM OF THE SUBSCRIPTION

Our Service is made available to you on an annual or month-to-month basis with automatic renewal, at your option at the time of subscription. Newshape may or may not warn User by email before the end of said subscription of our Service.

 

12. COMPLIANCE WITH LAWS

You represent and warrant that your use of Newshape will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any laws or regulations like HIPAA, GLB, EU Data Privacy Laws, or any other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable nor responsible if our Service doesn’t meet those requirements. You may not use our Service for any unlawful or any discriminatory activities.

If you’re located in the European Economic Area (EEA) or if you have at least one End-User in the EEA, you represent and warrant that in using the Service and collecting information as a result of using the Service, you:

12.1 Will clearly describe in writing how you plan to use any data collected including personal data or information. You’ll get express consent to transfer data to Newshape and be processed, and you’ll otherwise comply with whatever privacy policy, data privacy policy and cookie policy you have posted.

12.2 Have complied, and will comply with all laws and regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries or areas where your Application is downloaded, used and available to the public and to End-Users.

12.3 Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection and privacy laws and regulations. You have the necessary permission to allow Newshape to receive and process all kinds of data and send communications to that individual on your behalf.

12.4 Agree to indemnify and hold us harmless from any losses, including attorney fees, that result from your breach of any part of these warranties.

12.5 Have signed and accepted our Data Processing Agreement.

 

13. TERMINATION, LIMITATION AND SERVICE SUSPENSION

You may stop to use and request to cancel your User Account and/or any Newshape Services at any time, in accordance with the instructions available on our Services.

The effective date and time for such cancellation shall be the date and time on which you have completed the cancellation process, and the effective date for cancellation of Paid Services shall be at the end of such Paid Services’ subscription period, end of the month for month to month contracts or end of the year term for annual contracts.

With respect to automatically-renewed subscriptions to Paid Services, such subscription will be discontinued only upon the expiration of the respective period for which you have already made payment.

Please note that as the cancellation process may take a few days, in order to avoid the next automatic renewal and respective charge the cancellation request should be made at least fourteen (14) days prior to the expiration of the then-current service period.

Failure to comply with any of our Terms and Conditions and/or to pay any due Fee shall entitle Newshape to immediately suspend (until full payment is made) or immediately cancel or delete your User Account and User Application (or certain features thereof), as well as the provision of any related Services (e.g., Paid Services) to you.

Newshape reserves the right to refuse, limit or terminate access to the service to anyone should Newshape, in its sole discretion, consider that said client or user violates any provision of these Terms and Conditions, data processing agreement, privacy policy, data policy, cookie policy or more specifically any of the above covenants.

Additionally, Newshape may, but has no obligation to, remove, edit, block, and/or monitor content, or accounts containing content that Newshape determines in its sole discretion violates these Terms and Conditions.

Supplemental terms specific to the suspension, restrictions or cancelation of eCommerce solutions provided by Newshape are herein provided in Section 5.28.

Without limiting our liability limitation provisions below, you waive any claims you may have against Newshape or Newshape affiliates in the event we deny you use of the Newshape service where, among other things, you have breached any provision of these terms and conditions of service or otherwise failed to fulfill any of your obligations to Newshape.

 

