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These Terms govern the relationship between Makeswift, Inc., a Delaware corporation (referred to herein as “Makeswift”, “we”, “us” or “our”) and you (“User”, “you” or “your”), the person accessing or otherwise making use of our Site located at www.makeswift.com and/or registering for a Makeswift Account (as defined below) or otherwise accessing or making use of the Site, Makeswift Account or our Subscription Service. These Terms constitute a legally binding agreement between you and Makeswift. Accordingly, we advise you to read these Terms carefully before accessing or otherwise making use of the Site or Subscription Service. You and Makeswift may each be referred to in these Terms individually as a “Party” and together as the “Parties,” as context so requires.
NOTICE OF BINDING ARBITRATION
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “20” BELOW. PLEASE READ THE SECTION TITLED “BINDING ARBITRATION” CAREFULLY.
Acceptance of this Agreement
1.2. Restrictions on Acceptance.
When you access or otherwise make use of the Site or the Subscription Service you acknowledge and agree that:
a. if you are accepting these Terms on behalf of any legal entity, including any company, organization, government, or governmental agency, you have been authorized to do so and to act on behalf of such legal entity;
b. you have read and understand all of the provisions, terms and conditions set forth in these Terms;
c. you will be bound by all of the provisions, terms and conditions set forth in these Terms;
d. you are at least eighteen (18) years of age;
e. you have the right, authority and capacity to enter into these Terms and to abide by all terms and conditions of these Terms;
f. you have not previously used the Subscription Service through an Account which Makeswift has terminated or suspended in accordance with the terms and conditions of these Terms;
g. you have a valid email address; and
h. these Terms are the legal equivalent of a signed, written contract between you and Makeswift.
IF YOU ARE UNABLE OR UNWILLING TO CONFIRM THE ABOVE STATEMENTS, THEN YOU MUST NOT ACCEPT THESE TERMS OR OTHERWISE ACCESS OR MAKE USE OF THE SITE OR SUBSCRIPTION SERVICE. PLEASE NOTE THAT, EVEN IF YOU AGREE TO AND ACKNOWLEDGE THE REPRESENTATIONS IN SECTION 1.2, CERTAIN OF OUR TRUSTED THIRD PARTY SUBSCRIPTION SERVICE PROVIDERS MAY REJECT YOUR REGISTRATION APPLICATION FOLLOWING THE REGISTRATION PROCESS BASED ON SUCH SUBSCRIPTION SERVICE PROVIDER’S INTERNAL ASSESSMENT PROCESS AND YOU MAY NOT BE ABLE TO MAKE USE OF THE SUBSCRIPTION SERVICE AS A RESULT.
Unless context requires otherwise, capitalized terms not defined within these Terms shall have the following meanings:
a. “Affiliate” means, with respect to a Party, any person, firm, corporation, partnership (including general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such Party.
b. “Applicable Law” means any and all applicable federal, state and local laws, statutes, ordinances, regulations, rules, opinions, interpretive letters and other official releases of or by any government, or any authority, department or agency thereof which are now in effect or which may come in to effect at any time during the Term (defined below).
c. “Application” refers to Makeswift’s interactive software platform which allows Users to access and use the Subscription Services and which may be downloaded from an App Store (defined in Section 14) to a User’s mobile device or which may be otherwise accessed by a User online through the Internet at our Site.
d. “Content” means any texts, pictures, graphics, logos, button items, images, works of authorship and other content (collectively with all information about the Site and Subscription Service).
e. “Makeswift Account” means your Makeswift user account which you must register for through the Site in order to use the Subscription Service.
f. “Personal Information” means information that is unique to you and may include your name, your home or other physical address, your email address, your telephone number, and other information that identifies you.
g. “Subscription Service” means the Makeswift marketing services offered at the Site.
h. “User Information” means the Personal Information that you provide to us in order to make use of your Makeswift Account, the Site or the Subscription Service, as further described in Section 6.1.
References to Sections are to be construed as references to the Sections of these Terms, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to these Terms as a whole rather than any particular part of the same. The terms “include” and “including” are not limiting.
