Updated: April 30, 2019
PLEASE READ THIS AGREEMENT CAREFULLY AS IT INCLUDES LEGAL OBLIGATIONS AND INDEMNITIES THAT YOU ACCEPT AND AGREE TO. THIS AGREEMENT LIMITS YOUR LEGAL RIGHTS.
The following terms and conditions are a binding and enforceable legal contract and agreement ("Agreement") between you and Makeshift and Makeshift’s parent company AppColony Inc. ("Makeshift", "AppColony", "we", "us", "our", etc.). This Agreement sets out the terms and conditions applicable to all products and services, including any and all of Our Content (as defined below), websites, web pages, and software as a service offered, marketed, delivered, provided or made accessible by us (collectively, the "Services"). References to the Services will include Our Content unless the context requires otherwise.
This Agreement includes any and all operating rules or policies that may be posted from time to time on any of our websites, including but not limited to our website located at http://www.makeshift.ca, or on any Makeshift mobile application from time to time, all of which are hereby incorporated by reference into this Agreement. This Agreement shall be in addition to any specific end user license agreement you may enter into and applies to the subject matter of all such end user license agreements between you and us. In the event of any inconsistency or conflict between any such end user agreement and this Agreement, this Agreement shall take priority to the full extent of any such inconsistency.
This Agreement governs any and all access to or use by you of any and all of the Services. While you may be asked to confirm your acceptance of this Agreement by mechanisms or devices including clicking on-screen icons such as "Agree" or "Accept", your access to or use of the Services shall in any event confirm that you have read, understand, accept and agree to be bound by this Agreement. You may only create an Account (defined below) or access or use the Services after reading and accepting all the terms and conditions of this Agreement.
Your use of the Services is conditional on and subject to your unconditional acceptance of this Agreement. If you are not willing to be bound by each and every term and condition of this Agreement, or if you violate any of the terms or conditions of Agreement, or if any representation made by you to us in this Agreement or otherwise is not true, you may not use, and must cease using, the Services.
Violation of any of the terms or conditions of this Agreement may result in the termination of your Account and/or access to the Services, or of this Agreement. You understand and agree that we cannot be responsible for the Content posted on the Services and you nonetheless may be exposed to such Content, and you may consider it offensive. You agree to use the Services at your own risk.
We reserve the right to update, modify and amend this Agreement, including but not limited to the charges associated with the use of the Services, at any time upon at least thirty (30) days’ notice in writing to you setting out the new clause or clauses, or the amended clause or clauses and the clause or clauses as they read formally (which notice may be delivered to you by email), before such amendment becomes effective. Where applicable law permits a shorter notice period, we have the right to rely on such shorter notice period. If any amendment is unacceptable to you, you may terminate this Agreement as set out in this Agreement. Continuing to access or use the Services following any such notice, updates or changes constitutes your acceptance of and agreement to all such updates or changes unless terminate this Agreement no later than 30 days after the amendment comes into force. How we give notice to you may include publishing the latest, fully-amended version of this Agreement on our website at http://www.makeshift.ca/terms/. You are responsible for regularly reviewing this Agreement as it relates to your access to and use of the Services to obtain timely notice of such amendments. If any amendment is unacceptable to you, you may terminate this Agreement as set out in this Agreement. Continuing to access or use the Services following any such updates or changes constitutes your acceptance of and agreement to all such updates or changes.
In Connection with your Administrative Account or Individual Account (collectively referred to herein as an "Account").
The Services is an account-based service. As such you must adhere to the following:
you agree to provide assistance to us, as requested, to stop or remedy any breach of security related to your Account. In no event will we have any liability for any loss or damages that may occur due to the unauthorized or authorized use of your Account or password, with or without your knowledge;
As an Administrative Member or as an Individual Member (collectively referred to herein as a "Member"), you agree and consent to receive monthly newsletters and emails promoting any special offer(s), including third party offers. You may withdraw that consent at any time.
Your use of the Services is your consent to allow us to use your business name and trademarks, service marks, logos and designs for our promotional purposes. We shall only use the foregoing as it relates to your use of the Services within the scope of this Agreement.
