The following terms and conditions govern all transactions between ShrinkR LLC (“ShrinkR”), including its parents, subsidiaries, and affiliates, and you (“Customer” or “you”) concerning the 3D scanning and production of “ShrinkR Figurines” provided by ShrinkR.
1. Purchase of ShrinkR Figurines.
In exchange for the fees paid by you at the time of your purchase, ShrinkR will capture and process a full-body three-dimensional (3D) image of the subject (“Subject”) and specially manufacture for you the ShrinkR Figurines to the specifications stated at the time of purchase. Payment is due in full prior to scanning. Once a scan has been submitted for processing, the order cannot be canceled.
2. Condition of ShrinkR Figurines.
ShrinkR Figurines are manufactured by a 3D printing process and are composed of high quality gypsum mixture, binding, and infiltration material. Slight differences may appear between the Subject and ShrinkR Figurines due to the nature of the 3D printing processes. Certain details may be difficult to decipher due to the miniature stature of ShrinkR Figurines, and structures may be omitted due to their fragility in 3D production. The ShrinkR Figurines are fragile and should be treated with care to prevent it from breaking. ShrinkR Figurines are not toys and should be kept away from children. If any part of the ShrinkR Figurine is ingested, seek medical attention immediately. Colors and detailing on ShrinkR figurines may fade over time. Direct sunlight will lead to bleaching effects. Figurines should be kept away from moisture or chemicals. Based on the Subject’s positioning and balance at the time of the 3D scan, not all ShrinkR Figurines will stand without support. In such cases, permanent stands are available for purchase and can be added after the ShrinkR Figurine is produced.
ShrinkR Figurines are shipped direct to Customers. Delivery is estimated within 10-15 business days from the date of scan. Delivery times are not guaranteed, and ShrinkR will make commercially reasonable efforts to notify the Customer in the case significant delays are expected.
4. Consent to Subject Photography and Reproduction.
Customer represents and warrants that he or she has the right to agree to the reproduction of the Subject’s likeness and the Subject’s accompanying accessories and attire which will appear in the ShrinkR Figurine. Customer represents and warrants further that he or she is of legal age of majority in the jurisdiction where the purchase is made and is able to enter into a contract, or that the Customer is the legal guardian or custodian of the minor Subject to be scanned and captured in the ShrinkR Figurine.
5. License to Use Subject Image.
Each Subject depicted in a ShrinkR Figurine grants to ShrinkR the exclusive right, license, and privilege to utilize such Subject’s image and likeness as embodied in the 3D scan and ShrinkR’s portrayal thereof in the ShrinkR Figurines in connection with the manufacture, advertising, distribution, and sale of any of ShrinkR’s articles or products. Such granted rights include the unconditional and exclusive right throughout the world to use, simulate, and portray the Subject’s likeness, in whole or in part, in any and all other media of any nature whatsoever, whether now known or hereafter devised. The Subject agrees that ShrinkR shall have the unlimited right to vary, change, alter, modify, add to, and/or delete from his or her depiction in the 3D scan, including but not limited to the right to alter or delete from any 3D scan any trademarks or logos that may, in ShrinkR’s sole discretion, infringe the intellectual property rights of third parties when applied to the ShrinkR Figurines. The subject hereby releases and discharges ShrinkR, its employees, agents, licenses, successors, and assigns from any and all claims, demands, or causes of action that it may have or may hereafter have for libel, defamation, invasion of privacy, or right of publicity, infringement of copyright or trademark, or violation of any other right arising out of or relating to any utilization of the rights granted herein. All rights, licenses, and privileges herein granted to ShrinkR are irrevocable and not subject to recession, restraint, or injunction except as provided herein. Notwithstanding the forgoing, each Customer and Subject depicted in a ShrinkR Figurine may, within 30 days of its order date, request in writing that ShrinkR delete its 3D scan data as its relates to such Customer or Subject and not utilize the Subject’s image or likeness for any future purpose. Customer acknowledges that it may not reorder any ShrinkR Figurine after such 3D scan data has been deleted.
a. Representation and Warranty.
ShrinkR represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. ShrinkR shall not be liable for such breach unless Customer gives written notice of defective Services, reasonably described, to ShrinkR within seven (7) days of the time when Customer discovers or ought to have discovered that the Services were defective, and no later than seven (7) days after delivery of the final product. ShrinkR shall, in its sole discretion, either (i) re-perform such Services (i.e., rescan the Subject, reprint the ShrinkR Figurine, or repair the ShrinkR Figurine, as applicable) or (ii) credit or refund the price of such Services. In the event ShrinkR chooses to re-perform the Services, if required, you are solely responsible for arranging to visit a ShrinkR location where the scan will be performed and for all costs associated with travelling to such location.
THE REMEDIES SET FORTH IN SECTION 6(b) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SHRINKR’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6(a).
c. Disclaimer of Warranties.
SHRINKR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
d. Limitation of Liability.
IN NO EVENT SHALL SHRINKR BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
e. IN NO EVENT SHALL SHRINKR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SHRINKR UNDER THIS AGREEMENT. The limitation of liability set forth in this Section 6(e) shall not apply to (i) liability resulting from ShrinkR’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from ShrinkR’s negligent acts or omissions.
Customer shall defend, indemnify and hold harmless ShrinkR and ShrinkR’s parents, subsidiaries, and affiliates, and their respective officers, directors, managers, employees, agents, successors, and permitted assigns, from and against all damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or resulting from bodily injury, death of any person or damage to real or tangible, personal property resulting from the negligent or willful acts or omissions of Customer and Customer’s breach of the representation and warranty set forth in Section 4 of this Agreement.
No waiver by ShrinkR of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ShrinkR. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
h. Force Majeure.
ShrinkR shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of ShrinkR including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
i. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
j. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal and state courts located in the County of New York in the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Governing Law, Submission to Jurisdiction and Survival.