Makeswift reserves the right to change, modify, supplement, or update these Terms (each such change, modification or supplement, an “Amendment”), from time to time without advance notice by posting such Amendment on the Site. We encourage you to periodically visit these Terms to check for any Amendments. In the event that an Amendment to these Terms materially modifies your rights or obligations we will take commercially reasonable measures to notify you of such Amendment, which may include posting notices on the website or sending notices to you at your email address. You acknowledge and agree that you will be bound by any such Amendment if you continue to access or use the Site or Subscription Service after such Amendment is posted. Unless otherwise indicated, any new Subscription Service added to the Site will also be subject to these Terms effective upon the date of any such addition. You are encouraged to review the Site and these Terms periodically for updates and changes. The most current version of these Terms will be effective as of the date specified in the “Last Updated” legend set forth above.
Transferability of Access or Rights
Your rights and obligations with respect to the Site and Subscription Service are personal to you and you may not transfer such rights and obligations to any other person or entity.
Account Registration; Fees
6.1 Account Registration.
Each user for a Makeswift Account is responsible for maintaining the confidentiality of his/her password, and fully responsible for all activities that occur under the User’s account. You agree to notify us immediately of any unauthorized use of your Agency or User account or any breach of security and understand that we reserve the right to take legal actions against individuals for unauthorized use of accounts on makeswift.com.
6.3. Paid Features Available Through the Subscription Services.
Certain features of the Subscription Services may be made available on a paid basis. If you elect to use paid features of the Subscription Services, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges, posted on or provided through the Subscription Services. Makeswift may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion.
a. Refund Policy. Refunds for the Subscription Services, if any, will be made only in accordance with our Refund Policy available at www.makeswift.com/refund.
b. Authorization to Use Payment Method Provided. By using any paid feature, you (i) authorize Makeswift to charge you a fee at the then current rate, and any other charges you may incur in connection with your use of the Subscription Services; and (ii) represent and warrant to Makeswift that you have the right and authority to use the payment method provided to Makeswift.
c. Authorization for Third Party Processing. You also authorize Makeswift to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
d. Responsibility for Payments. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Subscription Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Subscription Services at the prices in effect when such charges are incurred. You shall pay all applicable fees, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Makeswift by any authority in connection with or arising from the use of the Subscription Services, excluding taxes based upon Makeswift’s net income.
e. Failed Payments. If your payment method fails or your account is past due, (a) you agree to pay all amounts due on your account upon demand and reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted, (b) Makeswift may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) Makeswift reserves the right to either suspend or terminate your Subscription Service or your account with Makeswift, including deletion of your data from the Site and Subscription Service.
f. Disputes. Except as may be set forth in our Refund Policy, any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to Makeswift within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge.
g. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon ten (10) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
Your Warranties to Makeswift
In addition to the representations and warranties you make to Makeswift under Section 1.2 represent and warrant to Makeswift that (i) all information that you provide to us in connection with your use of the Site, Makeswift Account or Subscription Service is up- to-date, accurate and truthful, (ii) you have the authority to share this information with us and to grant us the right to use this information as provided in these Terms, (iii) you have the right to grant us the licenses specified herein, if applicable, and (iv) your acceptance and use of the Subscription Service pursuant to these Terms does not violate any Applicable Law or other contract or obligation to which you are a party or by which you are otherwise bound.
Accuracy and Changes to User Information
You agree to provide your accurate, up-to- date and truthful User Information during Registration and when you otherwise access or make use of your Makeswift Account, the Site or the Subscription Service. You further agree to promptly update all your User Information whenever the information provided to us by you is found to be in error or becomes inaccurate. You can update your information by contacting us at email@example.com. We are not responsible for any Subscription Service-related issues or errors arising from your failure to submit or maintain current and accurate User Information. If we determine, in our sole discretion, that you have failed to submit or maintain current and accurate User Information, we may temporarily suspend or terminate your access to your Makeswift Account, the Site or the Subscription Service.