YOUR USE OF THE SERVICES IS SUBJECT TO AND CONDITIONAL UPON THIS AGREEMENT AND YOUR ACCEPTANCE OF AND COMPLIANCE WITH IT. AT OUR EXCLUSIVE DISCRETION, WE MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND OPERATION OF THE SERVICES, IN ACCORDANCE WITH SECTION 2 OF THIS AGREEMENT. BY USING THE SERVICES, YOU AGREE TO AND ACCEPT THIS AGREEMENT, INCLUDING ANY MODIFICATIONS WE MAKE, AND FURTHER IRREVOCABLY WAIVE ANY RIGHTS OR CLAIMS YOU MAY HAVE AGAINST US.
MANAGERS AND HOSTS ARE NOT AUTHORIZED SPOKESPERSONS FOR US AND THEIR VIEWS DO NOT NECESSARILY REFLECT OURS.
CERTAIN ASPECTS OF THE SERVICES MAY BE SUBJECT TO ADDITIONAL POSTED CONDITIONS. YOUR USE OF THOSE ASPECTS OF THE SERVICES IS SUBJECT TO THOSE CONDITIONS, WHICH ARE INCORPORATED INTO AND FORM PART OF THIS AGREEMENT. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THIS AGREEMENT AND ANY ADDITIONAL POSTED CONDITIONS, THE PROVISIONS OF THE ADDITIONAL CONDITIONS SHALL TAKE PRIORITY WHERE STATED TO DO SO.
CUSTOMER ACKNOWLEDGEMENT. YOU ACKNOWLEDGE AND AGREE THAT: (i) ALL USE OF THE SERVICES PROVIDED BY US IS EXCLUSIVELY AT YOUR OWN RISK; (ii) THE SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES OR ONLINE RESOURCES OR CONTENT, WHICH ARE PROVIDED SOLELY AS A CONVENIENCE TO YOU AND THE INCLUSION OF ANY SUCH LINK DOES NOT IMPLY ENDORSEMENT, INVESTIGATION OR VERIFICATION BY US OF SUCH WEBSITES, ONLINE RESOURCES OR CONTENT, OR THE INFORMATION CONTAINED THEREIN, NOR ARE WE RESPONSIBLE FOR ANY CHANGES TO OR CONTENT ON SUCH WEBSITES, ONLINE RESOURCES OR CONTENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS, DISCLAIMERS AND INDEMNITIES IN THIS AGREEMENT ARE KNOWN TO YOU, ARE FULLY AND FREELY ACCEPTABLE BY YOU, ARE REASONABLE IN THE CIRCUMSTANCES, AND ARE REQUIRED TO DELIVER THE SERVICES AT THE PRICES APPLICABLE TO THE SERVICES, SUCH THAT, WITHOUT SUCH LIMITATIONS, DISCLAIMERS AND INDEMNITIES, THE COST OF AND THE PRICING FOR THE SERVICES WOULD BE SUBSTANTIALLY HIGHER.
DISCLAIMER OF WARRANTIES. WE MAKE NO CONDITIONS, WARRANTIES OR REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, USABILITY, SECURITY, QUALITY, CAPACITY, PERFORMANCE, AVAILABILITY, TIMELINESS OR ACCURACY OF THE SERVICES, THE CONTENT. OR ANY OTHER PRODUCTS OR SERVICES SUPPLIED BY US, OR THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE EXPRESSLY DISCLAIM ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM A COURSE OF DEALING OR CUSTOM OF TRADE, OR BY COURSE OF PERFORMANCE, IN EQUITY OR AT LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND NON-INFRINGEMENT, OR COMPLIANCE WITH ANY DESCRIPTION.
THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED
SOME JURISDICTIONS PROHIBIT THE DISCLAIMER OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OF CERTAIN TYPES OF LIABILITY. IN SUCH CIRCUMSTANCES, TO THE EXTENT THAT SUCH PROHIBITIONS PROHIBIT ANY EXCLUSIONS OR LIMITATIONS IN THIS AGREEMENT, SUCH EXCLUSIONS AND LIMITATIONS WILL NOT APPLY TO YOU STRICTLY TO THE EXTENT NECESSARY TO MAKE THIS AGREEMENT CONSISTENT WITH SUCH PROHIBITIONS.
WE GIVE NO REPRESENTATION, WARRANTY OR CONDITION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR, BUG OR VIRUS FREE, OR NOT SUBJECT TO FORCE MAJEURE, AND WE SHALL NOT BE HELD RESPONSIBLE OR LIABLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES, ACCESS DELAYS, ANY INTERRUPTION AND/OR DATA DELIVERY, NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION, OR EVENTS CAUSING, OR ALLEGED TO CAUSE, ANY LOSS OR DAMAGE TO YOU, OR FAILURE TO ACHIEVE ANY ANTICIPATED REVENUE, PROFIT OR SAVINGS.