14. DISCLAIMER OF WARRANTIES

NEWSHAPE PROVIDES THE SERVICES ON AN “AS IS” BASIS WITH ALL FAULTS AND “AS AVAILABLE” BASIS. YOU THEREFORE AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE AND ENTIRE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW AND REGULATIONS, NEWSHAPE, ITS OFFICERS, DIRECTORS, EMPLOYEES, STAFF, INTERNS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, NON-INFRINGEMENT OR OTHER WARRANTY – ALL TO THE FULLEST EXTENT PERMITTED BY LAW; THIS DISCLAIMER OF WARRANTIES SHALL INCLUDE AND COVER, BUT SHALL NOT BE LIMITED TO, ANY REJECTION, FOR ANY REASON WHATSOEVER, OF THE MOBILE APPLICATIONS BY ANY ONLINE MOBILE APPLICATION STORE , MARKETPLACE OR THE LIKE. NEWSHAPE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT ON THIS SERVICE OR THE CONTENT OF ANY SITES OR SERVICES LINKED TO THIS SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, RANSOMWARES, CRYPTOLOCKERS, WIPERS OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, SENT, OR OTHERWISE MADE AVAILABLE VIA OUR SERVICE. NEWSHAPE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY OR LIABILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU OR A THIRD PARTY THROUGH OUR SERVICE OR ANY HYPERLINKED SERVICES OR SERVICES FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEWSHAPE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE OR LIABLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS, GOODS, IMMATERIAL GOODS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE, NECESSARY OR REQUIRED.

Under certain circumstances, some jurisdictions may not permit the scope of the above disclaimers. Nevertheless, those disclaimers shall apply to the maximum extent permitted by applicable law or regulation. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws or regulations. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law or regulation. Additional Disclaimers regarding eCommerce activities conducted via Newshape solutions and service.

Newshape has not reviewed, and will not be able to review, all of the goods, items, products or services offered or sold through sites or mobile applications stores using the Newshape service. We will therefore have limited or no control over those stores including In App-Purchases (IAP) transactions and shall not be responsible or liable for any of their contents. Newshape will not be responsible for any use or effects from the sale or purchase of said items or services through a site, an Application Store or mobile application using the Newshape Service that may or may not include In-App Purchases (IAP). Among other things, we absolutely disclaim the following:

- Newshape does not endorse any items for sale or represent that their description, marketing or labelling is accurate, useful, non-harmful or risk free.

- If you sell items through a site, an Application Store, using or not In-App Purchases (IAP) or a store using the Newshape Service, you are solely and entirely responsible for those items, and for any harm resulting from those items or your conduct.

- Newshape disclaims any and all responsibility and liability for any harm, damages or injury resulting from anyone’s use or purchase of any items through the Newshape Service.

- We are not a party to, and will have no responsibility or liability for, any communications, transactions, interactions, or disputes between buyers and sellers or between User and End-Users.

- We are not involved in transactions that take place on Application Stores or sites using the Newshape Service, including any subscriptions, store operations, sales, refunds, rebates or returns. We disclaim any responsibility for the quality, timing, pricing, or legality of what may or may not be included in exchange for payment, or any goods, products, immaterial goods or services purchased.

- We do not represent that items for sale are the intellectual or rightful property of the seller. We disclaim responsibility for any technical or legal inaccuracies, typographical mistakes, or other errors describing items listed on sites or stores using the Newshape Service; or violations or infringements of the privacy, publicity rights, intellectual property rights, or other proprietary rights of parties or third parties.

All of our Users also hereby represent and warrant to Newshape that they will at all times specifically reference the above disclaimers in their terms and conditions of Sale and more generally indemnify Newshape from any liability whatsoever regarding their eCommerce operations and transactions including In-App Purchases (IAP).

 

15. LIMITATION OF LIABILITY

IN NO EVENT SHALL NEWSHAPE, ITS OFFICERS, DIRECTORS, EMPLOYEES, INTERNS, STAFF OR AGENTS, BE LIABLE OR RESPONSIBLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LOSS OF INCOME OR PROFITS, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORISED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, CRYPTOLOCKERS, WIPERS, RANSOMWARES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, SENT OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NEWSHAPE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW OR REGULATION IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NEWSHAPE SHALL NOT BE LIABLE OR RESPONSIBLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Newshape from its facilities in Kuwait located at Ahmad Al Jaber St., B8 Tower,4th Floor, Sharq (KUWAIT CITY, KUWAIT).

Newshape makes no representations that the Service is appropriate for any mobile device, device, mobile application store, App store or marketplace, or available for use in other locations or areas. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible and liable for compliance with local law or regulation.