Disclosure and Consent to Electronic Communications
9.1 Consent to Electronic Communications.
When you accept these Terms, you acknowledge that Makeswift may provide certain information, including information regarding your use of the Site, the Subscription Service, and Makeswift Account (“Communications”), to you electronically through email, the Site or Subscription Service, the Makeswift Account or links to notices posted on the Site, unless and until you withdraw your consent or “opt out” as described below. You understand that the communications referenced in this section do not include SMS text messages unless you otherwise give your express consent to receive SMS text messages for this purpose. You agree that all agreements, notices, disclosures and other Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing. You further agree that any Communications provided by us electronically are deemed to be given and received on the date we transmit any such Communication as described in these Terms. The categories of Communications that may be provided by electronic means include:
a. any Amendments to these Terms;
b. disclosures or notices provided in connection with the Subscription Service, including any such notice required by Applicable Law;
c. any statements concerning your Makeswift Account;
d. any customer service communications, including communications with respect to claims of error or unauthorized use of your Makeswift Account, the Sites or the Subscription Service; and
e. any other communication related to the Site or Subscription Service.
Although Makeswift reserves the right to provide Communications in paper format at any time, you agree that Makeswift is under no obligation to do so unless you first notify us, in writing, of your request to receive further communications in a paper format and your decision to opt out of receiving Communications. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of these Terms and any Communication that is important to you and retain the copy for your records. If you do not wish to enter into these Terms electronically, you may not use your Makeswift Account, the Site or the Subscription Service.
9.2. Timing of Communications.
Any electronic Communications will be deemed to have been received by you no later than five (5) business days after Makeswift sends it to you by email or posts such Communication on the Site or through the Subscription Service, whether or not you have received the email or retrieved the Communication from the Site or Subscription Service. An electronic Communication by email is considered to be sent at the time that it is directed by Makeswift's email server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.
9.3. Updated User Information.
You agree to promptly update your User Information if such information changes so that Makeswift may contact you electronically. You may update your User Information, such as your email address, as described in Section 8 of these Terms. You understand and agree that if Makeswift sends you an electronic Communication, but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive such electronic Communications, Makeswift will be deemed to have provided the Communication to you.
9.4. System Specifications.
In order to access, view, and retain electronic Communications that Makeswift provides to you, you must have access to: (i) a computer with an Internet connection; (ii) a current or previous major release version (up to the second most recent version) of either Firefox, Internet Explorer, Chrome, or Safari with cookies enabled and Adobe Acrobat Reader to open documents in “.pdf” format; (iii) sufficient electronic storage capacity on your computer's hard drive or other data storage unit to save past Communications and/or an installed printer to print them; and (iv) an email account with an Internet service provider and email software. Your access to this page through your device verifies that your device meets these requirements.
9.5. Reservation of Rights.
Makeswift reserves the right, in its sole discretion, to discontinue the provision of electronic Communications to you, or to terminate or change the terms and conditions under which Makeswift provides electronic Communications. Makeswift will provide you with notice of any such termination or change as may be required by Applicable Law.
Ownership of Content and Subscription Service
You acknowledge and agree that, except as otherwise expressly stated, all text, pictures, graphics, logos, button items, images, works of authorship, and other content (collectively with all information and material about Makeswift, the Site or the Subscription Service, “Content”) appearing on your Makeswift Account, the Site or the Subscription Service is the copyrighted work of Makeswift or its third party content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement and assembly) of all Content is also the exclusive property of Makeswift and is protected by U.S. and international copyright laws. You may download information from your Makeswift Account, the Site, or the Subscription Service and print out a hard copy for your personal use provided that you keep such hard copies intact and do not remove or alter any copyright or other notice (e.g., trademark, patent, etc.) contained in the information. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or Content obtained from the Site or Subscription Service, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of Makeswift or any applicable third party suppliers. The use of Content, including images, by you, or anyone else authorized by you, is prohibited unless specifically permitted by Makeswift. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. Makeswift does not warrant or represent that your use of Content or the Subscription Service will not infringe rights of third parties.