YOU MAY BE EXPOSED TO CONTENT THAT YOU FIND OFFENSIVE, INDECENT, OR OBJECTIONABLE OR THAT IS INACCURATE, AND YOU ACCEPT ALL RISKS ASSOCIATED WITH ACCESSING, RELYING ON OR USING THAT CONTENT. WE HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT THAT MAY, IN OUR SOLE DISCRETION, VIOLATE THIS AGREEMENT OR THAT IS OTHERWISE OBJECTIONABLE.
NO LIABILITY TO YOU
USE OF THE SERVICES. USE OF THE SERVICES IS SUBJECT TO EXISTING LAWS AND LEGAL PROCESS. NOTHING CONTAINED IN THIS AGREEMENT SHALL LIMIT OUR RIGHT TO COMPLY WITH GOVERNMENTAL, COURT, AND LAW ENFORCEMENT REQUESTS OR REQUIREMENTS RELATING TO YOU AND YOUR USE OF OUR SERVICES.
All obligations and rights that by their nature are intended to survive termination or expiration of this Agreement will survive the actual or purported termination or expiration this Agreement.
We may deliver notice to you by means of e-mail, a general notice in the Services or on our Website, or by other reliable method.
Without limitation of any other term or condition of this Agreement, and for greater certainty, you hereby agree to indemnify, defend and forever hold us, including AppColony, Makeshift, and our affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns from and against all claims, losses, expenses, damages, and costs (including, but not limited to, direct, incidental, consequential, exemplary, and indirect damages, reasonable attorney’s fees and legal fees on a solicitor and own client basis), resulting from or arising out of (i) a breach of this Agreement, (ii) Your Content posted on the Services, (iii) the use of the Services by you or any person using your Account, username and password, or (iv) any violation by you of any rights of a third party.
You hereby expressly and irrevocably release and forever discharge us, including AppColony, Makeshift, and our affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims, and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the Services.
Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Agreement. Our rights, powers and remedies in this Agreement, including without limitation the right to suspend, restrict or terminate any use of the Services, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to us at law or in equity.
Notwithstanding any legislation to the contrary, we reserve the right, in our sole discretion, to terminate your access to the Services and related services or any portion thereof at any time, without notice, for any reason whatsoever. Upon termination of the Services, your right to use the Services immediately ceases. We shall have no obligation to maintain any if Your Content or to forward any unread or unsent messages to you or any third party.
If you choose to upgrade your plan or number of staff during your subscription period, any incremental cost will be pro-rated and billed alongside your next monthly billing, or within your multi-month subscription on a monthly basis.
You may not use the Services if the law of your location of residence or domicile prohibits you from doing so. The Agreement and your use of the Services shall be governed by and construed under the laws of the Province of Alberta, Canada, and the federal laws of Canada applicable in Alberta, without regard to principles of conflict of laws. Any disputes will be litigated before the courts of the province of Alberta, sitting at Calgary. We have the right, but not the obligation, to refer any dispute between you and us to mediation or binding arbitration. Should we elect to refer any dispute between you and us to arbitration, you agree to be bound by such arbitration. You agree to not commence any litigation against us in any jurisdiction other than Alberta or the Federal Court of Canada, and you agree to not commence any litigation against us by way of class proceedings, or to join any such class proceedings commenced by any third party.
Some jurisdictions may prohibit this provision. To the extent that such provision is prohibited in your jurisdiction, it will not apply to you strictly to the extent necessary to make this provision consistent with such prohibition.
We may at any time assign our rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement without our prior, written consent. This Agreement will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
Our relationship is that of independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Agreement or your use of the Services.
Neither party shall be responsible for a failure to fulfil its obligations under this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of nature, acts of government, war, riots, strikes and accidents in transportation, but excluding a lack of financing, cash or credit.
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
This Agreement, as amended from time to time, including any and all documents, websites, rules, terms and policies referenced herein, constitutes the entire agreement between us and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between us and you with respect to such matters.
The parties to this Agreement declare that it is their express wish that this Agreement and all related documents be drawn up in English. Les parties aux présentes déclarent que la présente convention, ainsi que tous les documents qui s’y rattachent, sont rédigés en anglais selon leur volonté expresse.