 

16. LIMITATION ON DAMAGES

To the maximum extent permitted by law or regulation, User agrees to limit Newshape’s liability for the User’s damages to the sum of $1000.00 or the amount that the User has paid to Newshape during the last 12-month period, whichever is lower. This limitation shall apply regardless of the cause of action or legal theory pleaded or asserted.

 

17. INDEMNIFICATION

To the extent permitted by applicable law or regulation, you agree to defend, indemnify and hold harmless Newshape, its parent corporation, officers, directors, employees, staff, interns and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms and Conditions, data processing agreement, privacy policy, data protection policy and cookie policy; (iii) your violation of any third party right, including without limitation any copyright, intellectual property, property right, or privacy right; or (iv) any claim that your Content caused damage to a third party; or (v) any rejection of your mobile application from any mobile application store or marketplace, for any reason whatsoever. This defense and indemnification obligation will survive these Terms and Conditions and your use of the Service

 

18. TIME LIMITATION ON CLAIMS

YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH NEWSHAPE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM IS PERMANENTLY BARRED.

 

19. MISCELLANEOUS

19.1 Governing Law & Venue.   You agree that the Service shall be deemed solely based in Kuwait. This Agreement shall be governed by the internal substantive laws of Kuwait, without respect to its conflict of laws principles. Any claim or dispute between you and Newshape that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in State of Kuwait. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. This provision will survive the termination of any or all of your transactions with Newshape.

Users agree to pay all costs and expenses, including but not limited to, attorney fees and court costs incurred by Newshape for the collection and/or enforcement of any obligation under these terms and conditions, whether or not a lawsuit, mediation or arbitration is commenced.

19.2 Informal Amicable Resolution. Before filing a claim against us, you agree to try to solve the dispute amicably by first emailing hello@newshape.io with a description of your claim or request. Newshape will try to resolve the dispute informally via email, phone or other methods. If we cannot resolve the dispute within sixty (60) days of our receipt of your first email or written document, you or Newshape may then bring a formal proceeding.

19.3 NO CLASS ACTIONS.   You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations aren't allowed.

19.4 Entire Agreement.   If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity. These Terms and Conditions, together with the Privacy Policy, data processing agreement, data privacy policy, cookie policy and any other legal notices published by us on the Service, constitute the entire Agreement between you and Newshape and govern your use of the Service superseding any prior agreements.

19.5 Notices.   We may provide you with notices in any of the following methods: (1) via the Services, including by a banner or pop-up or splash screen within our Website, User Account or elsewhere; (2) by e-mail, sent to the e-mail address you provided us; and/or (3) through any other means, including any phone number or physical address you provided us. Our’s notice to you will be deemed received and effective within twenty-four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice. All Legal notices to Newshape shall be sent to: Newshape, Ahmad Al Jaber St., B8 Tower,4th Floor, Sharq (KUWAIT CITY, KUWAIT). (for updated contact please visit: www.newshape.io ); For any other notice you may contact us through the online form available at https://www.newshape.io/contact-us/.

19.6 Assignment. You will not assign the Terms and Conditions or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Newshape. Any purported assignment or delegation by you without the appropriate prior written consent of Newshape will be null and void. Newshape may assign these Terms and Conditions or any rights hereunder without your consent.

19.7 Severabilty. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms and conditions and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms and Conditions remain in full force and effect.

19.8 Amendment. Newshape reserves the right to amend these Terms and Conditions, data processing agreement, privacy policy, data protection policy and cookie policy at any time and without notice, and it is your responsibility to review and check these Terms and Conditions for any changes. Your use of the Service following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised Terms and Conditions, data processing agreement, privacy policy, data protection policy and cookie policy.

19.9 No waiver. Newshape’s failure to insist upon or enforce strict performance of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right. No waiver of any of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or any other terms or conditions.

19.10 No Third-Party Beneficiary Rights.   Neither the course of conduct between the parties nor trade practice will act to modify these Terms and Conditions. These Terms and Conditions do not confer any third-party beneficiary rights.