Ownership of Information Submitted via the Subscription Service
11.2. License to Makeswift.
11.2. No Privacy in Submissions.
Please be advised that if you send or submit to Makeswift creative ideas, suggestions, inventions, or materials (“Feedback”), Makeswift shall: (i) own, exclusively, all now known or later discovered rights to the Feedback; (ii) not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Feedback; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
Limited License and Site Access; All Rights Reserved
Use of the Subscription Service is limited to persons 18 years of age or older. Subject to your compliance with these Terms, Makeswift hereby grants you a limited license to access and make use of these Subscription Service, but not to download (other than page caching or downloading of PDF forms, statements, etc. provided as part of the Subscription Service) or modify the Subscription Service, or any portion of thereof, except with express written consent of Makeswift. The Subscription Service also contain the Content, and the license granted in this Section does not include any resale or commercial use of the Subscription Service or the Content; any derivative use of the Subscription Service or the Content; or any use of data mining, robots, or similar data gathering and extraction tools. The Subscription Service or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of Makeswift. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Makeswift without Makeswift’s express written consent. You may not use any meta-tags or any other “hidden text” utilizing any of Makeswift’s name(s) or service marks without the express written consent of their owners. We (or the respective third party owners of Content) retain all right, title, and interest in the Subscription Service and any Content offered on these Subscription Service, including any and all intellectual property rights. Any software applications available on or through the Subscription Service are licensed, not sold, to you. Makeswift may assign these Terms or any part hereof, without restrictions. You may not assign these Terms or any part hereof, nor transfer or sub-license your rights under these Terms, to any third party. We (or the respective third party owners of Content) reserve all rights not expressly granted. Any unauthorized use terminates the permission or license granted by Makeswift.
App Store Terms of Subscription Service
14.1. App Provider Terms.
The following terms apply to any Subscription Service accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the Subscription Service may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
a. These Terms are concluded between you and Makeswift, and not with the App Provider, and that Makeswift (not the App Provider), is solely responsible for the Subscription Service.
b. The App Provider has no obligation to furnish any maintenance and support services with respect to the Subscription Service.
c. In the event of any failure of the Subscription Service to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the Subscription Service to you (if applicable) and to the maximum extent permitted by Applicable Law, the App Provider will have no other warranty obligation whatsoever with respect to the Subscription Service. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Makeswift.
d. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Subscription Service or your possession and use of the Subscription Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Subscription Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. In the event of any third party claim that the Subscription Service or your possession and use of the Subscription Service infringes that third party’s intellectual property rights, Makeswift will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
f. The App Provider, and its subsidiaries, are third party beneficiaries of these Terms as related to your license of the Subscription Service, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Subscription Service against you as a third party beneficiary thereof.
g. You must also comply with all applicable third party terms of service when using the Subscription Service.
Your Use of the Subscription Service
15.1. Use of Subscription Service in Accordance with these Terms and Applicable Law.
You will not use the Site or Subscription Service for any illegal purpose. You will only use the Site or Subscription Service in accordance with the terms and conditions of these Terms and Applicable Law.
15.2. Responsibility for User Information; Unauthorized Access and Transfers.
You hereby acknowledge and agree that you are responsible for maintaining and protecting accurate and current User Information. If you believe that your User Information or a device that you use to access any Site has been lost or stolen, that someone is using the Site or Subscription Service with your User Information and without your authorization, or that an unauthorized transaction has occurred, you must notify us immediately at firstname.lastname@example.org
16.1. Prohibited Use of Site.
Any use or attempted use of the Site (i) for any unlawful, unauthorized, fraudulent or malicious purpose, or (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, or (iii) interfere with any other party's use and enjoyment of the Site, or (iv) to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means, or (v) to access systems, data or information not intended by Makeswift to be made accessible to a user, or (vi) attempt to obtain any materials or information through any means not intentionally made available by Makeswift, or (vii) any use other than the business purpose for which it was intended, is prohibited. In addition, in connection with your use of the Site, you agree you will not:
a. provide your User Information (including your Makeswift Account log in credentials), Makeswift Account information, or access to the Subscription Service to any third party unless such third party is a trusted third party service provider of Makeswift;
b. upload or transmit any message, information, data, text, software or images, or other content (“Material”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another's right of privacy or publicity;
c. create a false identity for the purpose of misleading others or impersonate any person or entity, including any Makeswift representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
e. upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;
f. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
g. use the Site's or Subscription Service’s communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text);
h. upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation, commercial or otherwise;
i. violate any Applicable Law or international law;
j. upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;
k. delete or revise any material posted by any other person or entity;
l. manipulate or otherwise display the Site by using framing, mirroring or similar navigational technology or directly link to any portion of the Site other than the main homepage in accordance with the limited license outlined above;
m. probe, scan, test the vulnerability of or breach the authentication measures of, the Site or any related networks or systems;
n. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for the Subscription Service if you are not expressly authorized by such party to do so;
o. harvest or otherwise collect information about others, including e-mail addresses; or
p. use any robot, spider, scraper, or other automated or manual means to access the Site, or copy any content or information on the Site.
16.2. Monitoring and Enforcement; Termination.
We have the right to:
a. Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
b. Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public or could create liability for Makeswift.
c. Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
d. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
e. Terminate or suspend your access to all or part of the Website for any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS MAKESWIFT AND ITS AFFILIATES, LICENSEES AND SUBSCRIPTION SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
You agree to release, indemnify, and hold harmless Makeswift and its Affiliates, and their respective officers, directors, employees and agents, (“Indemnified Persons”) harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way related to: (i) your access to, use of, or inability to use the Site or Subscription Service; (ii) your breach of these Terms; (iii) your violation of any rights of a third party; (iv) your violation of any Applicable Law; or (v) your failure to provide and maintain true, accurate, current and complete User Information.
Warrenties and Disclaimers
18.1. Limitation of Liability
a. YOU UNDERSTAND AND AGREE THAT MAKESWIFT, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUCCESSORS, AGENTS, AFFILIATES, OR ANY RELATED COMPANIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SITE, SUBSCRIPTION SERVICE OR THIS AGREEMENT, EVEN IF MAKESWIFT HAS BEEN ADVISED OF THE POSSIBILITIES OF THOSE DAMAGES, RESULTING FROM YOUR USE OR INABILITY TO USE YOUR MAKESWIFT ACCOUNT, THE SITE, AND SUBSCRIPTION SERVICE OR CONTENT, THE COST OF OBTAINING SUBSTITUTE SUBSCRIPTION SERVICE RESULTING FROM ANY LOSS OF DATA, INFORMATION, PRODUCTS AND SUBSCRIPTION SERVICE OBTAINED FROM TRANSACTIONS ENTERED INTO THROUGH THE SITE OR SUBSCRIPTION SERVICE, OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR ANY OTHER MATTER RELATED TO THE SITE AND SUBSCRIPTION SERVICE OR CONTENT. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND SUBSCRIPTION SERVICE IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO SUE MAKESWIFT DIRECTLY OR TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SITE.
b. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18.2. No Warrenties
a. YOU EXPRESSLY AGREE YOUR USE OF THE SITE AND SUBSCRIPTION SERVICE IS AT YOUR SOLE RISK. THE SITE, SITE CONTENT AND SUBSCRIPTION SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MAKESWIFT, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE SITE AND SUBSCRIPTION SERVICE WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SITE, SITE CONTENT OR SUBSCRIPTION SERVICE; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SUBSCRIPTION SERVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR ACCESSED THROUGH THE SITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SUBSCRIPTION SERVICE; (6) WARRANTIES THAT YOUR USE OF THE SITE OR SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED; VIRUS-FREE OR ERROR-FREE AND (7) WARRANTIES THAT ERRORS IN THE SITE OR SUBSCRIPTION SERVICE WILL BE CORRECTED.
b. Makeswift does not warrant or make any representations regarding availability, accuracy, reliability, completeness, or timeliness of the materials, Subscription Service, text, graphics, and or links associated with the Site. If your use of the Site or the materials, Subscription Service, text, graphics, and or links associated with the Site results in the need for servicing or replacing equipment or data, Makeswift is not responsible for those costs.
Term and Termination
These Terms shall commence on the date you first access the Site or use the Subscription Service and remain in effect until either Party terminates these Terms (the “Term”).
19.2. Termination Rights of Makeswift.
Makeswift may terminate these Terms at any time in its sole discretion.
19.3. Your Termination Rights.
You may terminate these Terms at any time by ending your use of the Site and the Subscription Service and notifying Makeswift by email at email@example.com.
20.1. Arbitration Process.
Arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”) selected from and administered by the Atlanta, Georgia office of JAMS (“JAMS”), in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The arbitration shall be conducted by a licensed attorney or retired judge who is admitted in both federal and state courts, with experience in securities law. The Arbitrator shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS; however, the Arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the Arbitrator. Within ﬁfteen (15) calendar days after conclusion of the arbitration, the Arbitrator shall issue a written award and a written statement of decision describing the material factual ﬁndings and conclusions on which the award is based, including the calculation of any damages awarded. Each party shall fully perform and satisfy the arbitration award within fifteen (15) days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right to bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
20.2. YOU AGREE THAT, IF YOU DECIDE TO OPEN A MAKESWIFT ACCOUNT AND/OR USE THE SUBSCRIPTION SERVICE, YOUR RELATIONSHIP WITH MAKESWIFT WILL BE GOVERNED BY THE PRE-DISPUTE ARBITRATION CLAUSE IN THE AGREEMENTS. YOU FURTHER AGREE THAT, IF YOU DECIDE TO OPEN AN ACCOUNT AND/OR USE THE SUBSCRIPTION SERVICE, THE PRE-DISPUTE ARBITRATION CLAUSE IN THE AGREEMENT SUPERSEDES THE ARBITRATION PROVISIONS OF THESE TERMS OF SUBSCRIPTION SERVICE.
Right of Use
Subject to the provisions in these Terms, you may use the Subscription Service, Site, and mobile app for non-commercial purposes to: (i) learn about the Subscription Service; (ii) learn about the Site, Subscription Service, and Makeswift; (iii) enter into these Terms; (iv) open a Makeswift Account to participate in the Subscription Service; (v) access statements and conﬁrmations regarding transactions in connection and the value of your Makeswift Account; (vi) access and print or download copies of the current version of these Terms, and other documentation relating to the Subscription Service; and (vii) make such other use of the Site and Subscription Service as we may expressly permit from time to time in furtherance of the objectives and growth of the Subscription Service. Subject to these Terms, we hereby grant you a personal, nontransferable, nonexclusive, non-sublicensable license to use the user interface of the Site, the Subscription Service and their respective content and services in accordance with these Terms, and for no other purpose. All rights, title and interest in and to the user interface and Site, including any software, on or through the Site and Subscription Service shall belong to Makeswift or our licensors and suppliers, including all modiﬁcations thereof and enhancements thereto. The content and user interface made available from, on or through the Site or Subscription Service may not be copied, modiﬁed, republished, assigned, sold or distributed to you, nor may derivative works be prepared therefrom. The license granted to you pursuant to these Terms is solely for your personal use (but not for resale or redistribution) as a user of the Site or Subscription Service and may not be used for any other purposes. No ownership rights are granted to you hereunder and no title is transferred hereby.
Relationship of the Parties
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your access or use of the Site or the Subscription Service. Our performance under these Terms is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your access or use of the Site and/or Subscription Service or information provided to or gathered by us with respect to such use.
The waiver by Makeswift of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
23.2. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
These Terms will be deemed entered into in the State of Georgia and will be governed by and interpreted in accordance with the laws of the State of Georgia, excluding without regard to conflicts of law. The Parties agree that any dispute arising under these Terms will be resolved exclusively in the state or federal courts in Georgia and the Parties hereby expressly consent to jurisdiction therein, waiving any defenses of jurisdiction or forum non conveniens. The parties irrevocably waive any and all rights to a trial by jury.
23.3. Third Party Beneficiaries.
Except as limited herein, these Terms and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in these Terms, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.
23.4. Entire Agreement.
Except as limited herein, these Terms and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in these Terms, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.
All provisions of these Terms that by their nature extend beyond the expiration or termination of these Terms, including Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, and 23 and the definitions herein as applicable to interpretation of the foregoing shall survive the termination of these Terms.
If any provision of these Terms (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of these Terms shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in these Terms.
You may not transfer or assign these Terms nor any of your rights hereunder to any third party and any attempt to so transfer or assign will be rendered null and void. Notwithstanding the foregoing, Makeswift may assign these Terms or any rights hereunder without consent: (i) to an entity that acquires all or substantially all of its stock, assets or business; or (ii) to an Affiliate. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.
23.8. Contact Us.
If you have any questions about these Terms, please contact us as described on the website under “Contact Us” or at the email address or phone number provided below. We will attempt to respond to your questions or concerns promptly after we receive them.
Call: (888) 490-0775
75 5th St. NW
Atlanta, GA, 30308